Public wifi providers ‘not liable for copyright infringements’

Hotspot operators may be required to password-protect their network, says EU court

Music industry bodies may seek court orders to force the operators of free wifi hotspots to protect their networks with a password and to ask users for their identities before they can access them, the EU’s top court has said.

In a case brought by a German Pirate Party politician, the Court of Justice of the European Union ruled that the operator of a shop offering a wifi network free of charge to the public was not liable for copyright infringements committed by users of that network.

However, it said the EU’s e-commerce directive “does not preclude the copyright-holder from seeking before a national authority or court to have such a service provider ordered to end, or prevent, any infringement of copyright committed by its customers”.

It said a hotspot operator may be required to password-protect its network in order to bring an end to, or prevent, such infringements.

The case was brought by Tobias McFadden, the owner of a German lighting and sound system business, who sued Sony Music after the company sought compensation when someone used his wifi hotspot to download music illegally in 2010.

Patrick Breyer, the Pirate Party's data protection expert, said he was appalled by the decision.

Compulsory identification

“This jurisprudence is backward and a technophobic bowing before the content industry. Following its logic, using public telephone booths and letterboxes should require identification too. The legislator needs to fix this.”

Mr Breyer said that contrary to the court’s assumption, compulsory identification would not dissuade users from file-sharing.

“It is impossible to trace back a copyright infringement to a specific wifi user even if they use a password.

“The court is ignorant of the devastating consequences of this judgment for Europe’s information infrastructure,” he said.

“Rights-holders are sufficiently protected by mechanisms to have copyrighted content taken down. Instead of prohibiting open password-free wifi, the EU should legalise file-sharing and compensate copyright-holders.

“The Pirate Party fights for a free and anonymous exchange of ideas and information via the internet. Today’s ruling is a complete disaster.”

Mr McFadden said: “The free exchange of information via the internet cannot be regarded a source of danger in a democracy but should be recognised a prerequisite to a democratic state.

“To us Pirates, unrestricted access to the internet and to information is a human right in the 21st-century.”

‘Grave consequences’

A coalition of industry players have warned the court of the “grave consequences” of requiring the closure of open wifi networks due to copyright enforcement.

The Electronic Frontier Foundation, OpenRightsGroup, Mozilla and others said open networks aided "emergency services and disaster robustness".

On Wednesday, European Commission president Jean-Claude Juncker in his State of the Union address flagged proposals for free mobile roaming and wifi in cities across the European Union.

He also announced proposals for major reform of copyright law in the EU to ensure authors, publishers and other content creators were adequately remunerated for their work.

Barrister and associate professor of law at Trinity College Dublin Dr Eoin O’Dell said the issues raised in the judgment could largely be dealt with in an internet service provider’s terms of service.

“If 3 or Vodafone or whoever are providing broadband to an internet café, they can impose on the cafe all these additional obligations, that the service password is protected and that there is a login screen where people login with real-world details.

“None of this changes a great deal. It has the potential to make it a little more awkward to use a terminal in an internet cafe.”

Law lecturer at UCD and chairman of Digital Rights Ireland, Dr TJ McIntyre, said a lot of the judgment was positive, in that it found liability cannot be imposed on wifi operators rather than on users.

But he said it was “very unusual” that the court would reach a conclusion that effectively required identifying all internet users in case one of them did something wrong.