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Businesses that offer free wi-fi shouldn’t be liable for infringing customers, says European AG Advocate General

By | Published on Friday 18 March 2016


So, here’s a blast from the past, are cafes and shops that provide free wi-fi to their customers then liable if said customers do some of that pesky pirating on the free network?

The wi-fi issue has been part of the online piracy debate since the early days of music and movie companies trying to crack down on illegal file-sharing. What if a pirate uses a neighbour’s wi-fi network, or the free internet at a local coffee shop, in order to access or share unlicensed content? Can the owner of the wi-fi network be held liable? If not, couldn’t any accused pirate just claim someone else tapped into their wi-fi and did the infringing? But if so, wouldn’t that bring an end to businesses making wi-fi available for customers?

According to Torrentfreak, the Advocate General of the European Union’s Courts Of Justice has now provided an opinion on this issue as part of a long-running case focused on publically accessible wi-fi networks, stemming from litigation filed against a German shop owner by Sony Music back in 2010 after one of his customers infringed the major’s copyrights over his network.

A lower German court was inclined to say that the shop owner should be held liable for his customer’s infringement, but with the case having gone up to the European level, Advocate General Maciej Szpunar – whose opinion is not binding but is influential on the ECJ – reckons that the safe harbours enjoyed by internet service providers should extend to companies offering free wi-fi.

Though, adds Szpunar, a local court could in theory issue an injunction ordering a company offering free wi-fi to, in some way, restrict copyright infringing traffic, though any such requests would have to be “fair and balanced”.

And a “make your entire network secure” order shouldn’t qualify for that, he says, because “any general obligation to make access to a wi-fi network secure, as a means of protecting copyright on the internet could be a disadvantage for society as a whole and one that could outweigh the potential benefits for rightsholders”.

It remains to be seen how the ECJ responds, but this could be a landmark ruling on a long running debate.