In a case filed by the SGAE (the Spanish equivalent to the RIAA) against elrincondejesus, a torrent hosting website, a court in Barcelona recently sided with the website, and seemingly with the ability of internet users to pirate copyrighted content for non-profit reasons legally.
Alex Wilhelm has already explained the bulk of the details on the case here. One should not, however, read too much into this decision as an harbinger of things to come.
Firstly, in Spain, as in any other civil law country, there is no such thing as a judicial precedent, that is to say, where a prior judicial decision influences subsequent rulings by other courts. Judicial precedents are found in common law countries such as England and Wales or the United States.
In civil law countries, the decision by a court is valid only within the parameters set forth by the parties in the documents and as a rule of thumb produces effects only on the same parties. In the future another Spanish judge may or may not have the same opinion about similar facts and law as the one now espoused by the Barcelona judge. He is free to decide in accordance with his own opinion.
Secondly, the ruling was produce by a first instance court and the losing party is still in time to appeal to a higher court. Traditionally, judges in higher courts tend to be older and although the first instance judge has shown an excellent grasp of technology and the underlying issues it raises, I wonder if the appellate judges will show such proficiency with technology.
Bearing this in mind, I would say an interesting legal decision has been produced but that we should not look too much into it. At least for the time being.
Hi! Do you know what the Portuguese law says in what regards the use of copyrighted content for personal (non-profit) purposes? I keep stumbling with contradictory information about the subject…
posts like this in the PT site may help some people think that Portugal is really part of spain
(we are not!)
@Filipe
I wouldn’t bet in the legality of it and have always defended a risk management approach to the issue (hint: Zwame).
@Damiansen
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It was posted in the PT channel because there is where I write, although the aim had been for it to be pulled to the main channel (as it happened). Not because we are the 19th province of Spain
> “Firstly, in Spain, as in any other civil law country, there is no such thing as a judicial precedent, that is to say, where a prior judicial decision influences subsequent rulings by other courts.”
This is not true. Quebec uses the civil code, inherited from France, while the rest of Canada uses common law, and Quebecs civil court system certainly recognizes judicial precedents set in other Quebec courts.
That’s not true…again!
In Spain judges do use judicial precedents!
What can happen, and it happens a lot, is that a judge from Barcelona will rule in other direction than a judge in Madrid… But hey, they even want independence so… go figure.
Also, writing this in the PT part of the site is bad as Portugal IS NOT Spain.
@Barbara, thanks for your comment.
There is always a “black swan” lurking somewhere waiting to pop up.
I was careful with the wording chosen on that sentence. For instance, I mentioned civil law “country” and not “system” to avoid situations such as the one you identify (although I’m happy to confess being unaware of Quebec’s in advance) where a country has more than one system and compromises have to be made between both for articulation sake. I also used as examples “England and Wales” and not the “UK” on purpose (since they are countries and Scotland has a mixed system).
Further to the point I tried to be clear and straight without overbearing detail or legalese jargon. The category I had in my head while writing was “European civil law countries from a French matrix” but thought it would bring more confusion than explanation to the bulk of our readers.
Hope this explains it more clearly.
@Jacinto,
The fact that a certain decision is produced by a court in Spain, that does not mean others in the future have to abide by it as you clearly point out yourself. Yes, in Portugal and Spain sometimes judges indeed refer to previous decisions taken by other courts, but they do so at their discretion. This is the key issue here.
The reason for this post to have been written in the PT channel of TheNextWeb was explained in one of my previous comments.