VZCZCXRO7434
RR RUEHAG RUEHDF RUEHIK RUEHLZ RUEHROV RUEHSR
DE RUEHMD #0410 1131433
ZNR UUUUU ZZH
R 231433Z APR 09
FM AMEMBASSY MADRID
TO RUEHC/SECSTATE WASHDC 0546
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE
RUEHLA/AMCONSUL BARCELONA 3960
RUCPDOC/DEPT OF COMMERCE WASHDC

UNCLAS MADRID 000410 
 
SIPDIS 
 
STATE FOR EEB/TPP/IPE AND EUR/WE 
STATE PASS USTR FOR JGROVES AND DWEINER 
STATE PASS U.S. COPYRIGHT OFFICE 
USDOC FOR 4212/DCALVERT 
USDOC ALSO FOR USPTO 
 
E.O. 12958: N/A 
TAGS: KIPR ETRD ECON SP
SUBJECT: SPAIN IPR: CRIMINAL CONVICTION IN INTERNET PIRACY 
CASE 
 
REF: A. MADRID 224 
     ¶B. MADRID 397 
 
 ¶1.  Summary: On April 9, a court in Logrono delivered 
Spain's first-ever criminal conviction and prison sentence to 
an individual for operating a for-profit website that 
facilitated peer-to-peer (P2P) file-sharing.  Adrian Gomez 
Llorente was sentenced to six months in prison and fined 
4,900 euros (about USD 6,450) for making available illicit 
copies of films and video games. The sentence was suspended 
because the 22-year-old defendant was a first-time offender. 
Nevertheless, content providers' representatives hailed the 
verdict as an important milestone that is expected to help 
sensitize the general public as well as the law enforcement 
community to the plague of internet piracy.  End Summary. 
 
¶2.  The judge for the first district court for Logrono (La 
Rioja - north central Spain) found that the defendant was 
operating his file-sharing website for profit.  In order to 
download files, viewers had to register on the site, where 
they were exposed to paid advertising, and to authorize the 
sending of more advertising via SMS, for which the operator 
collected a fee.  The Penal Code identifies profit motive as 
a required element of IPR crime, and the 2006 Circular (ref 
A) issued by the Prosecutor General's Office (Fiscalia) 
directs prosecutors to pursue internet piracy cases in which 
commercial profit cannot be established as civil rather than 
criminal offenses.  (Note: As discussed ref A, other 
formidable legal obstacles impede civil litigation in such 
cases.  End Note.)  Rights-holders have long complained that 
this posture not only effectively decriminalizes infringing 
P2P downloads but also makes it extremely difficult to 
prosecute and convict operators of file-sharing sites.  Other 
courts have dismissed similar cases on the grounds that the 
generation of advertising revenue was incidental or ancillary 
to the activity of providing or making available infringing 
material and that the element of commercial profit was thus 
lacking. 
 
¶3.  According to Jose Manuel Tourne, Executive Director of 
the Federation for the Protection of Intellectual Property 
(FAP), which represents Spanish film and entertainment 
software interests, in 2006 the National Police conducted 
enforcement actions that led to the takedown of some 30 
offending websites.  Another 20 sites were closed the 
following year as a result of additional operations.  Cases 
arising from the takedowns have been moving their way slowly 
though the respective district courts.  Many courts have 
dismissed cases on various grounds.  An unknown number remain 
to be decided.  The most controversial judicial decision 
involved the "Sharemula" website, in which a Madrid court 
found in 2007 that facilitating P2P file-sharing via eMule is 
not a crime nor even an IPR infringement so long as a site 
does not itself contain or download an illicit file, because 
making links available is not an act of public communication. 
 A Madrid appeals court upheld the ruling in September 2008. 
According to law enforcement and rights-holder contacts, 
police no longer undertake criminal investigations of such 
sites because the bar for successful prosecution has been set 
too high. 
 
¶4.  The ruling in the Logrono case is final because neither 
defense nor prosecution plans to appeal.  The defendant's 
lawyer still asserts that what his client did is not a crime, 
but says he advised the defendant to accept the verdict to 
avoid a likely expensive civil suit.  The decision has no 
precedential force.  Judges in Spain are independent not only 
of other branches of government but of each other, unless and 
until the Supreme Court issues a binding decision, which it 
has not done in the area of internet piracy.  But Tourne and 
other rights-holders were excited by the conviction and 
sentence, saying that it may at least influence judges with 
similar cases in other jurisdictions and that the publicity 
it has generated will help disabuse some internet users of 
the widespread public belief that unauthorized P2P activity 
is legal and permissible.  This decision, together with 
recent internet piracy-related news in Spain and elsewhere in 
Europe - the controversy surrounding the new Culture Minister 
(ref B), the setback to proposed anti-piracy legislation in 
France, and the convictions and sentences in the Pirate Bay 
case in Sweden - have helped invigorate the public debate 
over internet piracy. 
CHACON