When we talk about file-sharing, there’s a whole spectrum of issues that usually get mixed up or treated as one when they’re really very different things.
Is it OK to borrow an audio CD I just bought? Is it OK to play it to some friends at a party? Can I convert it into MP3 files or make a copy? Is it fine if I put it in a shared folder of a P2P application such as eMule?
At the other end of the spectrum, you’ve got creators of P2P apps, owners of link sites (sites that generally don’t actually host any content, they just link to content that resides elsewhere) and torrent trackers.
Sometimes, you’ll hear that all of the above are illegal. Often, extreme examples such as “listening a CD with a friend” will be laughed at (well of course you can do that) but when it comes to creating a simple backup copy, it’ll be called a gray zone or even declared illegal.
Very rarely you’ll hear a court decide that linking to copyrighted material is OK, but this is exactly how Spanish judge Raul N. García Orejudo ruled in a case of Spanish music collector society SGAE (Sociedad General de Autores y Editores) vs. Jesus Guerra, owner of link site www.elrincondejesus.com.
Do judge Raul’s arguments make sense? You bet they do. First, he denied SGAE’s request to shut down Guerra’s site in June, saying that “P2P networks, as a mere transmission of data between Internet users, do not violate, in principle, any right protected by Intellectual Property Law.”
Now, he decided that “offering an index of links and/or linking to copyright material is not the same as distribution.” His decision was largely based on the fact that Guerra doesn’t make any direct or indirect profits off the site.
Without going into the moral side of the story, it’s obvious that there’s not a very big difference between a site like www.elrincondejesus.com and Google. And if you start going that road, you end up with weird legal precedents, such as the recent decision by an Italian court, which found Google Italy execs guilty over an offensive video Google had failed to remove from its index.
There’s no doubt that SGAE will appeal the decision. But this ruling once again shows that not everything is as black and white in the world of file-sharing as the recording industry would have you believe.