December 17, 2010 | By Gwen Hinze

Not-So-Gentle Persuasion: US Bullies Spain into Proposed Website Blocking Law

It’s no secret that the US government has used its annual Special 301 Report to intimidate other countries into adopting more stringent copyright and patent laws by singling out particular countries for their "bad" intellectual property policies, and naming them on a tiered set of "watch lists". Listing results in heightened political pressure and in some cases, the potential for trade sanctions, which encourages foreign trading partners to change their laws to mirror those in the US. But now some of the cables provided by WikiLeaks to Spanish newspaper El Pais confirm that the US government has pushed other countries to adopt measures that go beyond US law, unleashing the fury of Spanish Internet users.

A set of cables reported on by El Pais make clear that the US government played a key role in Spain’s controversial website blocking law – the 2009 Sustainable Economy Bill, which the Spanish government is now trying to sneak it through a Committee in a pre-holiday session on 21st December. (Spanish readers, please see Action you can take below).

El Pais reports that in February 2008 the US government threatened to put Spain on the annual Special 301 Watch List issued by the Office of the US Trade Representative unless the new Spanish government announced new measures to address Internet piracy, including a law that requires ISPs to terminate the Internet access of subscribers accused three times of file sharing - like the French “HADOPI” Three Strikes law.

In a February 2008 cable, the US Embassy in Madrid stated that:

“We propose to tell the new government that Spain will appear on the Watch List if it does not do three things by October 2008. First, issue a [Government of Spain] announcement stating that internet piracy is illegal, and that the copyright levy system does not compensate creators for copyrighted material acquired through peer-to-peer file sharing. Second, amend the 2006 “circular” that is widely interpreted in Spain as saying that peer-to-peer file sharing is legal. Third, announce that the GoS will adopt measures along the lines of the French and/or UK proposals aimed at curbing Internet piracy by the summer of 2009.”

Let’s be clear what this means; a US official apparently pressured the government of Spain to adopt novel and untested legislative measures that have never been proposed in the US Congress, and as the other cables published by El Pais show, did so at the request of US IP rightsholders.

The “French proposal” mentioned in the cable is the controversial 2009 HADOPI law, which provides for the French authority, the Haute Autorite pour la Diffusion des Oeuvres et la Protection des droits sur Internet, to send notices to ISPs recommending that they suspend the Internet accounts of users at identified IP addresses for up to a year, on the third allegation of copyright infringement.

The “UK Proposal” appears to be a reference to UK IP rightsholders’ demands that ISPs disconnect their subscribers after three allegations of copyright infringement in consultations that were convened by the UK government’s Department of Business, Enterprise and Regulatory Reform in 2007-2008, following a recommendation in the landmark Gowers report on UK IP law reform. Those consultations and a subsequent agreement were the precursor to the Digital Economy Act enacted in early 2010. The UK ultimately decided not to adopt Three Strikes. (To date, only the governments of France and South Korea have passed these novel laws, but a draft law is pending in New Zealand). The Digital Economy Act requires ISPs to forward notices of alleged infringement to their subscribers, but does not currently require ISPs to disconnect their subscribers upon a third allegation of copyright infringement – although it leaves open the possibility that the UK government could require such “technical measures” in the future.

The cables show that the US Embassy in Madrid had devised a detailed “roadmap” in 2007 with short, medium and long-term strategies to increase pressure upon Spain to take action to strengthen IP laws by the March 2008 elections. This would “require continued constant high-level attention from Embassy and occasional help from Washington agencies over the coming 3 to 4 years”, including meetings with visiting US government officials from the USPTO and State Department.

The Spanish government apparently did not act fast enough on US demands. The US made good on their threat to add Spain to the Watch List in the US Trade Representative’s Special 301 Report in 2008 and 2009. In November 2009, the Spanish government proposed a new anti-piracy law, the Sustainable Economy Bill, which raises serious concerns for Spanish citizens’ rights of due process, privacy and freedom of expression. The good news is that the proposed legislation does not require ISPs to adopt Three Strikes Internet disconnection of individuals. However, the bad news is that it follows the recent trend towards imposing obligations on Internet intermediaries to block content. Similar laws have been proposed in the U.S. (COICA) and the UK (through the reserved powers in the Digital Economy Act).

The proposed Sustainable Economy law would allow a new government Commission to direct ISPs to block service or remove content on websites after receiving complaints on certain grounds. These include national defense, public order, public safety, public health, protection of minors, and “safeguarding IP rights”. It would also require ISPs to respond to requests from authorized entities for the identification and disclosure of persons responsible for IP infringements – an issue that IP rightsholders had pursued and lost in the 2008 European Court of Justice’s ruling in Promusica v. Telefonica.

A US Embassy cable from December 2009 describes the massive Internet community protests that soon followed the introduction of the legislation. It notes that the Government of Spain had “disavowed any intention to implement a graduated response regime such as contemplated in recently enacted legislation in France. Their specific intent is rather to impede access to infringing content.” The cable reports back to Washington officials on the respective reactions of senior representatives of the recording industry and motion picture industry, the local affiliates of the International Federation of Phonographic Industries and the Motion Picture Association of Europe. Many content providers, including the President of the Federation for Intellectual Property in Audiovisual works (FAP) , reportedly thought that the legislation was the most that could currently be achieved and would pave the way for more stringent laws in the future, but the Spanish music industry representative was not satisfied, claiming that “this limitation [i.e., the legislation’s failure to oblige ISPs to adopt a Three Strikes Internet disconnection regime] will leave users free to continue in unauthorized P2P downloading”.

After the Spanish Parliament failed to adopt the legislation in 2009, Spain was again put on the Watch List in the USTR’s Special 301 Report in April 2010. The reasons given reiterate each of the points of contention described in the cables:

“Spain will remain on the Watch List in 2010. The United States remains concerned about particularly significant Internet piracy in Spain, and strongly urges prompt and effective action to address the issue. The Spanish government has not amended portions of a 2006 Prosecutor General Circular that appears to decriminalize illegal peer-to-peer file sharing of infringing materials, contributing to a public misperception in Spain that such activity is lawful. Spain’s existing legal and regulatory framework has not led to cooperation between Internet service providers (ISPs) and rights holders to reduce online piracy. On the contrary, rights holders in Spain report an inability to obtain information necessary to prosecute online IPR infringers, further reducing their ability to seek appropriate remedies. Spain’s legal system also generally does not result in criminal penalties for intellectual property infringement. The United States is encouraged by some recent positive developments in Spain, including the establishment of an Inter-Ministerial Commission with a mandate to propose changes in Spanish law and policy that will strengthen efforts to reduce Internet piracy. In January 2010, the Commission proposed legislation that would allow a committee based in the Ministry of Culture to request that an ISP block access to infringing materials hosted online. The United States urges Spain to continue taking positive steps to address Internet piracy, and will closely monitor progress in the next year.”

This is how the entertainment industry works with the US government to bully governments to create harmonized laws that continuously ratchet up copyright protection, one country at a time.

The Sustainable Economy Bill will be debated in the Committee of Economy and Finance of Spain’s Congress next Tuesday, 21st December, just before the holiday recess. It could then be adopted by the Senate by the end of February 2011.

The past is behind us, but the future is in your hands. If you are a Spanish citizen, call your Congressional representative and demand that this legislation be debated in open Parliament with the full attention that it deserves, not adopted by sleight of hand because of background political pressure. Our Spanish friends ask that you focus on representatives of the independent parties (some of whom have called for the Bill to be debated in a plenary session) - the Catalonian party (CIU), the Vasc Party (PNV), and the Canarian Island Pary (CC). More information is available at Asociacion de Internautas' campaign page; Red-SoS and here, and follow @La_EX_ on Twitter.

UPDATE December 21st, 2010: Victory! The Committee of Economy and Finance in Spain's Congress has just stripped the website shut-down provision from the Sustainable Economy Bill. More details at El Pais and follow on Twitter at #sindegate, #leysinde. Thank you to all who took action!

It’s worth remembering that it was the cables provided by Wikileaks to El Pais that brought to light the US’s role in pressing for the anti-downloading law which would have set up an extra-judicial process to shut down websites.


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