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EU Court Says Hotspot Owners Aren't Liable For 3rd-Party Piracy
Mickeycaskill writes: A preliminary ruling from a European Court of Justice Advocate General has said it is not reasonable for owners of public Wi-Fi hotspots to be held liable for copyright infringement committed by users on these networks. Sony took legal action against a German business owner after a third party allegedly illegally downloaded music to which the record label owned the rights to on the basis the network should have been secured. However this view has been rejected by the Advocate General who says it is impossible for all public Wi-Fi to be secured. His recommendation will now be debated by European judges.
I realize that the law works differently for little people and all(though it's not as though Team Media have been shy about insisting that basically everyone who in some way facilitates internet use should have a responsibility to protect their precious 'content' for them, from ISPs to search engines); but I'm a trifle baffled by how it could even be a serious question whether somebody operating an internet-connected wifi AP is responsible for the actions of the users of that AP. More or less everyone accepts that ISPs, telcos, and the like can't possibly be held responsible for every last dumb or criminal thing that their customers do or we'd have to shut down basically everything; and isn't a public AP just a particularly small last-mile ISP with even less practical ability to keep tabs on its customers(since it may not have much info on them, compared to ISPs that know where you live or have your billing information; and is atypically likely to be operated as an amenity by technically unsophisticated proprietors of a coffee shop/hotel/etc. rather than by an ISP that may have clueless tier 1 reps; but can't stay in business without at least some hardcore NOC types in the background).
Yes, operating a hotspot for the benefit of your business off the cheapest 'home' internet plan may be a breach of your ISP's ToS; but that's a totally separate issue, to be taken up between you and them if they care so much, and not relevant to your culpability for what 3rd parties do on your hotspot.
The case that got escalated to the EU court is as described in the blurb, but it's not a new situation at all. It got escalated because Sony sued "the wrong guy", a Pirate Party member and Freifunk activist who didn't just cave when Sony's lawyers demanded 800 EUR because someone had shared music via his open wireless network. The concept is called "Störerhaftung", which means that while you're not liable for the copyright infraction as such, you are liable for the hazard created by operating the Wifi in a way that doesn't prevent the infraction. This concept is the reason why publicly accessible Wifi is a rarity in Germany, and mostly operated by large ISPs, whereas public hotspots are ubiquitous in other European countries. The current "solution" that is used by Freifunk and many other hotspot operators is to tunnel all traffic from the Wifi hotspot through a VPN provider in a different country that doesn't have this liability-by-proxy concept (usually the Netherlands). This way the traffic isn't traced back to the operator of the Wifi hotspot and the lawyers can't collect hundreds of Euros for sending a letter, as they have been doing for at least 10 years. Angela Merkel's party is still fighting to keep public Wifi as useless as possible by requiring all sorts of hoops that a hotspot operator has to jump through to be exempted from being liable by proxy. So, this is not Germany leading the EU to enlightenment. It's one guy in Germany trying to force Germany to catch up to its neighbors.