Droit des auteurs

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It is obvious that M. X. committed a copyright infringement by using FastShare, getting an URL of the uploaded pre-released movie and uploading this link to his website www.takethis.org. He made it available to the public, and more than 100.000 people downloaded the video, so it is a clear infringement. (According to Nimmer making available to the public is already a distribution)[5] We can assume, that he did it for the financial benefit (“iiiPaaad”), because he subscribed for premium services on the site. His liability can be stated on the basis of Daniel Dove decision. But it can be really difficult to prove it, because the IP address doesn’t prove undoubtedly who committed the infringement. See, the decision Elf-Man LLC v. Eric Cariveau et al.: „simply identifying the account holder associated with an IP address tells us very little about who actually downloaded ’Elf-Man’ using that IP address. While it is possible that the subscriber is the one who participated in the BitTorrent swarm, it is also possible that a family member, guest, or freeloader engaged in the infringing conduct.”

Now let’s move to the European Legislation:

In the EU, directives are harmonising member states’ legislation.

The E-Commerce Directive ( 2000/31/EC ) offers a “Safe Harbor” for the system providers for transmitting, caching or storing any copyrighted information, if they fulfill the requirements of the directive and the domestic statutes of the member states.

FastShare’s file hosting service counts as “Hosting” according to Article 14 of the Directive.

Hosting:

1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:

- the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or

- (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

In my opinion, though proving FastShare’s actual knowledge of the infringing activity can be a bit challenging, you can sue the system provider because they can’t defend themselves with this Safe Harbor limitation as they didn't disable access to the copyrighted work.

Also you can apply for for an injunction against FastShare to stop the infringing activity on the basis of The InfoSoc Directive ( 2001/29/EC ) and Enforcement Directive ( 2004/48/EC ) . Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right. ( 2001/29/EC Art.8.(3))

Regarding Mr. X, EU copyright law protects the exclusive right of „making available to the public” of the rightholders. Mr. X. obviously violated it. Even though the legal basement is given, proceedings against private users are relatively rare in Europe. That’s because of the data protection regulation of the European Union. First of all you have to know that the main evidence against Mr. X. would be the IP. adresse from which unlawful content on the network is sent. But according to the Scarlet Extended v. Sabam decision, IP addresses are protected personal datas because they allow those users to be precisely identified. That’s why during lawsuits, lots of internet service providers are refusing to disclose personal data relating to the use of the internet, and they are wining the lawsuits filed against them because of this. Also a Directive protects the confidentiality of public communications networks. Under Article 5(1) of Directive 2002/58 Member States (MS) must ensure the confidentiality of public communications networks and publicly available electronic communications services, and of the related traffic data.

Under Article 15(1) MS may restrict the scope of this obligation where such a restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security, defense, public security, and the prevention, investigation, detection and prosecution of criminal offences.

Unfortunately, none of these conditions can be applied for a copyright protection case.

It doesn’t mean that EU’s regulations make it impossible to collect evidence against Mr. X., but you have to expect a procedure of balancing between the different fundamental rights as well as complying with the general principle of proportionality.

Summarising the above on legal basis in both legal system you can file a lawsuit against both FastShare and Mr. X. It’s more likely that the U.S. courts will find liable Mr. X for his infringement while in the EU, it’s not even sure that we can proceed our proof procedure because of the above mentioned. But again, you have to keep in mind, he is a private person and damages can reach such a huge amount that a natural person could not pay. Regarding FastShare’s liability I think we have more chance for the success if we sue according to EU regulations.

Bohács Gerda

BIBLIOGRAPHY

- Péter Mezei- Dóra Hajdú- Introduction to Digital Copyright Law

- Péter Mezei- II.4.P2P filesharing.pdf ( slides from the course)

- 17 U.S.C. §512(a), (c), and (d)

- http://www.copyhype.com/2012/10/nimmer-changes-his-tune-making-available-is-distribution/

- E-Commerce Directive ( 2000/31/EC )

- InfoSoc Directive ( 2001/29/EC )

- Directive 2002/58/EC

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