Why Spain’s get-tough approach to downloading is patently absurd

On Friday, the Spanish government approved a series of changes to the penal code that will now make their way through Congress. Among them were measures for tougher sentences, of up to six years in some cases, for the owners of web sites offering access to copyrighted material.

I have to confess that I am tired of writing about this subject: it is utterly depressing to see how, despite all the evidence, the Spanish government, like so many before it, is now pressing ahead with measures to try to combat so-called illegal downloading. The only thing that this latest round of measures will prove is that the people making the laws about how the web should be run in Spain have absolutely no idea about how it really works. Needless to say, I have always maintained that anybody who makes money from the intellectual property of others should pay them. But this isn’t about saving downloading sites.

Pursuing these sites via ever-tougher penalties, criminalizing in the process many other activities on the web as a result, is not the solution; in fact it hides the real problem. This is a complex issue, and the Spanish government’s proposals clearly have not been thought through properly. Below I will outline 10 reasons why this change to the law is absurd:

1. It is heavy handed. The socio-economic damage caused, except in some very limited cases, should be punished with fines, at most. In short these kinds of punishment are ridiculous. Harsh measures are not the solution.
2. The experience of other countries shows that tougher punishments do not reduce downloading.
3. These measures will not solve the problem: they will simply move it somewhere else. Downloading sites are already relocating, and will continue to do so.
4. Use of downloading sites in Spain will stay the same or even increase, as has happened in all other countries that have introduced blocking of such sites.
5. Illegal downloading is a result of supply and demand. Making it a criminal offense will not make the problem go away; in fact it will have the opposite effect. In the few countries where downloading has diminished, this has happened not because of fear of punishment, but because of alternatives provided by the free market. Technology has made it easier than ever to distribute and access content, meaning that an industry based on scarcity and monopoly cannot survive, however many people we send to prison.
6. This new approach shows that Spain has no criteria of its own, and is acting on the instructions of the United States.
7. The new law will create exceptional measures to pursue those who are supposedlybreaking a law designed to protect a specific industry. Why should the penal code be used to molly coddle one industry over another?
8. If this were not such a serious matter, the idea that somebody can “enrich themselves” because “through the links they offer they are preventing the original from being bought” would seem more like a bad joke than the basis for a new law.
9. Downloading sites are a red herring, the bête noir of an entertainment industry and governments terrified of the spread of the web. What’s more, there are an infinite number of ways to exchange copyrighted work, each of them increasingly simple and effective.
10. The music, print, and movie industries have systematically lied about the supposed damage caused by downloading.

There are at least another 10 points that could be made here, for sure. Suffice to say that the Spanish government’s proposed changes to the law are absurd, they do not address the real problem, they do not defend those who should be defended, and are simply trying to prop up an unsustainable system, ignoring in the process the abundant evidence to the contrary.

Instead, this reflects the Spanish government’s utter inability to come up with any alternatives to the pressure being applied by the US entertainment industry. By succumbing in this way, the Spanish government is merely opening the door to further threats down the road. What is required is not toughening punishment for breaking intellectual copyright law, but adapting the way we think about it to the new reality of the digital age. Until we do so, all we are doing with these kinds of measures, is prolonging the problem.