Spanish court rules that links to p2p content are legal

By EDRi · March 24, 2010

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Deutsch: [Spanisches Gericht urteilt: Links zu P2P-Inhalten nicht gesetzeswidrig |]

A civil court in Barcelona has recently ruled against SGAE (the Spanish
collective society of authors and editors) in a case brought against Jesus
Guerra who was administrating a site called with links
to P2P content.

SGAE accused Guerra of infringing copyrights by having reproduced and
communicated to the public works owned by their constituency. The defendant
argued that his website was a non-profit site only providing links that
could be used by users only through eMule, a P2P application, to connect to
other Internet users. No content was actually hosted on that specific

The judge ruled in favour of the defendant arguing that linking “does not
suppose distributing, reproducing or making publicly available copyrighted
works.” In the judge’s opinion, the creation of an index of links is not an
infringing practice as linking is an integrant part of the Internet.

“P2P networks, as mere conduits in the transmission of data between
individual users of the Internet, do not infringe any right protected by
Intellectual Property Law. Some P2P networks contain files that are not
protected. There are also works which are no longer protected because the
term of protection has run out; and there are works whose protection is not
allocated to SGAE. Therefore, it has become necessary to clearly delimit
which works are protected, and what conducts can infringe Intellectual
Property Law, which was not done in this occasion,” said the judge who
considered it was difficult to clearly identify P2P users and the files they
are sharing, even if they are
infringing copyright and that the legislation in force was not adequate for
the new technologies.

He concluded that “this is a mere exchange of files between individuals,
without commercial gain, directly or indirectly (as it is difficult to
establish a causal relationship between downloading and not
purchasing a work) through a medium such as the Internet, which is distinct
from other obsolete technologies ( such as exchange or copy of tapes), in
the fact that it has become massive and global, as is the distribution by
the same medium of publicity, access and authorised communication of works
by their authors or managers with the corresponding monetary rewards and
cultural diffusion”.

The SGAE will probably appeal this decision.

Despite this promising decision, the situation might change in Spain with
the modification of the legislation by the Government through the proposed
Sustainable Economy Law presently under discussion. (See article 5 from
current EDRi-gram).

A civil court declares p2p downloading networks legal (only in Spanish,

The keys of a historical sentence in favour of P2P in Spain (only in
Spanish, 15.03.2010)

Commercial Court sentence (only in Spanish, 12.03.2010)

Linking to P2P content declared legal in Spain (14.03.2010)

Linking to P2P content declared legal in Spain