UK Pub Owner Fined Due To Unauthorized Downloads On Free Pub WiFi?

from the safe-harbors? dept

Mon, Nov 30th 2009 6:00am — Mike Masnick

A bunch of folks have sent in the story of a nameless pub owner in the UK who has supposedly been fined £8,000 in a lawsuit brought by a copyright holder over unauthorized downloads that were done over free WiFi that the pub offered. Of course, there is a lot of missing information here, so I'm not quite sure how much to believe of this story without further evidence. The name of the pub is not given. The information was provided by a WiFi hotspot provider, The Cloud, which claims that the specific pub owner has not given permission to publicize the case. Yet, if it was a lawsuit, you would think that there would be some court records detailing this. It appears that the laws regarding safe harbors for copyright infringement are not nearly as clear as they are in the US. Under the DMCA it seems that any hotspot owner would have safe harbor protections against such a lawsuit, and it seems odd that a court would fine the pub owner when it was clearly a user of the access point that did the file sharing.

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Filed Under: file sharing, fines, safe harbors, uk, wifi
Companies: the cloud

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Anonymous Coward, 30 Nov 2009 @ 6:03am

Here's the problem: prove it was a "user" and not the pub owner himself, not an employee, or not a family member.

The pub is an END USER, not a service provider. That they allow others to connect to their Wi-Fi doesn't suddenly turn them into an ISP. They are the end user, allowing their friends to use their internet connection. By your logic, I could allow my friends to use my WiFi to download, and I would never be liable for anything.

It is a great legal dodge to claim everyone is a service provider, but that isn't what the law was intended to provide.
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- Chronno S. Trigger (profile), 30 Nov 2009 @ 6:12am
  
  Re:
  In the US, if you can legally provide WiFi to your customers then you are an ISP. You cannot share a residential or standard business package like that. No ISP would allow it, you must purchase the rights to share their connection (another thing I don't agree with, but since we're going with the letter of the law...). From what I hear about UK providers, it's the same exact thing.
  
  Now, I challenge you to prove it was the owner.
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  - Anonymous Coward, 30 Nov 2009 @ 7:33am
    
    Re: Re:
    Chronno, by your logic (which i agree with) one must 1st make sure the pub in question didn't have a regular residential package and that he in fact had purchased the right to share his connection.
    
    and as Mike mentioned already much details are missing.
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- Kazi, 30 Nov 2009 @ 6:14am
  
  Re:
  Actually, the pub provides a service to a group of end users.
  
  Basically, you fail to acknowledge that the pub is a service provider that subsidizes a paid service. Furthermore, **if** they use a business account they should be treated as a service provider, not an end user. If it is a personal account then, if your friends do something on it, you are liable for it. Cool, right?
  
  Weee, not hard?
  
  Oh yea, why is the pub owner fined and not the pub business? Watah is wrong!
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  - Kazi, 30 Nov 2009 @ 6:16am
    
    Re: Re:
    This article is deceptive. It is the pub that is fined and not the pub owner! ZDNet says so! Change title!
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  - Anonymous Coward, 30 Nov 2009 @ 6:20am
    
    Re: Re:
    Read the story, it isn't as simple as that.
    
    It isn't clear if the pub owner personally or the pub owner as the business got sued. That information isn't present. Also, the service is provide by "the cloud" which would be the service provider. There is no indication that the pub owner is an ISP. There is also no indication if the service is commercial, residential, or other, and no indication that service was provided to allow resale (even for free).
    
    Further, the story points out the idiocy of the idea that everyone is an ISP, as only the "big six" ISPs are required to retain access records. For someone to claim an ISP exemption, they should have to do all the same work as an ISP.
    
    Read the whole story, and you will see there are more holes in it than quality swiss cheese.
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    - Kazi, 30 Nov 2009 @ 6:30am
      
      Re: Re: Re:
      1.) Yes, the title and the first line of the article say two different things regarding who got fined.
      
      2.) I'm speculating on speculations from a speculation of speculations. I'm awesome.
      
      3.) Article basically defines any open network accessible by the public as a public communication service that doesn't need to log user data unless asked to by the government. The 6 are required as they, I'd guess, have been asked to by the government to retain the data (And, the article suggests it is subsidized)
      
      4.) Yummy, swiss cheese.
      [ link to this | view in chronology ]
- senshikaze (profile), 30 Nov 2009 @ 6:22am
  
  Re:
  What if this was a business that didn't server the public, but had wireless internally and an employee brought a personal laptop and started downloading "illegally"? Would it be fair to sue the business?
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  - Shawn (profile), 30 Nov 2009 @ 6:39am
    
    Re: Re:
    no
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- PaulT (profile), 30 Nov 2009 @ 7:01am
  
  Re:
  "The pub is an END USER, not a service provider."
  
  FTA:
  
  "Wi-Fi hotspots in public and enterprise environments providing access to the internet to members of the public, free or paid, are public communications services"
  
  There seems to be a grey area with regard to records and so on, but the business was a service provider by virtue of, you know, offering a service.
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- Anon, 30 Nov 2009 @ 7:11am
  
  "Here's the problem: prove it was a "user" and not the pub owner himself, not an employee, or not a family member."
  
  Prove it WAS the pub owner...
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- Mike Masnick (profile), 30 Nov 2009 @ 7:56am
  
  Re:
  Here's the problem: prove it was a "user" and not the pub owner himself, not an employee, or not a family member.
  
  No, I'm afraid that's backwards. It is up to the accuser to prove who was actually using the service, not the service provider.
  
  The pub is an END USER, not a service provider.
  
  No, that's incorrect. The pub is providing internet as a service to users. It's a service provider under the law, exactly as the law intended.
  
  That they allow others to connect to their Wi-Fi doesn't suddenly turn them into an ISP.
  
  Yes, actually, it does. Under US law this is quite clear. UK Law appears to be slightly more murky, but not much.
  
  By your logic, I could allow my friends to use my WiFi to download, and I would never be liable for anything.
  
  No, you seem to be (totally) misreading how safe harbor rules work. You can still be liable, if it can be shown that you were the user who shared the material.
  
  It is a great legal dodge to claim everyone is a service provider, but that isn't what the law was intended to provide.
  
  Again, you seem to not understand how safe harbors work. You can still go after the individual user -- and if it later turns out to be the owner of the hotspot, then you are still very much liable. You can't just blame the hotspot owner for all use (as you apparently want to do, for some unexplained reason).
  
  And, yes, the law was VERY MUCH intended for this exact purpose. There was great fear that anyone providing a user service would get blamed for actions of users, and thus safe harbor provisions were put in place to protect against that. You might want to look up some of the history of the debates around these things.
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  - Anonymous Coward, 30 Nov 2009 @ 8:23am
    
    Re: Re:
    Again, you seem to not understand how safe harbors work. You can still go after the individual user -- and if it later turns out to be the owner of the hotspot, then you are still very much liable. You can't just blame the hotspot owner for all use (as you apparently want to do, for some unexplained reason).
    
    It isn't to "just blame the hotspot owner", but rather to require some level of accountablity. If you want to be considered an ISP, you should have to do all the things that an ISP is required to do, and that should include logging users onto your service. The only way a service provider should be able to be exempt is by being able to show that they themselves were not the end users.
    
    Think about it Mike, what you are suggesting is a totally SODDY defence. You just add an open wireless onto any internet connection, declare yourself an "ISP", and anyone comes to claim copyright violation you just say "SODDY!" and point at your wireless unit.
    
    That isn't the intention of safe harbor laws. It's being used as a dodge. If the pub owner cannot show who used the internet that he contracted for (even a MAC address), he should have some liablity.
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    - Anonymous Coward, 30 Nov 2009 @ 8:42am
      
      Re: Re: Re:
      >>If the pub owner cannot show who used the internet that
      >>he contracted for (even a MAC address), he should have
      >>some liablity.
      
      Then who is responsible for perpetuating the desired message of the article? "We need to further incentivize the welfare mentality to further create a nanny state"
      
      With all the cameras installed in London, I find it amazing that they can't find this guy. "Sometime this Summer" What the hell kind of complaint is that? Are you kidding me? What Judge wouldn't dismiss that?
      
      Start seeing this for what it is. It's like your neighbor parked his car outside his house while he went on Holiday. And while he was gone, some kid came by and threw water balloons at it. There's no dents or damage, just broken balloons on the street. Now your fruitcake neighbor is blaming you for not watching his car and wants the court to track him down and give his car a new paint job.
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      - Anonymous Coward, 30 Nov 2009 @ 10:45am
        
        Re: Re: Re: Re:
        Start seeing this for what it is. It's like your neighbor parked his car outside his house while he went on Holiday. And while he was gone, some kid came by and threw water balloons at it. There's no dents or damage, just broken balloons on the street. Now your fruitcake neighbor is blaming you for not watching his car and wants the court to track him down and give his car a new paint job.
        
        Nice story, but not relevant. Now, if the neighbor parked his car inside your garage and came back and found it all scratched, you might have something.
        
        The reality is that the "end of the line" for the internet connection is the pub, and thus the pub owner.
        
        There is so much missing in this story, such as "did the pub manager use a home connection instead of a business connection"?
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    - Anonymous Coward, 1 Dec 2009 @ 3:43am
      
      Re: Re: Re:
      Think about it Mike, what you are suggesting is a totally SODDY defence. You just add an open wireless onto any internet connection, declare yourself an "ISP", and anyone comes to claim copyright violation you just say "SODDY!" and point at your wireless unit.
      Actually, no. The pub isn't sticking open wireless onto a random internet connection and declaring itself an ISP. The pub is a hotspot location for internet services provided by The Cloud, which is a genuine ISP - just like T-Mobile and Starbucks.
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- Michael, 1 Dec 2009 @ 4:47am
  
  Re:
  Assuming in the UK you are innocent until proven guilty, the pub owner would have no obligation to prove they did not download, it would have to be proven that they specifically did. Having an open Wi-Fi connection that anyone walking past could use would seem to be a pretty good defense.
  
  Now, if there was infringing content on the pub owner's computer, I think there may be a case.
  [ link to this | view in chronology ]
Richard Cant (profile), 30 Nov 2009 @ 6:41am

Reading the article might be a good idea
The article discusses the issues of liability and whilst noting that it is "somewhat of a grey area" it generally concludes that the pub should not have been liable under UK law

eg
According to legal advice sent to The Cloud by the law firm Faegre & Benson on 17 August, "Wi-Fi hotspots in public and enterprise environments providing access to the internet to members of the public, free or paid, are public communications services".

Also the issue of not being a proper ISP because of not keeping records is addressed and dismissed.

(Because the point is that the government has to pay the big ISPs to keep the records)
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- Mike Masnick (profile), 30 Nov 2009 @ 8:16am
  
  Re: Reading the article might be a good idea
  The article discusses the issues of liability and whilst noting that it is "somewhat of a grey area" it generally concludes that the pub should not have been liable under UK law
  
  I did read the article, and my description remains accurate. I said that the laws in the UK "are not nearly as clear as they are in the US." And that's true. If they were as clear, there wouldn't be a question and this lawsuit would have been tossed out quickly under the safe harbors. The fact that it (allegedly) resulted in a fine suggests some ambiguity in the laws.
  [ link to this | view in chronology ]
  - Richard (profile), 30 Nov 2009 @ 9:02am
    
    Re: Re: Reading the article might be a good idea
    Sorry Mike - my comment wasn't really aimed at you but at numerous commenters who were having a heated discussion about things that could easily have been resolved by clicking and reading.
    
    Incidentally I do think that UK law is pretty clear on the point and so the lawsuit should have been thrown straight out - unless there is some extra bit of information that we don't know.
    
    Btw did you read the corrected version of the story?
    
    ERRATUM: In an earlier version of this story, Professor Lilian Edwards was erroneously quoted as saying that businesses would be "be responsible in theory" for users' unlawful downloads, under "existing substantive copyright law". She actually told ZDNet that businesses would not be responsible in theory, and we have amended the story accordingly. (my emphasis)
    
    which makes it pretty clear what the law actually says.
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Phatnobody (profile), 30 Nov 2009 @ 6:58am

It's a Scam (Maybe)
The Cloud is a paid for WiFi provider trying to sell it's service to pubs.

The scare story is about an unnamed pub offering free (read: not the Cloud's) WiFi and getting sued.

Implied message from story? Dear pubs, don't offer your own free service and get sued, use the Cloud's service and be safe.

I'm calling BS in the absence of more information.
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- Mike Masnick (profile), 30 Nov 2009 @ 8:17am
  
  Re: It's a Scam (Maybe)
  The scare story is about an unnamed pub offering free (read: not the Cloud's) WiFi and getting sued.
  
  Ah... interesting. That would explain a lot...
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  - Niall (profile), 30 Nov 2009 @ 8:27am
    
    Re: Re: It's a Scam (Maybe)
    Not accurate. The article specifically says "he would not identify the pub concerned, because its owner — a pubco that is a client of The Cloud's", so the implication is that the pub uses The Cloud's service.
    
    Pubs in Britain can be owned privately, although many of them are owned by breweries, and some are franchises. So more information here would help as to who is being held liable. If brewery-owned, the manager would be most likely, otherwise it is likely to be the owner or franchisee.
    
    Contrary to what Phatnobody says, The Cloud provides 'free' wireless services through many outlets - McDonalds being a primary user of their services. Free to the customer of course, but it doesn't stop them charging the pub an arm and a leg :)
    [ link to this | view in chronology ]
    - senshikaze (profile), 30 Nov 2009 @ 8:37am
      
      Re: Re: Re: It's a Scam (Maybe)
      wouldn't that mean it is in "The Cloud's" best interest to protect one of it customers? Wouldn't they be able to turn around to other clients and would be clients and say "Here, a pub owner was sued, but we came in and helped get the baseless lawsuit thrown out. Use our service and we will make sure that you are protected as well."
      That seems worth an arm and a leg to me.
      [ link to this | view in chronology ]
      - Niall (profile), 30 Nov 2009 @ 11:13am
        
        Re: Re: Re: Re: It's a Scam (Maybe)
        That would be the logical area for them to sell their service. Trouble is, with a murky law, it's not easy to offer that, and not leave yourself open to paying for people 'breaking' the law. This is one of the (very) few times when I miss the UK not having a version of the American DMCA - we need proper safe harbours!
        [ link to this | view in chronology ]
    - Phatnobody (profile), 30 Nov 2009 @ 2:57pm
      
      Re: Re: Re: It's a Scam (Maybe)
      Not accurate. The article specifically says "he would not identify the pub concerned, because its owner� a pubco that is a client of The Cloud's", so the implication is that the pub uses The Cloud's service
      But by definition it would then not be free. So something in this story does not add up.
      
      I still think this stands a fear mongering story even if the overall discussion about UK law is valid. I'm pretty sure the Cloud is protected from being sued so whichever you look at it, there are contradictions.
      [ link to this | view in chronology ]
NullOp, 30 Nov 2009 @ 7:04am

Logic
Think of it. Who is better to sue, the ISP or the pub owner? The ISP has relatively deep pockets so it can defend itself. The pub owner is a much better target as long as the $ values are kept down. Also the ISP probably has much better records as to who did what while the pub owner has no clue as to who does what on the system.
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Overcast (profile), 30 Nov 2009 @ 7:15am

Why not fine the ISP too?

Don't forget to fine the Telco too.

And fine the government for creating laws to allow it!

And the city for licensing the pub!
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- Anonymous Coward, 30 Nov 2009 @ 7:42am
  
  Re:
  how about the music creator, if he hadn't made that song it wouldn't be shared and this whole issue wouldn't exist.
  [ link to this | view in chronology ]
  - Kazi, 30 Nov 2009 @ 8:16am
    
    Re: Re:
    What about his ancestoral gene pool? If it didn't exist he wouldn't be a probalem at all.
    [ link to this | view in chronology ]
    - senshikaze (profile), 30 Nov 2009 @ 8:38am
      
      Re: Re: Re:
      i think they should just go on and fine the Earth for making sure that the planet was livable enough for people to illegally download.
      That is the true crime here.
      [ link to this | view in chronology ]
      - Anonymous Coward, 30 Nov 2009 @ 9:14am
        
        Re: Re: Re: Re:
        Sue the sun. Without its heat, Earth wouldn't have turned into an habitable world, leading to the creation of the artist, the content, the government, the pub, the owner and the user that shared said content.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 30 Nov 2009 @ 1:11pm
        
        Re: Re: Re: Re: Re:
        I'm blaming the Big Bang.
        [ link to this | view in chronology ]
Anonymous Coward, 30 Nov 2009 @ 7:35am

Brittan has again shown how screwed up it is.
Isn't it odd that the Rights Holder isn't listed anywhere in the story?

Secondly, can anyone prove that a crime of viewing/using copyrighted material was committed, or were bits just received?
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- Anonymous Coward, 30 Nov 2009 @ 7:48am
  
  Re: Brittan has again shown how screwed up it is.
  >> Isn't it odd that the Rights Holder isn't listed anywhere in the story?
  
  GOOD POINT. For all we know, the claim may be by the AP for an image of Obama by Shepard Farley. Also it says it happened "over the summer" That's an unacceptable window of time. This whole story is bogus. The £8,000 claim is bogus, and someone who can't make money by producting a product, has a welfare mentality. They are wasting everyone's time.
  [ link to this | view in chronology ]
Rabbit80 (profile), 30 Nov 2009 @ 8:17am

Here is another question - Recently, BT introduced a firmware update for their business routers that allows access to the BT OpenZone (A subscription wifi service). If I enable that service on my router, can I (or my business) be held liable for anyone that uses it as it shares the same IP address?
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- Anonymous Coward, 30 Nov 2009 @ 8:40am
  
  Re:
  No, because they would have to log in with their BT access, which means that BT would be tracking who is logged in.
  [ link to this | view in chronology ]
Richard (profile), 30 Nov 2009 @ 9:21am

The story does look a bit bogus
Because it talks about someone being fined for downloading. Now it is a common perception amongst the public that this happens but as far as I am aware no one has actually been sued in the UK for downloading. (Uploading is another matter of course.) There is a primary problem of proof with downloading since you would need to snoop on a transaction between two other parties.
Now certain law firms and "heavies" have been going around extorting money from people with threats that relate to alleged illegal downloading - but since illegal copying is either illegal for both parties or neither they should have a hard time proving anything in court without admitting that either:

1. They were not authorised to distribute the material - in which case they were themselves equally liable for infringement.

or

2. They were authorised to distribute - in which case no infringement has taken place.

The use of the word downloading suggests that the story has been passed on at some stage by someone who didn't know what they were talking about.
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Glenn (profile), 30 Nov 2009 @ 9:40am

What a load of nonsense
All I have to say is what a load of nonsense. The courts really need some young blood that understands technology instead of people who are trying to make sense of it with old ways of thinking ... still waiting on that new thinking to emerge
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Stephen, 1 Dec 2009 @ 3:28am

comment
Think of it. Who is better to sue, the ISP or the pub owner? The ISP has relatively deep pockets so it can defend itself. The pub owner is a much better target as long as the $ values are kept down. Also the ISP probably has much better records as to who did what while the pub owner has no clue as to who does what on the system.
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Carl Barron, 1 Dec 2009 @ 7:43am

New Download Law legally Faulty
All Internet Cafes and Wi-Fi hotspot owners should read this.

As a pub owner in UK has been fined £8000 by the government when one of his customers was caught downloading copyrighted digital content from the pub’s Wi-Fi hotspot do read the following.

Both technically and legally speaking this new Law as to downloading ‘Copyright Material is seriously faulty. As 99% of every WebPage you view be it Google News or other commercial webpage is Copyrighted, hence when you download that page under this faulty law you are committing a crime as it is downloaded into your web browser to enable you to read it.

Hence all such public facilities offering either Internet connection be it Wi-Fi hotspot.or other should consult with a solicitor as to placing a ‘Disclaimer Notice’ in full view of the public, and or getting the user / users to sign a disclaimer disclaiming any legal responsibilities for content viewed or downloaded.

Signed Carl Barron Chairman of agpcuk
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pdf content, 2 Dec 2009 @ 1:55am

justice
I as a consumer was harmed if this really happens, law enforcement should know what really happened ...
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