An overview on the case Pablo Soto vs Promusicae, a brief explanation on both positions and how could we arrange the legal problem.

1. Otoño
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MDMK
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Virtual Companies Legal Enviroment
P2P: Pablo Soto against the music industry
05/07/09

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Elena Ibáñez Viñes
Introduction
Peer-to-peer (P2P) networking is a method of delivering computer network
services in which the participants share a portion of their own resources, such as
processing power, disk storage, network bandwidth or printing facilities. Such
resources are provided directly to other participants without intermediary network
hosts or servers. Peer-to-peer network participants are providers and consumers
of network services simultaneously, which contrasts with other service models,
such as traditional client-server computing where the clients only consume the
server's resources.
Thus, P2P programmes facilitate the sharing of information among people so…
what’s the problem?
The problem is that there is a lot of companies which business model is to sell the
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3. products those people are sharing for free through the P2P, so it is always one
part that loses.
I will analyze this topic here through a very well known Spanish case, Pablo Soto,
and will try to explain both positions from each side’s stand point.
The P2P side: Pablo Soto
Pablo Soto is an international pin-up in the file-sharing world. After leaving school
at 16, he set up in his grandmother's apartment in Madrid and in 2001 launched
Blubster, one of the world's most popular peer-to-peer file-sharing programs of
recent years. Now with 29, he is president of his own company and says he makes
a modest living from advertising on his sites.
In Pablo Soto’s opinion, his programs are legal internet tools and he is not
responsible for what people do with that tool; he thinks they are not just for illegal
music downloads because P2P file-sharing has many more uses. When he spoke
out of the court last month he said: "Technology is always neutral, and you cannot
accuse the developer of a program because of the use made of it by its users."
The most important argument Soto explains is that if he is guilty, so are companies
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such as Google or Spanish telecoms giant as Telefónica, which permits the
process.
He described how he designed Blubster out of curiosity and initially distributed it
among friends. But within days, he found that nearly a million people worldwide
had downloaded it.
He admits he makes money from advertising but insists this is perfectly legal. He
said that claims he has made vast sums of money are ridiculous, arguing that he
has never had more than 15.000 € in his bank account, still operates out of his
grandmothers apartment and lives in a rented flat.
The industry side: Promusicae
Promusicae, the Spanish record label association that includes Sony, Universal,
Warner and EMI, is suing Pablo Soto for 13 million € on grounds of "unfair
competition" because they think P2P companies are profiting by developing
applications that are used for piracy.
In Madrid's superior civil court Promusicae has branded Pablo Soto an Internet
parasite who robs artists and record companies by facilitating illegal downloads of
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5. music and other copyrighted protected material with the Manolito/MP2P program,
and the Blubster and Piolet file-sharing applications.
Several sources estimated that combined, these three pieces of software have
been downloaded more than 25 million times. The 13 million € claim for damages
is based on the assumption that each one of these people has downloaded at
least one track without paying for it.
The alliance, which includes Promusicae, says the industry in Spain lost 1.6 billion
$ in revenue in 2.007 and 2.008 because of piracy. Promusicae says the industry's
work force has declined by 70% over the last few years and hopes the case will
force Spain to finally draw up new legislation and enforce it.
The context: P2P legal environment in Spain
Downloading copyrighted material is illegal in Spain but it is not a criminal offence,
and courts consistently throw out cases on grounds that it is an infringement only if
used for commercial profit.
In May Spain was among five countries singled out by members of the US
Congress for "alarming levels" of piracy of copyrighted movies, music, video
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games and other entertainment.
This stance not only infuriates music companies but irritates the US's powerful
entertainment lobby. The US copyright industry group International Intellectual
Property Alliance says some 2 billion music tracks were illegally downloaded in
Spain in 2.008, compared to 2.2 million purchased legally.
The paradox: Pablo Soto protects his stuff
To complicate more this situation, Pablo Soto, the hero of free downloads,
prohibits the copying of their programs in his website. When any user tries to
download a program created by him, such as Blubster, Piolet and Manolito, you
get a notice that warns you that these programs are subject to copyright,
according to international laws and in particular, of the United States and Spain.
It is hard to understand why Pablo Soto is making a difference in the technological
treatment between “programmes” and “products”, when his position explained by
his lawyer is this one: "You can't stop this movement. There is a new social reality.
Industry must embrace technological developments, not fight them".
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7. Conclusions
It is clear that we are facing nowadays an important legal problem regarding digital
file sharing. It is true that a technology that allows a crime to be committed should
not be punished just for allowing the crime. But it is also true that law should
protect those people or companies that are making business by legally selling their
products.
Why?
Because as Pablo Soto himself is doing in his own site, everybody wants to
protect his own work.
So, what should be the solution in my opinion?
To create a law that just punishes for the illegal acts, clearly differentiating what is
a crime from what it is not a crime.
Developing a programme that allows file sharing IS NOT a crime, because sharing
a file on the Internet is not a crime itself. BUT if a user is getting money from piracy
should be persecuted. It is just like drugs law, nobody is persecuted for smoking
marihuana at home, but if you make business with drugs, you will go to prison.
This is all about intentions, and the common sense behind drugs law should be
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present here too.
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