Sharp setback to anti-piracy measures

After heated debate and much negotiation on Tuesday, the so-called "Sinde Law" failed to attain sufficient support to conclude its tortuous passage through Congress, while the arguments used by its supporters have emerged somewhat dilapidated.

To encapsule this measure in an additional provision within the Sustainable Economy Law at first sight seemed to be a camouflage operation. And it is hard to understand the reason for so much sudden haste and pushing when debate about the problem has been going on for so long.

It may well be that repeated reproaches from the US authorities about the lax treatment of internet piracy in Spanish law, and the diplomatic moves revealed in Wikileaks, actually pressed the government to act after dragging its feet for so long on a thorough overhaul of the Intellectual Property Law in the context of today's digital society. The government's intention was clear. Prosecution is to be aimed not at the net user who downloads the protected content or enjoys it online, as is the case in France, but at the website that facilitates it.

Unquestionably intellectual property deserves better protection, within the internet and beyond. However, the industry wants to prevent internet from being an instrument of violation of these rights, and wants this to be done exclusively by laws- something which, if capacity for conviction is lacking, can never achieve the desired objective. Websites can be closed, but the alternative circuits are many, and difficult to short-circuit by a law alone. The industry cannot expect to put locks on the web and at the same time maintain its present way of doing business, in disregard of the technological changes that have taken place.

The bill as it stands has two conflictive points. One is the unknown composition of the proposed Intellectual Property Commission, attached to the Culture Ministry, which must examine the complaints filed by copyright holders and, if it sees fit, initiate procedures in the National High Court. The second is the role planned for the High Court itself, whose judges must decide in the space of four days whether the closure of a website is appropriate. The judge is not to enter into the substance of the question, but only to consider whether the measure affects fundamental rights.

That is, judicial analysis of the case is postponed to the later decision of other courts in appeal proceedings, when the website complained of has already been closed. Any such later decision on the part of the ordinary courts, contrary to the closure ordered by the High Court, would involve a tardy and uncertain rectification.

There can be no defense for a "free" internet that offers room for criminal conduct. Cyber-space cannot be outside the law, and those who violate it cannot enjoy any special immunity. But at the same time there has to be a clear definition of the categories of crime that are liable to prosecution; a graduation of sanctions in accordance with the gravity of the infraction; and a due process of law, when what is at stake is the definitive closure of a website.