About the Criminality of the Conduct of Uploading a Copyrighted Work with Commercial Intent and the Not Criminal Character of its Downloading Despite its Illegality

Abstract

This paper seeks to clarify the legal treatment of the conduct of uploading and downloading, distinguishing those that are allowed, those that are a civilly wrong and those that are criminal. In order to do so we will distinguish between torts against the Intellectual Property Law and crimes against intellectual property, with emphasis on the analysis of the elements of the crime: “animus lucrandi” and “causing a loss”, as they have been interpreted in doctrine, by the courts and in this proposed solution. Finally we propose to establish a means of control for the owners of P2P servers and administrative sanctions for the violation of these means. To achieve that we suggest a system to filter the protected contents based on the hash of the file.

Note: Downloadable document is in Spanish.

Keywords: Internet, P2P, intellectual property, tort, crimes against intellectual property, animus lucrandi, causing a loss, means of control, hash