A case brought by Sony Music over illegal music downloads using a free WiFi service has led to a surprisingly restrictive conclusion from the EU court. The court ruled that a Berlin business-owner Tobias McFadden, who provided an unprotected free Wi-Fi network to the public,
- is not responsible for copyright infringement by a user of the WiFi, but
- can be required to take steps to control misuse of the service and ordered to pay associated costs.
The decision goes against the earlier advisory opinion by Advocate General Spzunar, and has been met with concern by free access champions. In his more liberal analysis, AG Spzunar said that a provider of free WiFi was a “mere conduit”, recognised by the E-Commerce Directive. A "mere conduit" is a service provider who
- does not initiate the transmission;
- does not select the receiver of the transmission; and
- does not select or modify the information contained in the transmission.
and is not liable for the information transmitted.
Requiring security measures on the use of the WiFi network would be disproportionate, Spzunar felt, especially as
"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".
He recognised the wider benefits of promoting connectivity, saying that
"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 rightholders".
But the final decision took a different direction. The EU court went right back to the balance that has to be struck between conflicting fundamental EU rights; here the right to protection of intellectual property as against the rights of freedom to conduct a business and the right to freedom of information.
While agreeing that the WiFi provider should not have to pay compensation, the EU judges said that national courts could grant injunctions to prevent further misuse of the network and order payment of litigation and implementation costs. This could include a requirement to password-protect the network.
WiFi providers may now face costly and time-consuming litigation requiring them to tighten up their access requirements.