From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Tuesday, 20 January 2015

Exodus 2.0: pirate sites and the seven seas

Last week, the IPKat published a guest post from Spanish IP enthusiast Míchel Olmedo Cuevas on how Spain spent its first month without the benefit of Google News's aggregation service.  Tonight the Kats are pleased to post another guest piece from Michel on life in Spain in this testing period for copyright owners, legislators, consumers and internet service providers alike.  This is what Michel writes:

Exodus 2.0: pirate sites and the seven seas

Fairly recently, English director Sir Ridley Scott delivered his most recent film to cinema screens worldwide under the title “Exodus: Gods & Kings”. This new re-imagination of the book of Exodus is the latest film to top the charts, both at the cinema and on pirate sites, which gives us a great motive to talk about the current situation of this kind of sites in Spain.

The Office of the United States Trade Representative (USTR), has been delivering for years the Special 301 Report, ranking countries by the extent to which they provide protection for intellectual property rights, taking into account many factors, one of which is how they tackle piracy (you can find the latest Special 301 Report here). Spain has been listed as a “Watchlist Country” consistently between 2008 and 2011, because Spanish law did not, according to US expectations, provide sufficient level of protection. Spain has been out of the list since the Parliment approved the “Ley de Economía Sostenible” (Sustainable Economy Act), also known as “Ley Sinde/Wert” (as those two were the ministers under whom the bill was drafted and passed, respectively). The relationship between this new Law and the Special 301 Report can be seen in the cables leaked by WikiLeaks, eg here and here.

After this, even though new levels of protection were in place, the most relevant point, the provision of links to P2P networks, still was not treated as a criminal offence under Spanish law, as we can see in the famous cases of Sharemula (2008) and Pablo Soto (2014). Along similar lines, providing links to streaming pages was not considered illegal, even if those contents infringed intellectual property rights, as happened in Rojadirecta (2011).

This has been the status quo in Spain until late last year, when Parliament passed its latest reform on the Intellectual Property Act 1/1996. This has drawn a lot of attention, mainly because of the so called “Google Tax”, that has been extensively reviewed, both in terms of the law and its consequences.

The other major point of the reform is the position of those web pages that provide links to unlawful content. As of January 2015, all these pages would be liable for fines up to €600,000, as well as the closure of the site and removal of all infringing content (a more in-depth study can be found here).

Frequent users of these pages did not have to wait long to see the results of these measures. While some pages like Series.ly simply decided to remove all infringing links and become just a themed social network, others have chosen to either close or to relocate in order to avoid being shut down like The Pirate Bay (despite this, the closure of TPB has not changed much, since their whole repository has been uploaded to a new page by Github, as well as their platform, which is now freely available with an open source licence for everyone who wishes to create a similar platform with its source code). Most of the pages that opted for relocation chose to do so in remote islands such as Sint Marteen (www.seriesyonkis.sx) or Tonga (www.seriespepito.to), known for their soft or non-existent intellectual property regulations and which derive huge profits from their gTLD domains (those two domains are also quite appealing for other obvious reasons…).

In this situation, the most logical conclusion is that, despite the best intentions that were in the legislators’ hearts when passing the bill, the true nature of the internet was never taken into consideration, and the only real consequence was that all these pages had to relocate, while all the infringing content that the new law wanted to take down is still completely available for all users.


This is a further fresh example of the power of the internet and the need for unified international regulation on the net. As long as all sanctions remain local and penalties can only be imposed on the nationals of a state or on those who commit a crime in its sovereign soil, there is no real chance for a true worldwide copyright enforcement policy.

6 comments:

Sorin B said...

Please find below the latest US 301 special report (2014):

http://www.ustr.gov/sites/default/files/USTR%202014%20Special%20301%20Report%20to%20Congress%20FINAL.pdf



IPDoge said...

Much guest posts, such IP enthusiast, many Michel, wow

Andy J said...

Given its undoubted concerns about the behaviour of other states, I wonder when we can expect the USA to comply fully with its obligations as a signatory to the Berne Convention. Although the Special 301 list has been in operation for 25 years, the USA signed up to Berne very nearly 26 years ago.

Anonymous said...

Andy J,

I think there is some small misconception about how the Berne Treaty affects US law that can be cleared up.

In the US, such treaties are not what we call self-enacting. IN other words, just because we signed a treaty (this type of treaty), does not mean that it is our law and that we have to follow what we signed.

Here in the US, while the executive branch can sign, it is not that branch that enacts this type of law. Think of signing a treaty as merely a first step. The real step - the big step - is then to convince our legislative branch to pass an enacting law. We have this system in place due in part to the aversion of our founding fathers of placing too much power in the hands of the executive and a reticence of becoming too ensnared in the cross affairs of other nations (we have this little thing about independence).

Understanding this subtle wrinkle hopefully lessens the acrimony that comes across in your post.

Andy J said...

Anon @ 13.52
Many thanks for your comment. In fact I am aware of the basic roles of the Executive and the Legislature in the USA. My point was that the Special 301 report highlights, in some detail, the failings as seen by the USTR of the IP regimes of many other states (whose governments possibly operate in much the same way as the USA when it comes to implemebting international treaties) yet is itself failing to live up to what WIPO and other signatory nations expect of it. Let's face it, during the past 25 years there have been many occasions on which Congress and the administration have been on the same side and could have introduced legislation to incorporate moral rights into the Copyright Act, afterall there was plenty of enthusiasm for the Sonny Bono Term Extension Act, yet they have failed to do so.

Anonymous said...

Thank you for the response Andy J.

While you state that you are aware of the roles in the US, your posts continue to exhibit some confusion, or at least some unrealistic expectations that reflect confusion despite what you say.

For example, your statement of " yet is itself failing to live up to what WIPO and other signatory nations expect of it" fails to realize that other nations SHOULD expect that a mere signing of a treaty is just NOT enough to establish a legal expectation of action from the US.

Your expectation then, STILL needs to be reset to a properly understood expectation.

No foreign body should expect anything otherwise than what our sovereign laws provide. Mutual respect for sovereignty demands at least that much.

Whether or not the aforementioned US list lives up to this notion, I do not comment upon (fully realizing that my nation may in fact be quite hypocritical in according a respect for other sovereigns).

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':