Spain's new piracy penalty: Six years in jail(zdnet.com)
zdnet.com
Spain's new piracy penalty: Six years in jail
http://www.zdnet.com/spains-new-piracy-penalty-six-years-in-jail-7000020973/
68 comments
Any jail time AT ALL is too much for non-violent crime. If a citizen is no threat to others, it is not necessary to take away his freedom (and along it, his job, and contact with his family). This is a monetary crime at best (usually, without profit for the pirate) and a monetary compensation is in order, nothing more. A hefty fine can hurt a lot and is a deterrent, but not taking away the ability to support oneself.
You think Bernie Madoff should have walked?
I do. You can't have a broad policy of "non-violent crimes = no jail time" if you do a case-by-case of "who we like" and "who we don't like." Because that's why Weev and other hackers are getting jail time.
So the worst penalty for a financial crime is to lose all your money? Low odds of being caught, very high reward, and assuming you didn't have money to begin with a zero penalty for being caught. Seems like a financial criminal's dream.
Well, if you really didn't commit the financial crime for monetary gain then what was it for ? Just trolling the copyright industry ? There needs to be a deeper look at the situation in this case because the law being discussed right now is really about pirates making money off being pirates.
How is losing all your booty not a big enough deterrent ?
Edit: Also, I'd like to make a distinction here between copyright infringement and financial fraud. I don't think it's been proven yet that people are losing jobs and companies are becoming bankrupt because of large scale copyright infringement. That isn't the same as financial fraud. Personally, I'd like my tax dollars to go first to a jail that houses someone that poses immediate physical danger to me or someone else. Then a list of other things. And finally to those 'dangerous' young'uns from the pirate bay. They're pretty far down the list of evil doers.
How is losing all your booty not a big enough deterrent ?
Edit: Also, I'd like to make a distinction here between copyright infringement and financial fraud. I don't think it's been proven yet that people are losing jobs and companies are becoming bankrupt because of large scale copyright infringement. That isn't the same as financial fraud. Personally, I'd like my tax dollars to go first to a jail that houses someone that poses immediate physical danger to me or someone else. Then a list of other things. And finally to those 'dangerous' young'uns from the pirate bay. They're pretty far down the list of evil doers.
>How is losing all your booty not a big enough deterrent?
If that's all you lose, it's not a deterrent at all. If the punishment for stealing is simply that I have to give back all that I got caught stealing, I would never not be stealing because there would be absolutely no risk that I would end up worse off than my present state.
If that's all you lose, it's not a deterrent at all. If the punishment for stealing is simply that I have to give back all that I got caught stealing, I would never not be stealing because there would be absolutely no risk that I would end up worse off than my present state.
Yes, you're right. But the idea is to take everything away + impose fines/penalties (but not like those $1 million per download kinds of fines). I just think that jail time seems overboard for this kind of thing. Even a fine that may take a few years to pay off is a pretty harsh punishment. But maybe it'll push our already talented pirates to do something more worthwhile and work to pay them back ?
If you have no money to begin with, you're probably in no position to commit a real financial crime. "Poor people financial crimes" are still crimes involving some level of physical violence (breaking into a house, picking someone's pocket, etc).
If you do have money to begin with, taking it all away and imposing fines/wage garnishment as penalties are a major deterrent.
If you do have money to begin with, taking it all away and imposing fines/wage garnishment as penalties are a major deterrent.
"Rich people financial crimes" involve an aspect of violence too, or at least can have the same impact as violence. When Bernie Madoff screws someone out of their savings, and that person then can't pay their insurance/medical bills, I would say that fits under a broad definition of violence.
For someone with Madoff's connections, it wouldn't be hard to acquire a false identity and resume some kind of low-level fraud. Putting him in prison is the best way to protect the public IMO.
I personally think that prison sentences are just as valid for non-violent crime as violent crime anyway. It's a disincentive, it's aptly punitive in cases such as Madoff's, and it makes it harder for the offender to re-offend.
For someone with Madoff's connections, it wouldn't be hard to acquire a false identity and resume some kind of low-level fraud. Putting him in prison is the best way to protect the public IMO.
I personally think that prison sentences are just as valid for non-violent crime as violent crime anyway. It's a disincentive, it's aptly punitive in cases such as Madoff's, and it makes it harder for the offender to re-offend.
You should watch CNBC's American Greed. Highlights numerous white collar financial crimes from pyramid schemas to embezzlement. Most people I found came from low wage jobs into multi-millionaires.
[deleted]
His work was indeed without profit. As the former non-executive Chairman of the NASDAQ stock market, and the admitted operator of a Ponzi scheme, how could he possible earn any profit from doing that.
Lets also eliminate the difference between infringement, and fraud. Next time apple sues someone that infringe on their swipe to unlock patent, they should add a fraud case to it. How dare those phones deceive users with Apple's gesture!
Lets also eliminate the difference between infringement, and fraud. Next time apple sues someone that infringe on their swipe to unlock patent, they should add a fraud case to it. How dare those phones deceive users with Apple's gesture!
[deleted]
I totally agree that 6 years is way too much. It's absolutely absurd. Punishment definitely doesn't fit the crime.
Perhaps this is not the best example given that Spain isn't from a common law tradition but I find the encroachment of criminal penalties for what are essentially civil matters very disturbing.
Criminal law exists to sanction actions that threaten society enough that the state is justified punish offenders ie murder or physical theft. Civil law by contrast exists to right wrongs between private parties ie suing for compensation.
Copyright violations strike me as a clear case for tort. It's a commercial, not a penal matter, but thanks to effective lobbying, the state has now become the MPAA's commercial lawyer.
Criminal law exists to sanction actions that threaten society enough that the state is justified punish offenders ie murder or physical theft. Civil law by contrast exists to right wrongs between private parties ie suing for compensation.
Copyright violations strike me as a clear case for tort. It's a commercial, not a penal matter, but thanks to effective lobbying, the state has now become the MPAA's commercial lawyer.
Civil law by contrast exists to right wrongs between private parties ie suing for compensation.
I'd be the first to agree that draconian penalties for copyright infringement are inappropriate, but I don't think the above is a strong argument, partly because it assumes that whoever is being sued for copyright infringement actually has sufficient funds to make good on any harm they've done, and partly because it assumes that harm can be quantified to a standard a court will accept. Neither of those things is necessarily true, though substantial harm may come to the copyright holder who has been wronged all the same.
I'd be the first to agree that draconian penalties for copyright infringement are inappropriate, but I don't think the above is a strong argument, partly because it assumes that whoever is being sued for copyright infringement actually has sufficient funds to make good on any harm they've done, and partly because it assumes that harm can be quantified to a standard a court will accept. Neither of those things is necessarily true, though substantial harm may come to the copyright holder who has been wronged all the same.
> Civil law by contrast exists to right wrongs between private parties ie suing for compensation
Civil law exists for exactly this reason, and has for hundreds of years. <http://en.wikipedia.org/wiki/Civil_law_(common_law)#Purpose>
Whether or not it is effective or fair is a different matter. As you point out, there are often financial & power imbalances between parties. One would have to make a very different kind of argument that this justifies the state prosecuting on the wronged party's behalf rather than say, making tort more equitable.
Civil law exists for exactly this reason, and has for hundreds of years. <http://en.wikipedia.org/wiki/Civil_law_(common_law)#Purpose>
Whether or not it is effective or fair is a different matter. As you point out, there are often financial & power imbalances between parties. One would have to make a very different kind of argument that this justifies the state prosecuting on the wronged party's behalf rather than say, making tort more equitable.
Okay, then you can jail people if and only if you prove beyond a reasonable doubt that the downloaders they enabled were going to buy that music otherwise. Criminal court? Criminal court standards.
Six years is still pretty fucking ridiculous. And I somehow doubt the newspapers will see any management go to jail for grabbing people's photos from Flickr.
Six years is still pretty fucking ridiculous. And I somehow doubt the newspapers will see any management go to jail for grabbing people's photos from Flickr.
>Okay, then you can jail people if and only if you prove beyond a reasonable doubt that the downloaders they enabled were going to buy that music otherwise.
Providing pirated content is against the law whether the downloaders were going to buy the music otherwise or not.
So I don't see how your requirement applies.
Providing pirated content is against the law whether the downloaders were going to buy the music otherwise or not.
So I don't see how your requirement applies.
This should not come as a surprise to anyone. Spain has been trying to crack down on piracy since the 16th century.
If I wanted "witty" puns I'd read reddit comments.
Spanish here (living outside).
I've work for the government and their lawyers, in companies based on pirated software (from MS, from Adobe, etc).
Can we please start fighting piracy there ?
Then we should follow fighting piracy in the power positions.
We have a lot of that, and trust me, even on public evidence of the crime, they don't go a single year to jail.
Maybe when all that is clean, we should think on how we can waste our jails better...
I've work for the government and their lawyers, in companies based on pirated software (from MS, from Adobe, etc).
Can we please start fighting piracy there ?
Then we should follow fighting piracy in the power positions.
We have a lot of that, and trust me, even on public evidence of the crime, they don't go a single year to jail.
Maybe when all that is clean, we should think on how we can waste our jails better...
Can you revise your comment? I can't understand it.
I think what this person means is that he's worked for both government, their lawyers and private corporations where there is evidence of large amounts of illegal software in use.
Also they are saying "let he who is without sin cast the first stone." i.e. they make sure their own house is in order before passing judgment on anyone else. Get rid of all their own illegal software and only then are they in a position to charge others with the same crime after all, nobody is above the law.
... except those with enough money or information to bribe, blackmail or topple governments and assassinate other world figures with impunity.
Also they are saying "let he who is without sin cast the first stone." i.e. they make sure their own house is in order before passing judgment on anyone else. Get rid of all their own illegal software and only then are they in a position to charge others with the same crime after all, nobody is above the law.
... except those with enough money or information to bribe, blackmail or topple governments and assassinate other world figures with impunity.
What he probably meant is that public institutions are the nest of most heinous file sharing that go unpunished, while individual owners and small business suffer the brunt of these laws.
Sorry, I think @balabaster did get it and did explain it more clearly than me. This is a very emotional topic for me and maybe I was not clear enough with the message I did want to transmit.
Spain, a country with high unemployment, takes a step towards crushing its IT infrastructure.
I'm not sure about the IT infrastructure, but it's quite fantastic what's going on!
The high unemployment is fantastic? Or the response in the face of it is?
As in the whole situation is surreal:
- high unemployment = no money - entertainment needs + no money = piracy
And now they've come up with jail time. Awesome. I wouldn't like to be the spanish gov right now.
- high unemployment = no money - entertainment needs + no money = piracy
And now they've come up with jail time. Awesome. I wouldn't like to be the spanish gov right now.
perhaps he meant "fantastic" as in "Imaginative or fanciful; remote from reality". As in, whoever thought of that law must be having the best dealer connections.
The whole situation in Europe is just a collective descent into madness, led by those in high offices. The only surprising part is that they're about 20 years past due.
a) it's a proposal
b) it's for the people operating/owning "link" sites that exist purely to profit from and facilitate piracy. These people gamble the income from millions or billions of monthly ad impressions are worth it, they don't deserve a free pass.
c) users of such sites are not being targeted, except by the site owners peddling mountains of spyware and affiliate scamware all over their sites
b) it's for the people operating/owning "link" sites that exist purely to profit from and facilitate piracy. These people gamble the income from millions or billions of monthly ad impressions are worth it, they don't deserve a free pass.
c) users of such sites are not being targeted, except by the site owners peddling mountains of spyware and affiliate scamware all over their sites
"it's for the people operating/owning "link" sites"
In other words, six years in jail for telling people where they can download possibly infringing copies of copyrighted material? Wow, when you put it that way, it sounds ten times worse.
In other words, six years in jail for telling people where they can download possibly infringing copies of copyrighted material? Wow, when you put it that way, it sounds ten times worse.
> a) it's a proposal
If this is all true I honestly don't see much wrong with this law. 6 years might seem like a lot for a non-violent crime like this but with the amount of money those sites can make anything less probably wouldn't be much of a deterrent.
"6 years might seem like a lot for a non-violent crime like this but ...". 6 years is a lot for a non-violent crime. Full-stop. It doesn't matter if you like the practice or not.
What happens if you have a legitimate publication and link to a source that happens to also have illegal material ? This opens a can of worms.
What happens if you have a legitimate publication and link to a source that happens to also have illegal material ? This opens a can of worms.
Good point. Also, applying the letter of the law here would require Google and other search engines to be prosecuted, because they certainly "...provide links to copyrighted material that is illegally distributed via other websites."
Nobody cares about incidental linking to infringing material. What they care about are streaming sites and file locker sites. SurfTheChannel is a good example, it was an index of links to pretty much any tv show or movie hosted on sites like the former Mega network etc:
"At the site's peak in mid-2009 it generated up to £50,000 ($78,500) per month in advertising revenue, and was more popular than Facebook"
http://en.wikipedia.org/wiki/Surfthechannel
"At the site's peak in mid-2009 it generated up to £50,000 ($78,500) per month in advertising revenue, and was more popular than Facebook"
http://en.wikipedia.org/wiki/Surfthechannel
Nobody cares about incidental linking to infringing material. What they care about are streaming sites and file locker sites.
File locker sites are not targeted. They're outside Spain anyway. The target are clearly the forums where people posts links to file lockers.
Do you think nobody cares about incidental linking? Just wait and see. What will happen when this law starts being applied? Obvious first move for these forums owners will be putting the sites out or spanish jurisdiction. People will also start to use other less specific forums to post links.
This measure will be useless, but legal monstrosities like "indirect profit" and other vague provisions will still poison the legal system.
This is just a dirty hack to placate US gov.
File locker sites are not targeted. They're outside Spain anyway. The target are clearly the forums where people posts links to file lockers.
Do you think nobody cares about incidental linking? Just wait and see. What will happen when this law starts being applied? Obvious first move for these forums owners will be putting the sites out or spanish jurisdiction. People will also start to use other less specific forums to post links.
This measure will be useless, but legal monstrosities like "indirect profit" and other vague provisions will still poison the legal system.
This is just a dirty hack to placate US gov.
So the site was more popular then Facebook, and therefore, we must take it down to protect the business interests of the RIAA and MPAA? Where are all those "vote with your dollar" people now? It sounds to me like people voted.
The people with the most dollars voted with them -- for a government that protect their interests over the people with smaller numbers of dollars.
If they made lots of money, good: they offered a service the public wanted. As far as that basic model goes they added value into the economy.
Anyone who wants to claim there is something actually materially bad there needs to provide evidence that some harm was done to the economy -- show that the public lost-out. That would be really quite interesting, because economic research seems to have had difficulty doing that so far.
Anyone who wants to claim there is something actually materially bad there needs to provide evidence that some harm was done to the economy -- show that the public lost-out. That would be really quite interesting, because economic research seems to have had difficulty doing that so far.
Except that those sites are not infringing copyrights. Those sites are just pointing people to the infringing copies. Take the sites away, and the infringing copies continue to exist, and everyone just goes to sites hosted outside the jurisdiction of Spain (or they find a new way to share the links).
> a) it's a proposal
In English: The US has expressed its threats again.
In English: The US has expressed its threats again.
"after pressure from the US over its piracy record".
As seen on the first group of leaks from wikileaks, Joe Biden pressured and threatened spanish government till they made a law then called Biden-Sinde or Sinde , as it was not enough for RIAA/MPAA lobbies, now we are going to have the new one and they have removed the right to remove DRM for backup personal copies also (which existed before) , when the corporation masters order the US politicians obey when the US politicians order the lame spanish politicians crawl and obey to their masters.
Edited to add that the piracy numbers they usually use for Spain are all lies.
> However, users of these link-sharing sites will not be targeted under the new law and search engines and peer-to-peer users will also be exempt.
Most of these sites are actually warez search engines. This makes this law pretty toothless.
Most of these sites are actually warez search engines. This makes this law pretty toothless.
Er, am I missing something... doesn't this violate section 20 of their constitution which guarantees a right to freedom of expression?
You're missing something. Regardless of the rights or wrongs of this particular situation, it's self-evident that a right to freedom on expression is not carte blanche to publish anything – you're still rightly subject to controls.
OK, there could be an argument that knowingly linking to infringing files is outside of freedom of expresssion. But the article says nothing about a knowledge criterion.
It says "owners of sites found to be making money [directly or indirectly!] from linking to pirated material will face prison sentences of up to six years and the closure of their site. ... users of these link-sharing sites will not be targeted under the new law"
This is even worse. Users who knowingly post links to infinging files would be a more appropriate target than the site owners. Under the new law, anyone who allows user posts will have to pre-moderate everything or prohibit users posting links?
The obvious problem with the law is much more basic: how can the site owner know whether there is or is not infringement at the other end of a link? Are site owners expected to somehow have a list of all copyrightable works and know the terms on which each of them is licensed to each recipient?
Placing the burden on the operator of the linking site creates a situation where no one will dare to make a link, because if it turns out to go to something infringing the linker will be subject to prosecution.
It says "owners of sites found to be making money [directly or indirectly!] from linking to pirated material will face prison sentences of up to six years and the closure of their site. ... users of these link-sharing sites will not be targeted under the new law"
This is even worse. Users who knowingly post links to infinging files would be a more appropriate target than the site owners. Under the new law, anyone who allows user posts will have to pre-moderate everything or prohibit users posting links?
The obvious problem with the law is much more basic: how can the site owner know whether there is or is not infringement at the other end of a link? Are site owners expected to somehow have a list of all copyrightable works and know the terms on which each of them is licensed to each recipient?
Placing the burden on the operator of the linking site creates a situation where no one will dare to make a link, because if it turns out to go to something infringing the linker will be subject to prosecution.
This is what I found with a quick search on the Constitute Project:
"the right to freely express and spread thoughts, ideas and opinions through words, in writing or by any other means of reproduction."
"the right to freely express and spread thoughts, ideas and opinions through words, in writing or by any other means of reproduction."
This would imply that it's not against the law to post a link to other material regardless of the legality of that material. It's exactly the same as saying "Go to X address if you want to obtain illegal drugs" and then getting arrested, charged and imprisoned for sending someone to a known dealer...
That actually has been the law in the US (not sure whether it still is). There was a case where someone lived next door to a dealer, and customers were frequently knocking on this person's door mistakenly. One time it was an undercover cop, and the resident said "wrong door, the dealer is over there", and was arrested and prosecuted.
Use Ubuntu, employ programmers without work in Spain to replace proprietary software with opensource government systems. Save a lot in the long run on license costs. Proprietary software companies will become desperate and offer huge software rebates.
This has been done already for years. Regions like Andalucia, Galicia or Extremadura have been enforcing the use of free software, even creating their own Ubuntu based distros.
It's not software piracy what is being targeted here, but movies and music. The software industry can't (or doesn't want to) lobby as hard as the entertainment industry.
This isn't even about Spain. Once the precedent is set internationally, they will argue they need to bring the US laws in line with international law.
Jeez, if I was Spanish I would probably get the chair.
This makes as much sense as life in prison without the possibility of parole for littering.
US can't impose trade sanctions on a EU members without incurring the wrath of the EU so very unlikely.
Really? Cause it looks to me like USA is doing exactly whatever the fuck it wants.
In the end a lot of this is done behind the scenes, EU spirit may be OK, but the signing is done by people and people can be threatened, bribed etc.
In the end a lot of this is done behind the scenes, EU spirit may be OK, but the signing is done by people and people can be threatened, bribed etc.
Pretending the Spanish government has no responsibility for its actions makes it so much easier for the US to get its way, but I guess it makes people feel better.
The Spanish government has the primary responsibility of protecting its own citizen's interests, chiefly basic freedoms.
The only way it can be done in any way is is EU sanctioned it's members as well (don't recall it ever happening) otherwise merchandise would simply find another route to get to Spain or the US sanctions the entire EU (shooting itself in the foot).
Although i kinda wish they did. They EU is not some lightweight when it comes to economic power.
Although i kinda wish they did. They EU is not some lightweight when it comes to economic power.
They may not be lightweights, but all the economic powers are in bed together anyway. If they're not in line with the U.S. the leaders are bribed, toppled or assassinated by them. It's really quite disgraceful how they all act at the top of the food chain. There's no honour amongst thieves.
Unfortunately true, the only thing keeping them in line is the odd street protest or risk of revolution.
Problem is things need to become very bad before people start going into the streets.
Because ultimately the only things that sends people to the streets are things that truly threaten their freedom or existence. Does anyone really care about movies or music enough to cause riots? My opinion is that if it really comes down to brass tacks, people would more likely stop listening to music and stop watching movies before they riot.
However, I realize this is not the point, this is the start of a slippery slope. If they can curtail freedom of expression in this instance, what other instances will they think they can curtail it also? What does that lead to? Eventually all freedom of expression could be removed based on a single precedent - is this that precedent?
Further to this, if all freedom of expression is removed, what then? When people can't express themselves freely, is that cause for a riot? That depends largely on the culture of the country - so is Spain a country that's likely to riot if their freedom of expression is removed? Only those that grew up there and live there every day can answer that question.
However, I realize this is not the point, this is the start of a slippery slope. If they can curtail freedom of expression in this instance, what other instances will they think they can curtail it also? What does that lead to? Eventually all freedom of expression could be removed based on a single precedent - is this that precedent?
Further to this, if all freedom of expression is removed, what then? When people can't express themselves freely, is that cause for a riot? That depends largely on the culture of the country - so is Spain a country that's likely to riot if their freedom of expression is removed? Only those that grew up there and live there every day can answer that question.
On the other hand, I personally see this as part of a policy of appeasement and am now waiting for some huge 'donations/low interest loans' to come out to Spain from the USA/MPAA/RIAA/etc.
I'm not Spanish but I have seen the culture of copying and sharing and using pirated software that exists in Spain. A penalty like this may shut down a file locker or two, or may even take down a few torrent sites, but it will do nothing to deter file sharing in general - what's more ridiculous is that the proposal clearly states that it's in line with the people's culture to generally share software/music/movies/games/etc.
Given that it's such a half assed effort it could only be a response to pressure from the US, a response tuned to not raise too many eyebrows in Spain but at the same time unlock some bonuses/favors from the US govt.
Ultimately I think this has come as subsequent pressure and a fallout from the whole Rojadirecta debacle a few years ago.[1] (those guys basically sued the US government for seizing their domain... AND WON[2]!)
1 - http://torrentfreak.com/tag/rojadirecta/
2 - http://torrentfreak.com/u-s-returns-seized-domains-to-stream...