Monday, May 07, 2007

Another Spanish bar loses on copyleft licences

(via Erick Iriarte) Javier de la Cueva has posted a report on yet another defeat for copyleft against the Sociedad General de Autores y Editores (SGAE) in Spain, this time in Alicante.

The ruling from 21 March 2007 decides on an appeal to a previous decision with regards to a bowling bar called Bowling Vistahermosa in Alicante. The reason why we have been witnessing so many cases with regards to copyleft music in Spain is because Article 150 of the Spanish Copyright Law provides a defence against legal action from collecting societies (namely SGAE). If a collecting agency requests payment for licensing of music in a bar, it is a legitimate defence to "allege, subject to due substantiation, the lack of representative qualification of the plaintiff or of authorization by the owner of the exclusive rights, or failure to pay the corresponding remuneration." In other words, defendants may claim that they do not play music of artists represented by SGAE.

In this case, as in previous ones, the bar argued that they did not play SGAE-managed music, but that they played copyleft music. The case dates from 2002-2004, so it's important to note that this is not a Creative Commons case. The problem was one of evidence, as the court found that there was not enough evidence that locale did play only copyleft music. SGAE presented only two witnesses, one a local representative, and one a detective, and both argued that they had attended the bowling bar, and that id played regular commercial music, including "dance music and reggaeton". The defence, on the other hand, did not present any admissible evidence as to the fact that it played copyleft music, therefore the defeat.

These cases should not be seen as a defeat to copyleft licences, they respond to a very idiosyncratic twist of copyright procedural rules in Spain. The lesson to be learnt, if any, is that pursuing these type of actions against the SGAE seems counter-productive.

However, I believe that Bowling Vistahermosa deserved to lose from the fact that it plays reggaeton. Ugh.

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