EU Court Of Justice Advocate General Says Open WiFi Operators Shouldn't Be Liable For Infringement

from the good-to-see dept

Back in 2010, there was a troubling ruling in Germany, saying that people who ran open WiFi access points needed to secure them, or they could be held liable for people using those connections to download infringing content. This seemed to contradict with the European Ecommerce Directive that gives safe harbors to internet service providers (similar to our DMCA safe harbors in the US). In the fall of 2014, we noted that the EU Court of Justice was taking up that case and now that court's Advocate General has recommended that the court allow open WiFi, in saying that, yes, those who operate WiFi access points can be considered ISPs under the law, and are thus protected from liability.

The specific case involved a shop owner (who also happens to be a Pirate Party member -- and whose shop offered lighting and music equipment for music events), who had an open WiFi access point in the shop, where someone apparently downloaded some music. Sony then sued him and argued he was liable for having the open WiFi.

A lot of the focus was on whether or not offering a free WiFi access point in a shop counted as economic activity, to be covered by the Ecommerce Directive, and the Advocate General said that it pretty obviously is, despite the fact that Sony Music argued it did not.

In my view, where, in the course of his business, an economic operator offers Internet access to the public, even if not against payment, he is providing a service of an economic nature, even if it is merely ancillary to his principal activity.

The very operation of a Wi-Fi network that is accessible to the public, in connection with another economic activity, necessarily takes place in an economic context.

Access to the Internet may constitute a form of marketing designed to attract customers and gain their loyalty. In so far as it contributes to the carrying on of the principal activity, the fact that the service provider may not be directly remunerated by recipients of the service is not decisive. In accordance with consistent case-law, the requirement for pecuniary consideration laid down in Article 57 TFEU does not mean that the service must be paid for directly by those who benefit from it.

Sony Music’s argument, by which it disputes the fact that the service in question is ‘normally’ provided for consideration, fails to convince me.

Admittedly, Internet access is often provided, in a hotel or bar, free of charge. However, that fact in no way contradicts the conclusion that the service in question is matched with a pecuniary consideration that is incorporated into the price of other services.

I see no reason why the provision of Internet access should be viewed differently when it is offered in connection with other economic activities.

Sony Music even tried to claim that because the shop owner at one point changed the name of the access point to "Freedom, not Fear" (in German) that it demonstrated that it wasn't an "economic" effort. The Advocate General then explains to Sony Music the difference between "free as in speech and free as in beer."

Mr Mc Fadden probably changed the name of his Wi-Fi network to ‘Freiheitstattangst.de’ (freedom, not fear) so as to show his support for the fight against State surveillance of the Internet, that fact in itself has no bearing on the definition of the activity in question as ‘economic’.

And, based on that, the safe harbors should apply, and someone who operates an open WiFi network, as part of a business, can't be forced to lock it up.

Still, the AG does still suggest that injunctions could be possible, just not to the level of password protecting the access point. The opinion suggests that injunctions can be put in place if they are "effective, proportionate and dissuasive" and that they be targeted at specific infringement, rather than a general kind of injunction. And even with an injunction, the access point owner should still not be considered liable for user actions.

Another key point raised in the opinion is that open WiFi has plenty of value, and to argue that all WiFi should be locked up, or that open WiFi is just a tool for infringement is unfair:

First, public Wi-Fi networks used by a large number of people have relatively limited bandwidth and are therefore not particularly susceptible to the risk of infringement of copyright protected works and objects. Secondly, Wi-Fi access points indisputably offer great potential for innovation. Any measures that could hinder the development of that activity should therefore be very carefully examined with reference to their potential benefits.

Of course, as this is just the opinion of the Advocate General, the EU Court of Justice could still go in another direction. It quite frequently does accept the AG's opinion, but does not always do so. Hopefully, this time, it listens.

Filed Under: cjeu, court of justice, eu, eucj, germany, isps, liability, open wifi, wifi