Last week a 22 year-old was sentenced to 6 months jail for running a file-sharing site carrying links to copyright works. On the surface it appeared that court ruled that due to placing advertising on the site, the admin had profited from infringement and therefore committed a crime, but all is not as it seems.

A week ago we reported that a Spanish Court made its decision in the case of file-sharing site Infopsp.com. According to the complainants – Spanish Association of Publishers and Distributors Entertainment Software (ADESE) and the Spanish Videographic Union (UVE) – the site, which had around 17,300 members, operated illegally.

InfoPSP didn’t host any illicit content itself but instead offered links to video games, movies and music hosted on 3rd party sites. In Spain, merely linking to copyright works is not illegal. InfoPSP carried advertising and it was widely reported in the Spanish media that this was the reason the admin, Adrián Gómez Llorente, aka Kuve, was found guilty and sentenced to fines and 6 months in jail. However, in the murky world of copyright infringement, it’s no surprise to discover that all is not as it seems.

In September 2008 we reported on the case of Sharemula, a site which offered eDonkey links to movies, music, software and games. Just like InfoPSP, Sharemula found itself the subject of legal action but eventually the admins were found not guilty, since they had not carried out copyright infringement for profit. Here’s the strange part though – Sharemula DID carry advertising, just like InfoPSP.

Seeking clarification, TorrentFreak contacted the offices of David Bravo, a Spanish lawyer who specializes in intellectual property rights. According to Spanish law, the reason why the Sharemula admins were acquitted was because in order to have committed a crime, direct profit must’ve been made from the actual dissemination of the copyright works. Since the site carried only links, any dissemination was carried out by the site’s users and not the site itself. In short, no crime was committed on Sharemula and bizarrely, no crime was committed on InfoPSP either.

So it begs the question; how on earth did the admin of InfoPSP get found guilty of criminal copyright infringement and sentenced to 6 months jail and fines of 4,900 euros?

The answer lies, unsurprisingly, with the complainants in the case – the Spanish Association of Publishers and Distributors Entertainment Software (ADESE) and the Spanish Videographic Union (UVE). Of course, file-sharing site admins being protected under Spanish law is the last thing these groups need. What they actually need is someone’s severed head displayed prominently on a pike in order to deter others, and a widely-reported 6 month jail sentence is ideal for reaching this aim.

To get the truth, lawyer David Bravo conducted an interview with KUVE, the convicted InfoPSP admin, which shines an awful lot of light on this issue – and pretty shocking it is too. First off David asked Kuve if he’d ever carried any copyright material on the InfoPSP server;

“Absolutely not. The web server contained only the files needed for the operation of the forum,” explained Kuve. “Under no circumstances did we ever host any copyrighted works.”

David then asked Kuve if it was true that InfoPSP simply displayed links which were supplied by users of the site. “Indeed, the website was a forum where users could share a link to a file,” Kuve replied. “These links were torrents, hosting servers or file upload sites like Megaupload, Gigasize, Rapidshare etc.”

Kuve then went on to explain that he and his lawyer understood that all ongoing trials against similar sites (such as Sharemula) were resolved in the favor of the sites in the criminal courts. However, the threat of being chased by the complainants for damages through the civil courts was very real and the costs associated with this would have been too much for Kuve to cope with.

So a deal was done. Kuve would admit to being a criminal and accept the court’s decision with the assurance that he wouldn’t be chased through the civil courts by the plaintiffs. Kuve and his lawyer decided that it would make sense, financially at least.

“I am a student and therefore do not have the financial resources needed to hire a defense expert that could ensure results in the trial. Besides, continuing with the trial meant that the civil courts could convict me and I would be forced to pay financial compensation which I couldn’t cope with,” said Kuve.

“I would have loved to defend my interests to the end and it is for this that I wish all the people in my situation who can afford to stay and fight for something that affects us all, the best of luck.”

“The real news here is that a person has been found guilty of something that was not an offense under 100% of the judges who had resolved earlier identical cases,” says a concerned David Bravo.

Javier de la Cueva, a lawyer working with David, told TorrentFreak something that will be of interest to lawyers representing admins like Kuve in the future. Javier and David maintain a repository relating to Spanish court decisions on hyperlinking and release these documents under a CC-By License.

Thanks to this repository, any lawyer in Spain can use the documents to defend similar cases. The documents have already enabled lawyer Franciso José Andújar to successfully defend TVMix.