Free use of copyrighted works

                     

 

 

FREE USE OF COPYRIGHTED WORKS – A COMPARISON OF THE EUROPEAN AND THE AMERICAN COPYRIGHT LAW 

 

21.4 .2010.

Peter Mezei

 

Please write your name and student number (or date of birth) on each answer sheet. To make things sure write also the teacher’s and course’s name on each sheet.

 

You are allowed to use book material and lecture notes in this exam!

 

Leave the answer sheets to the supervisor’s desk according to the teacher’s and course’s name.

Please, answer in English.

GOOD LUCK!

 Task:

 

• Read the following technical information;
• Read the two factual situation;
• Choose ONE of the situations and analyze that from the perspective of the US law and the European Law as well! Be careful! Consider the infringement analysis and the free use / fair use analysis as well!

 

 

Technical background:

 

A file hosting service is an Internet hosting service specifically designed to host static content, typically large files that are not web pages. Typically they allow web and FTP access. They can be optimized for serving many users. One-click hosting 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 one-click host's server free of charge. Most such services simply return a URL, which can be given to other people, who can then fetch the file later on. The sites make money through advertising or charging for premium services such as increased downloading capacity, removing any restrictions the site may have or prolonging how long uploaded files remain on the site.

 

In the following case the “FastShare” website provides free and premium services. Under the free service you may can 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’s main income originates from the selling of goods to premium users for “coins” received after each download of the uploaded files. That is 1 coin is given for each separate downloads. The FastShare sells this way an “iiiPoood mp3 player” for 100.000 coins.

 

Factual situations:

 

a) Mr. X is a strange person. His main purpose is to make newly available contents, like movies, video clips, MP3 format musical works etc. available over the internet as soon as possible, even before their official release dates. No matter how, but Mr. X had access to Michael Jackson’s “This is it!” album before it was officially released. He decided to upload the MP3 format of the album to the FastShare web-hosting site. After he had uploaded the file to FastShare’s, he received the URL information of the upload that he published on his personal website www.takethis.org. Within a week, more than 100.000 people have downloaded the album via the FastShare’s servers. Mr. X, as a really happy person, after the 100.000th download buys the “iiiPoood” from the FastShare

 

b) Mr. Y is a highly respected university teacher. He truly believes in the innovation, and therefore he generally uses internet on his lectures. Once he decided to upload a Power Point presentation of his lecture series to the FastShare’s servers. He published the URL link of the file via e-mails to the 9 students of his “IP and Innovation” course. The Power Point presentation contains several excerpts from several musical compositions and video recordings, including the “Pretty Woman” made by Roy Orbison, and the trailer of the Men in Black movie starring with Will Smith.

 

Legal Question:

 

Suppose that the respective right holders became aware of the fact that Mr. X or Mr. Y shared some content via the FastShare service.

 

According to the original tasks CHOOSE ONE of the factual situations, and decide against whom, and on what basis would you file a suit in the United States and in Europe.