Droit des auteurs

First of all, let me express how honored we are, that you choose our firm to offer you legal guidance  on your issue. With regard the presented facts, let me introduce you what further steps should be taken.

Both U.S. and European courts have jurisdiction over your case, so you will have to decide according to which legal system you want to sue.

In both cases, we have to examine the liability of FastShare and the liability of Mr. X. separately.

FastShare is an internet hosting service specifically designed to host static content, typically large files that are not web pages. They can be optimised for serving many users. One-click hosting or cyberlocker generally describes web services that allow internet users to easily upload one or more files from their hard drives (or from a remote location) onto the cyberlocker's server free of charge. Most services simply return a URL, which might be shared with other people, who can then fetch the file later on. The sites make money through advertising and charging for premium services. Under the free service you may upload a file up to 200MB, and 10 free downloads are allowed, before the file is deleted from the servers. In the premium service no limitations are used. FastShare sells goods to premium users for “coins” received by users after each download of the uploaded files. One coin is given for each separate downloads. The FastShare sells this way an “iiiPaaad tablet” for 100.000 coins.

Mr. X. is a private user, who accessed your copyrighted motion picture before it was officially released. He decided to upload an “.avi” format of the motion picture to FastShare. After he uploaded the file to FastShare and received the URL of the uploaded content he published the link on his personal website (www.takethis.org). Within a week, more than 100.000 people downloaded the video via FastShare. From the “coins” he received, Mr. X bought an “iiiPaaad”.

Let’s start with the Common Law Solutions:

According to the U.S. legislation, system operators can be found secondary liable for the infringement of their users. “ The Copyright Act does not expressly render anyone liable for infringement committed by another. (…) However, common law doctrines permit a court to impose secondary liability where just and appropriate.”^[1]

Two types of liability exists. One is the contributory liability, for which the system operator has to have an objective knowledge of infringing activity and has to induces, causes, or materially contributes to direct infringing activity of another. The other is the vicarious liability for which the the system operator has to have the right and ability to control direct infringer’s acts and has to receive a direct (or possibly indirect) financial benefit from the infringement.

With regard to the former, let’s analyse FastShare’s activity.

First, I would like to discuss contributory liability. FastShare probably know about the infringement, because they had to notice that large amount of download. Also they sent the “iiiPaaad” to Mr. X. in return the coins he gained from the downloads. The problem is, that this knowledge can’t be considered as objective. Based on the Columbia Pictures Industries, Inc., et al. v. Gary Fung, et al. decision, I would say, that the system provider’s knowledge was “Red Flag” knowledge which means: the provider was subjectively aware of facts that would have made the specific infringement ‘objectively’ obvious to a reasonable person.^[2] Even thought FastShare knew about the infringement, “ Mere knowledge of infringing potential or actual infringing uses does not subject a product distributor or service provider to liability. (545 U.S. at 937)^[3]

The inducement of the copyright infringement means that the defendants undertake purposeful acts aimed at assisting and encouraging others to infringe (directly) copyright. Though, the coin system and the “iiiPaaad” for 100.000 coins can encourage indirectly to infringe copyright, because the value of the reward incite people to upload popular files, it is not a direct encouragement for copyright infringement. The material contribution to copyright infringement means that the defendant has actual knowledge that specific infringing material is available via their system, and can take simple measures to prevent further damage to copyrighted works, yet continue to provide access to infringing works. With this condition, the problem is, as I mentioned it above, the lack of the actual knowledge, I am not sure if we have enough evidence to prove it. Otherwise he complies with the condition. I would propose you to try to sue FastShare for contributory liability, because the issue with “actual knowledge” is just a question of interpretation.

Also contributory liability can be argued on the basis of Sony v. Universal decision and the Grokster III. decision. In the Sony decision the Court says that “as their products were indisputably capable of substantial non-infringing uses, they maintained, they could not be secondarily liable based on their knowledge that their products could be used to infringe copyrights”^[4] We can apply this statement for the activity of FastShare, because it’s primary purpose is to facilitate lawful file-sharing amongst users.

Secondly let’s see vicarious liability. FastShare doesn’t have the right and ability to control direct infringer’s acts as they can’t filter every single file uploaded to their server, they just provide a platform for these files. Though they would have had the possibility to delete the movie after noticing it. But this type of liability can’t be determined either, because FastShare doesn’t receive a direct (or possibly indirect) financial benefit from the infringement. The site makes money through advertising and charging for premium services. Though Mr. X was a premium member, FastShare didn’t receive more money because of this infringement, but on the contrary, they had to “pay” him the “iiiPaaad”.

I have to mention DMCA’s safe harbor provisions (17 U.S.C. §512(a), (c), and (d)) too. If the conditions are met, they can release system providers from liability.

Summarizing the above, according to the U.S. regulations it’s likely that FastShare can be made secondary liable for the infringement.

Now, let’s examine the liability of Mr. X. First of all, I have to warn you, that the establishment of individual liability of private users is really difficult, and damages can reach such a huge amount that a natural person could not pay.

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