La Audiencia de Cartagena y los servicios de información de los USA

La liberación generalizada de los “cables” de la Embajada Norteamericana por parte de WikiLeaks permite comprobar, no sin cierto asombro, la atención que dedican los estadounidenses a nuestra pequeña región. Aparte de los esperables cables confidenciales relacionados con las actividades militares de Cartagena me llaman especialmente la atención los cables relacionados con la defensa de los derechos de propiedad intelectual y el impacto que causó el auto de sobreseimiento dictado por el juez del Juzgado de Instrucción número 4 de Cartagena -De la Torre Guzmán- en las Diligencias Previas/Procedimiento Abreviado número 665 /2007.
Es preciso recordar en este punto que toda la actuación de las autoridades españolas en materia de propiedad intelectual -y, a juzgar por el contenido de este cable, esa vigilancia incluye a nuestros jueces- es seguida estrechamente por las autoridades norteamericanas que tratan de imponer una legislación favorable a sus intereses comerciales usando de todo tipo de medios de presión.

Pues bien, para mi sorpresa, husmeando entre los “cables” de la Embajada Norteamericana en Madrid relativos a propiedad intelectual me he encontrado con este cable de fecha 28 de octubre de 2009 (“sensitive but unclassified”) en el que se hacen eco de la resolución de la Audiencia Provincial de Cartagena (AKA Sección 5ª de la Audiencia Provincial de Murcia). Copio sólo un párrafo del cable, el mismo se acompaña completo al final, que dice:

“Rights-holders’ groups were heartened by a September
decision of a three-judge appellate panel of the Provincial
Court of Murcia. An investigating judge had dismissed a
criminal complaint filed by rights-holders in 2006 against a
website (“Elite Divx”) that made files available for
peer-to-peer (P2P) downloading. The lower court followed the
interpretation contained in the Circular, according to which
most unauthorized P2P activity should be pursued as a civil
wrong rather than as a crime. (Note: In large part because
of the Circular, media routinely report, and the Spanish
public at large generally believes without question, that P2P
activity is entirely legal. End note.) In sending the case
back to the lower court to be re-tried, the appellate court
found that unauthorized P2P activity is in fact covered by
the relevant sections of the Penal Code; that it comprises a
form of “public communication…in the form of making
(content) available”; that therefore (in direct contradiction
of the Circular) the “private copy exception” does not apply;
and that – even accepting the Circular’s controversial
interpretation that a commercial profit motive must be
present for criminal penalties to apply – the revenues earned
by the website from advertising demonstrate that it is “an
authentic business receiving important economic benefits
which increase based on the number of visits” and thus
covered by the Penal Code.”

La actuación de los USA para forzar en España y en Europa una legislación en materia de propiedad intelectual que favorezca sus intereses es algo que merece un artículo de fondo que llevo preparando unas semanas.

Les dejo con el texto completo del cable.


US embassy cable – 09MADRID1052

ZAPATERO PROMISES ACTION TO COMBAT INTERNET PIRACY
Identifier: 09MADRID1052
Origin: Embassy Madrid
Created: 2009-10-28 15:29:00
Classification:
Tags: ETRD KIPR EINV ECPS KCRM SP
VZCZCXRO3097
RR RUEHIK
DE RUEHMD #1052/01 3011529
ZNR UUUUU ZZH
R 281529Z OCT 09 ZDK MULT SVCS
FM AMEMBASSY MADRID
TO RUEHC/SECSTATE WASHDC 1384
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE
RUEHLA/AMCONSUL BARCELONA 4176
RHEHNSC/NSC WASHDC
RUCPDOC/DEPT OF COMMERCE WASHDC
UNCLAS SECTION 01 OF 05 MADRID 001052

SENSITIVE
SIPDIS

STATE FOR EUR/WE AND EEB/TPP/IPE: T.O’KEEFFE AND J.URBAN
STATE PASS USTR FOR D.WEINER AND J.GROVES
STATE PASS U.S. COPYRIGHT OFFICE FOR D.CARSON, M.PALLANTE
AND M.WOODS
COMMERCE FOR 4212/D.CALVERT
COMMERCE ALSO FOR USPTO

E.O. 12958: N/A
TAGS: ETRD, KIPR, EINV, ECPS, KCRM, SP
SUBJECT: ZAPATERO PROMISES ACTION TO COMBAT INTERNET PIRACY

REF: A. MADRID 982
B. MADRID 417
C. MADRID 410
D. MADRID 224

MADRID 00001052 001.3 OF 005

SENSITIVE BUT UNCLASSIFIED – PLEASE PROTECT ACCORDINGLY

SUMMARY

  1. (SBU) In an October 21 speech to the American Business
    Council, President Zapatero addressed internet piracy in
    public for the first time, acknowledging that deficiencies in
    IPR protection in Spain are a source of concern to the USG
    and the GOS. Zapatero pointed to the October 9 creation by
    the Council of Ministers (Cabinet) of an Inter-Ministerial
    Commission to study Internet piracy, which he said will
    submit recommendations to the government before the end of
    this year. The Commission appears to formalize and enhance
    ongoing working-level Inter-Ministerial discussions. Its
    formation, the December 31 deadline, and Zapatero’s
    high-profile statement are encouraging signs suggesting that
    progress may be forthcoming. Post believes Zapatero’s
    October 13 meeting with the President has contributed to both
    the formation of the Commission and Zapatero’s willingness to
    go on record emphasizing the need for a solution.

  2. (SBU) Meanwhile, developments continue on other fronts,
    and the decline in music, video, and movie sales this year
    provides more evidence of the seriousness of the problem.
    The government continues to urge the content providers and
    the Internet Service Providers’ (ISP) association (the
    “Coalition” and “Redtel,” respectively) to reach agreement on
    measures to deter piracy. The two sides continue to exchange
    proposals, but Coalition sources advise that any agreement
    reached will be of modest scope. The Coalition also
    announced it is developing a “macroweb” to make content
    legally available online, which it plans to deploy in 2010
    once the government begins to implement measures to protect
    online content. Separately, rights-holders’ groups have won
    some internet piracy court cases and lost others. On October
    19, the Coalition sent the Ministry of Industry, Tourism, and
    Trade (MITYC) a list of some 200 commercial-scale pirate
    websites, asking the Ministry to take dissuasive action and
    also to pass the list to the Prosecutor General’s office
    (Fiscalia) for criminal charges. End Summary.

THE NEW COMMISSION

  1. (U) During the weeks leading up to President Zapatero’s
    October 13 meeting with President Obama, U.S.
    copyright-dependent groups such as MPAA and the Recording
    Industry Association of America (RIAA) pressed actively to
    have President Obama raise internet piracy with Zapatero.
    Members of Congress sent a letter to USTR and the Commerce
    Department with the same message.

  2. (U) On October 9, Spain’s Council of Ministers (Cabinet)
    announced the establishment of an Inter-Ministerial
    Commission to address the problem of IPR violations on the
    internet. The Council tasked the Commission with analyzing
    the existing regulatory framework and identifying actions
    that will make the criminal and civil judicial processes more
    effective in protecting copyrights online and offering
    remedies to rights-holders. The Commission is to provide the
    Council with its preliminary conclusions and recommendations
    by December 31.

  3. (U) Senior officials (roughly Under Secretary and
    Assistant Secretary equivalents) of the following eight
    Ministries will comprise the Commission: MITYC, Culture,
    Interior, Justice, Education, Foreign Affairs and
    Cooperation, Economy and Finance, and the Presidency. The
    Commission held its first meeting October 23 to set its work
    agenda. The Commission will build on informal collaborative
    efforts undertaken over the past several months at the
    working level by MITYC, Culture, Industry, and Justice.

  4. (U) In an October 22 meeting with Charge, MITYC State
    Secre tary for Telecommunications and the Information Society
    Francisco Ros acknowledged the challenge of coordinating
    among eight Ministries but stressed the benefits of including
    all relevant actors in the discussion of possible solutions.

MADRID 00001052 002.3 OF 005

He framed the problem as one of reconciling IPR with privacy
and other fundamental rights, arguing that in Spain and other
countries, government attempts to regulate the Internet have
sparked protests by privacy advocates and counter-measures by
legislatures.

  1. (SBU) Rights-holders are convinced that the mere
    possibility of Zapatero’s having to address the issue in his
    meeting with the President spurred the government to action.
    Coalition President Aldo Olcese called the Council of
    Ministers’ announcement, which our government contacts had
    played up all week as imminent good news that would
    demonstrate the government’s seriousness, “a cynical maneuver
    to give Zapatero something to say” in case President Obama
    did raise the issue. Olcese also called the announcement of
    the Commission a delaying tactic, since it pushes any
    solution into the future. He predicts the Commission will
    recommend among other things that Spain seek a European-wide
    approach to Internet piracy during its EU Presidency, an
    approach that State Secretary Ros is known to support but
    which rights-holders fear could lead to further delay.

ZAPATERO RECOGNIZES THE PROBLEM

  1. (SBU) The reported discussion of internet piracy by a
    senior White House official with close advisors of Zapatero,
    and GOS pleasure with Zapatero’s visit to DC as a whole,
    appear to have resonated at senior levels of the GOS. In an
    October 21 speech to the American Business Council (ABC) on
    economic issues, Zapatero addressed the issue in public for
    the first time. He cited Spain’s impressive performance in
    attracting foreign investment but noted the need for
    improvement in several areas, including IPR, as part of a
    broader effort to enhance Spain’s attractiveness to foreign
    investors. Without specifically naming internet piracy, he
    noted that IPR protection was of concern to both the USG and
    the GOS. He pointed out that Spain boasts the world’s fourth
    largest cultural industry and that the “creative sector”
    accounts for 4% of GDP. Zapatero expressed support for the
    Coalition-Redtel negotiations and reiterated that the newly
    formed Inter-Ministerial Commission is to present its
    proposal by year’s end.

SALES DROP ILLUSTRATES SERIOUSNESS OF PROBLEM

  1. (U) Representatives of copyright groups have presented an
    array of evidence to dramatize the plight of their
    industries. Legitimate music sales in Spain fell by more
    than 30% in the first six months of 2009 compared with the
    same period in 2008. Video sales were down 33% and rentals
    down 44%. Movie attendance has declined significantly over
    the past two years. While the severe recession contributed
    to these losses, industry representatives point the finger at
    competition from illicit downloads and file-sharing.

PRIVATE SECTOR NEGOTIATIONS

  1. (U) Per reftels, beginning in May 2008, the government
    had urged the Coalition and Redtel to negotiate an agreement
    on deterring and combating digital piracy. The parties
    worked for almost a year in three different areas –
    dissuasive measures (including recommendations for
    legislative and regulatory reforms), public education and
    awareness, and new business models, i.e., making more content
    legally available online.

  2. (U) As reported ref B, Redtel broke off negotiations in
    April 2009. According to Redtel executive director Maria
    Teresa Arcos, Redtel and the Coalition have not conducted any
    formal negotiations since then. Sometimes Coalition and
    Redtel presidents Aldo Olcese and Miguel Canalejo meet
    together with senior officials of MITYC or the Culture
    Ministry; the two groups also sometimes communicate through
    third parties, especially government officials; and they have
    also passed draft proposals back and forth. The government
    is eager to have a private-sector agreement, however modest
    or narrow, on which to base its own initiatives. The
    Coalition is willing to keep trying for an agreement as a
    means of keeping the government engaged, but it says it has
    become disillusioned with the continued dilution of its
    proposals. It has given up, at least for now, any measures
    to sanction or even notify individual users who infringe

MADRID 00001052 003.3 OF 005

copyrights online, and its proposal that ISPs or the
government shut down or block pirate websites probably would
require controversial legislation. It does not expect the
“de minimis” agreement to advance its interests much.

  1. (U) Redtel’s primary emphasis in the negotiation has been
    on the business model issue, as its ISP members hoped to
    enter into lucrative business deals with such Coalition
    members as the Motion Picture Association of America (MPAA)
    and various recording companies to market their products
    legally online. The ISPs’ inability to achieve their
    objectives in this area was the ostensible reason for
    suspension of the negotiations. However, content providers’
    representatives note that the ISPs and their parent
    telecommunications companies (Telefonica, Orange, Vodaphone,
    and Ono) have a number of contentious issues pending with the
    government involving taxation, competition, and regulation,
    and may be using the Internet piracy negotiations as leverage
    with the government on other matters. In public, Redtel
    executives have said if the government wants to solve the
    piracy problem, it should take action, and the ISPs will
    comply with their obligations, but the government should not
    expect voluntary concessions from Redtel.

  2. (U) Meanwhile, the Coalition announced October 19 its own
    new business model: a “macro-website” offering access at
    reasonable prices to its members’ products, including the
    much-desired and much-pirated movies made available by major
    U.S. studios. The new site is reportedly based on the U.K.
    website findanyfilm.com and will also contain music and
    games. Coalition president Olcese noted that consolidating
    the content in one place will offer an attractive alternative
    to illegal downloads and file-sharing. He stated, however,
    that the “macroweb” will not be formally launched until the
    government has begun to implement measures to combat piracy
    and protect content, which the Coalition hopes will be in
    early 2010. Rights-holders argue that Spain’s current
    lawless online environment makes legal content offers futile.
    During a visit to Madrid, International Federation of the
    Phonographic Industry (IFPI) president John Kennedy
    characterized Spain’s situation as a “vicious circle” in that
    such legal websites can never compete against free downloads
    as long as piracy remains unpunished, and are therefore not a
    sound investment.

COURT CASES – WIN SOME, LOSE MORE: THE “CIRCULAR” CASTS ITS
SHADOW

  1. (U) The government claims it is doing everything it can
    under current authority to combat Internet piracy. At State
    Secretary Ros’ recent meeting with AmCham’s IP Committee (ref
    A), Salvador Soriano, Deputy Director General for Information
    Society Services in the Ministry of Industry, Tourism, and
    Trade (MITYC), cited statistics showing that in the past four
    years, law enforcement authorities have investigated 100
    websites over allegations of illicit activity; 43 criminal
    complaints have been filed by either private parties or
    government entities; 43 arrests have been made; and 34 cases
    are currently before investigating judges.

  2. (U) Comment: These figures cover activity since 2005.
    According to Jose Manuel Tourne of the Federation for the
    Protection of Intellectual Property in Audiovisual Works
    (FAP), authorities conducted 21 investigations for Internet
    piracy in 2006 and more than 20 in 2007. Many of those cases
    are still working their way through the judicial system and
    are still awaiting decisions by investigating judges or have
    been appealed to provincial courts. Many have been thrown
    out by judges following the reasoning of the Circular (see
    ref D) issued in May 2006 by the Prosecutor General’s office
    (Fiscalia). One case in April (ref C) in La Rioja resulted
    in an important precedent with the first-ever conviction of a
    web operator for running a pirate website that generated
    profit for advertising revenues. Sources in the National
    Police, Civil Guard, and Fiscalia have told post that in the
    past two years police and prosecutors have largely given up
    pursuing these cases because the Circular sets such a high
    bar. While the government continues to insist that the
    Circular is not binding on judges, its language has directly
    influenced judges and led to unfortunate outcomes in a number
    of such cases.

MADRID 00001052 004.3 OF 005

  1. (U) Comment continued: In the Circular – a series of
    guidelines for prosecutors to follow in investigating and
    prosecuting IPR cases – the Fiscalia argued against pursuing
    criminal charges against file-sharers on the grounds that it
    was impractical and undesirable to penalize “a broad
    cross-section of society that uses technological advances to
    access protected works.” Most rights-holders do not pursue
    criminal charges against individual Internet users except in
    the most egregious circumstances. They believe, however,
    that prison sentences and/or suspension of Internet access
    are not necessarily disproportionate in such extreme
    circumstances, and also that, if available, such sanctions
    would provide a strong deterrent against illicit downloads
    where none currently exists. End comment.

  2. (U) Rights-holders’ groups were heartened by a September
    decision of a three-judge appellate panel of the Provincial
    Court of Murcia. An investigating judge had dismissed a
    criminal complaint filed by rights-holders in 2006 against a
    website (“Elite Divx”) that made files available for
    peer-to-peer (P2P) downloading. The lower court followed the
    interpretation contained in the Circular, according to which
    most unauthorized P2P activity should be pursued as a civil
    wrong rather than as a crime. (Note: In large part because
    of the Circular, media routinely report, and the Spanish
    public at large generally believes without question, that P2P
    activity is entirely legal. End note.) In sending the case
    back to the lower court to be re-tried, the appellate court
    found that unauthorized P2P activity is in fact covered by
    the relevant sections of the Penal Code; that it comprises a
    form of “public communication…in the form of making
    (content) available”; that therefore (in direct contradiction
    of the Circular) the “private copy exception” does not apply;
    and that – even accepting the Circular’s controversial
    interpretation that a commercial profit motive must be
    present for criminal penalties to apply – the revenues earned
    by the website from advertising demonstrate that it is “an
    authentic business receiving important economic benefits
    which increase based on the number of visits” and thus
    covered by the Penal Code.

  3. (U) The Murcia court’s decision does not have binding
    precedential force, but rights-holders believe that because
    it was issued by an appellate court (albeit not a national
    one), and because, unlike many judicial decisions, it
    explains the judges’ reasoning so forcefully and clearly, it
    is likely to influence other pending and future internet
    piracy cases elsewhere in the court system. That said, many
    cases arising out of a series of police raids and website
    shutdowns in 2006-7 have already resulted in acquittals or
    have been summarily dismissed by investigating judges based
    at least in part on the Circular’s influence.

  4. (U) In a separate case, rights-holders’ groups were
    dismayed on October 15, when an investigating judge in Madrid
    rejected a complaint filed by the Music Producers of Spain
    (Promusicae) and music companies Universal, Warner, Sony, and
    EMI against an individual (identified in court by only his
    Internet Protocol number) who uploaded approximately 9,000
    music recordings without authorization using a P2P
    application, making them available to anyone who wanted them.
    The judge quoted from the Circular’s language stating that
    in order to constitute a crime, P2P activity must involve
    commercial profit. Accordingly, he found that the only
    exchange taking place was that of “sharing among different
    users the material at their disposal, which constitutes
    socially acceptable and very widespread behavior that in the
    end is in no way illicit enrichment; rather, said conduct
    would raise the possibility of obtaining copies for private
    use, which leads to the conclusion that in this case there is
    no infraction deserving of criminal sanction.” Promusicae is
    appealing the verdict.

THE COALITION’S CHALLENGE

  1. (U) At his October 19 press conference, Olcese also
    announced that the Coalition, in partnership with the
    self-described anti-piracy investigative entity CoPeerRight
    Agency, had developed a list of 200 commercial-scale pirate
    websites, of which 62 operate from Spain. Olcese said he was
    sending the list to MITYC in the hopes that the government
    will take action against the offending sites, which

MADRID 00001052 005.3 OF 005

CoPeerRight estimates generate average annual revenues of 1.5
million euros from advertising directly related to their
offers of infringing content. Olcese also asked MITYC to
pass the list to the Fiscalia for criminal prosecution.

  1. (SBU) Comment: MITYC currently has no authority to take
    any action against the sites except perhaps impose weak
    administrative sanctions. There is no reason the Coalition
    could not file a criminal complaint with the police, provide
    them with the list and accompanying documentation, and ask
    them to investigate. However, the Coalition believes Spanish
    law enforcement authorities are much more likely to
    investigate vigorously and prosecute if the material is given
    to them by a government entity such as MITYC.

  2. (SBU) Comment continued: The Coalition’s other reason for
    sending the list to MITYC is to implicate that Ministry in
    the piracy problem and hold it accountable for finding a
    solution. The Coalition is trying to keep the public
    spotlight and pressure on the government – and especially
    MITYC – while the Inter-Ministerial Commission explores
    possible initiatives. The rights-holders’ objective is the
    creation of a new government administrative body – a pale
    imitation of the High Authority contemplated by recent
    legislation in France – that would have the power to shut
    down or block pirate websites. Rights-holders’ groups
    believe that State Secretary Ros opposes the creation of such
    a body because he does not want his office, which oversees
    Internet matters, to become responsible for the problem.
    Content providers, who continue to believe in the face of
    Ros’ recent “urban legend” remark (see ref A) that Spain has
    one of the highest rates of Internet piracy in the world, are
    determined to make him face up to the problem. End Comment.
    CHACON

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