Last week we reported on the case brought by Spain's collecting agency SGAE against a bowling bar in Alicante, which lost on its claim that it only played "copyleft" music.
Almost immediately, another case has come out, this one in favour of the claimant bar. As I reported last week, the reason for all of these cases in Spain is that Article 150 of the Spanish Copyright Law provides a defence against legal action from collecting societies if the defendant can prove that he/she does not play music of artists represented by SGAE. The new case has been won by the defendant in a sentence in Salamanca, and in a very interesting ruling that provides a detailed description of copyleft and Creative Commons.
The case deals with jazz club Birdland, which was sued by SGAE claiming payment for failing to pay royalties for making music available to the public in the locale. As with other cases, the club owner claimed as his defence that they played only alternative and free music. It came down then to the element of proof, but before that, the judge-magistrate Luis Sanz Acosta, delivered a rather accurate description of copyleft and Creative Commons:
"...in recent years we have seen the rise of so-called "música libre" in our country, very much an Internet phenomenon as a medium for music distribution. From a distribution model very much circumscribed to the sale and rent of works, controlled by content industry, there is now an almost unlimited model, thanks to the global diffusion provided by the Internet, in which creators themselves, without industry intermediaries, can make digital copies of their work available to the public. This phenomenon has originated the coexistence of different content distribution models with regards to the new possibilities offered by the Internet:This is close enough to what the movement is all about, although it still confuses some of the terminology, but it is clear that the judge understood the concepts involved, and that he was willing to look at the evidence in a fair manner. When it came to that, SGAE presented a detective and one of their local representatives. They produced a recording that was found to have been made in another establishment altogether, a fact that did not go down well with the judge. On the other hand, Birdland's owners were able to produce several witnesses that attested to the fact that the jazz club played alternative and unusual "música libre", which was available from download from two computers installed in the bar. Similarly, the judge heard from the technicians who installed the computer equipment. It was clear that SGAE produced poor evidence, while Birdland substantiated their case quite well. The relevant part of the ruling reads:
a) The traditional model, based on copyright protection, which seeks to restrict access and use of online content, by using negotiating formulae of restrictive nature and technological control measures, expressed in the so-called "Digital Rights Management".
b) A model that provides free online access to content, on occasions allowing personal use (implicit licensing models), and in other situations, the free redistribution of the work, its transformation and even its public economic exploitation, with the only proviso of citing the source. These are models of public domain and general licences (General Public License), such as, for example, the Creative Commons licences, which include a copyleft clause.
With this copyleft clause, the owner allows, by means of a general public licence, the transformation or modification of his work, compelling the author of the modified work to make it available to the public with the same conditions, that is, allowing free access and further transformation. With the Creative Commons licences, the rights-holder reserves the right of economic exploitation and can forbid modifications. It is vital then to distinguish Creative Commons licences that have, and have not, the copyleft clause. In some instances there will be Creative Commons licences that include the copyleft clause (translation mine, traduttore = traditore)."
"Certainly, from the presented evidence it is not possible to claim that each and every one of the musical works communicated to the public in the demanded establishment have been granted freely by their authors through a Creative Commons licence, but to demand such proof, in those exhaustive terms, would be to demand evidence as diabolical as to ask SGAE to prove that each and every one of the songs communicated in the locale belongs to their represented artists. [...] Hence, the evidence has the consequence that it breaks the presumption that the music communicated to the public in the establishment had to be, at least partially, musical works managed by SGAE. With that presumption in tatters, it is the plaintiff who has the burden to prove that the music played in the locale is managed by them. Well, as things stand, it is evident that SGAE's evidence has been lacking and irrelevant."A pretty impressive result for copyleft-playing locales in Spain. Besides, any sentence that uses the word 'diabolical' deserves my unashamed and utter respect.
(Thanks to all who emailed about this, including Erick Iriarte, Ignasi Labastida and Miguel Peguera. Also thanks to Javier de la Cueva for his excellent report)