[pp.int.general] New Spanish law proposal

[Félix Robles]

I'm not the appointed Spanish international relations speaker, but as a
member of the Spanish PP (PIRATA), i'll try to inform you (all):

Although there's been new announcements on the press, and although the
government's cabinet has agreed to send the draft of the law to the
consultive bodies, the actual text has not been released yet (it will be
released this Monday 11th). Therefore, we'll wait until Monday instead of
rushing into releasing a new press release without having read the actual
draft.

Anyway, I'll comment here what's supposed to be released on monday:
A draft of the Sustainable Economy Law will be presented to the public and
to the consultive bodies. This law is very large and touches and modifies a
lot of laws, and most of them are unrelated to the matters we address on the
Pirate Parties, but, in the last minute, the governing party of Spain
(PSOE=socialists) added a final provision, which is what everyone in Spain
and abroad is criticising.

This provision introduced on the law, allows one Commission of the Ministry
of Culture (a non-judicial administrative body which members are chosen
through string-pulling, = without judge) to close websites as a
precautionary measure, skipping the "annoying" due proccess of a judicial
process. This is against our constitution (article 20.5 is the most
clarifying) and that draft was presented in the early December.

As the earlier draft was mostly received with rage and a powerfull
opposition by everyone including the leading opposition party, the governing
party has been trying to make up the draft so it looks a little more shiny.

Without the draft that's going to be released on Monday, we can only rely on
the information on the press, and it looks like the socialists won't change
a single comma of the draft they presented this early December. Instead,
they want to make up the draft by introducing a misguided *regulation*.

This regulation introduces a judge in the mix. The proceeding will be the
following, apparently:

Someone denounces that he believes a website is distributing contents that
they are not authorized to distribute.

Then, the appointed Commision of Intelectual "Property" will check the
denounce and send two warnings to the website.

 If the website does not comply with the request, the Commission will ask a
judge: Does deleting this content affect the freedom of speech or
information right's of the webmaster? If the answer is yes, a due judicial
process will follow.

If the answer is no (and that's what will happen if the webmaster of the
pirate bay -for example- has not integrated a newspaper or blog into the
tracker), then, the judge will grant an authorization withing 4 days. The
thing is that the judge will only address the question *"Does deleting this
content affect the freedom of speech or information right's of the
webmaster?"* which is a non essential question, because the core subject is:
*Does the webpage actually* *infringe any copyright law?*

As the judge won't address the core subject, it will be the Commision that
will be actually closing a website (as a precautionary measure), and not the
judge. And that, my friends, is not only morally wrong, but absolutelly
collides with our Constitution, which is very clear in the article
20.5<http://www.senado.es/constitu_i/articuls/arts.html#t1c2s1>(link
to the Spanish Constitution in english):

*"The seizure of publications, recordings and other means of information may
only be carried out by means of a court order. "*

Note that a court order is not the same as a judicial authorization. A court
order, of course, always addresses the core subject (in this case, the core
subject is: Does the webpage actually infringe any copyright law?). The
socialists (governing party) have been very intelligent by adding a judge in
the mix, therefore making some people believe that the law is legal, but
it's not legal, it's clearly against our Constitution, because the judge
actually does almost nothing, as he doesn't address the core issue of the
report.

As of now, without this law, of course that it's possible to close a website
as a precautionary measure, but the mentioned Commission doesn't participate
in the process in any moment,  the process to close a website as a
precautionary measure takes about 2 months (and not 4 days), and of course
it is a due judicial process with a court order where the judge addresses
the core issue: Does actually the webpage actually infringe any copyright
law?

I should also note that this law draft doesn't change a comma of the
Intelectual "Property" Law: they don't want to change the law, they want to
bypass the judges and let their appointed friends of the administrative and
non-judicial body called Commission of the Intelectual "Property" (members
of our particular spanish RIAA, Warner and so on) interpret the law on their
own way.

And that's because, as of now, in Spain every sentence of every judge has
always given the reason to the owners of websites, wheter they profited from
ads or not.

I've counted and there's been about 7 press releases on the subject, but we
haven't received decent press coverage. I mean, yes, the issue has been
brought to the public attention for a minute or two here and there in TV,
but not mentioning us particulary I believe. Though we've been on the
national radio and we've also participated on a TV program of a autonomous
community. We have received decent coverage on internet.

Félix Robles,

member of the Spanish Pirate Party


PD: I hope it's not too long, it took me a while to write it!

On Sat, Jan 9, 2010 at 11:33 AM, Rick Falkvinge (Piratpartiet) <
rick at piratpartiet.se> wrote:

> There's a new Spanish law proposal allowing judges to shut off websites
> with a minimum of red tape, if accused of contributing to infringement.
>
> I'm assuming PPES is all over this? How many press releases have you sent
> on the subject, approximately? Have you received decent press coverage (TV,
> etc)?
>
> Rick
>
> ____________________________________________________
> Pirate Parties International - General Talk
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>
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