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Cable reference id: #09MADRID1052
“All of them, those in power, and those who want the power, would pamper us, if we agreed to overlook their crookedness by wilfully restricting our activities.” — “Refus Global“, Paul-Émile Borduas

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Hide header 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 [Foreign Trade], KIPR [Intellectual Property Rights], EINV [Foreign Investments], ECPS [Communications and Postal Systems], KCRM [Criminal Activity], SP [Spain; Balearic Islands; Canary Islands; Mallorca] 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 ¶3. (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. ¶4. (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. ¶5. (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. ¶6. (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. ¶7. (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 ¶8. (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 ¶9. (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 ¶10. (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. ¶11. (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. ¶12. (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. ¶13. (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 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 ¶14. (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. ¶15. (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 ¶16. (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. ¶17. (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 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. ¶18. (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. ¶19. (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 ¶20. (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. ¶21. (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. ¶22. (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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