This opinion was prepared on behalf of the filebit.pl service to assess the legality of the portal's operation. The opinion is prepared based on explanations provided by the client and after analyzing the service terms and website content.
The fileBit.pl service operates by offering access to other hosting services within a single user account and enables downloading files from these partner services. The service transmits files within purchased packages in real-time, without storing them on the server. The service does not collect personal data of users or IP numbers, and due to real-time file transmission, the service is unable to interfere with or check the content of these files.
The activity of the Service and its liability, beyond general provisions of the Civil Code (art. 750 CC - appropriate application of commission provisions), will be shaped based on the Act of July 18, 2002 on the provision of electronic services. According to art. 12 of this act: - sec. 1 - a service provider who provides electronic services including transmission of data provided by the service recipient in a telecommunications network or providing access to a telecommunications network within the meaning of the Act of July 16, 2004 - Telecommunications Law, is not liable for the content of such data, if: 1) is not the initiator of data transmission; 2) does not select the recipient of data transmission; 3) does not select or modify information contained in the transmission. Sec. 2 - the exclusion of liability referred to in sec. 1 also includes automatic and short-term transmission, and data is not stored longer than is necessary under normal conditions for transmission completion. By design, therefore, the service administrator will not be liable for possible law violations by service users through downloading files with content that violates the law, as there is no possibility of any control over either transmission recipients or transmitted content.
The service uses existing infrastructure for its operation and offers only the possibility of downloading data from other services within one account. Moving to hosting services (i.e., providing server space and storing data on it) - such services are subject to the act on the provision of electronic services, thus the application of telecommunications law is excluded. This is because hosting does not fall under the concept of telecommunications services, as the essence of hosting cannot be reduced to transmitting signals in a telecommunications network. The client's activity will not be subject to telecommunications law, as this act refers only to telecommunications enterprises. The service's activity will be para-hosting activity with the reservation that apart from the possibility of creating a user account, the service does not offer server space for file storage.
Regarding violations by the service and its users of copyrights to downloaded works, it is necessary to first analyze art. 23 of copyright law:
"1. Without the creator's permission, it is allowed to use an already disseminated work free of charge within the scope of personal use. This provision does not authorize building according to someone else's architectural and architectural-urban work and using electronic databases that meet the characteristics of a work, unless it concerns one's own scientific use not related to profit purposes.
2. The scope of personal use includes the use of individual copies of works by a circle of people in personal relationship, in particular kinship, affinity or social relationship.
Art. 231. Creator's permission is not required for temporary or incidental reproduction of works, having no independent economic significance, constituting an integral and essential part of a technological process and aimed solely at enabling:
1) transmission of a work in a teleinformation system between third parties through an intermediary or
2) lawful use of a work."
The above articles do not apply to computer programs pursuant to art. 77 of copyright law.
Thus, as long as downloaded works will serve the user's personal use and have been previously disseminated, their downloading and consequently assistance in downloading from the internet will not constitute a law violation. The condition is that these works have already been disseminated, meaning that the author has made them available or the author has expressed consent to their dissemination in any way. The service terms should include that downloaded works in accordance with the law may only be downloaded for personal use and cannot be further disseminated, and that downloading software that requires a paid license for use is prohibited.
The service does not enable file dissemination, so there is no possibility of the service violating copyright law provisions.
Kancelaria Radcy Prawnego Hubert Wojtyniak
ul. J. Matejki 36/5 60 - 768 Poznań