the operator of a shop who offers a Wi-Fi network free of charge to the public is not liable for copyright infringements committed by users of that network. [However, he/she may be required to password-protect her network] in order to bring an end to, or prevent, such infringements.
In this case, the owner of a shop offered public access to a WI-FI network that was used to unlawfully download music. The Landgericht München I (a German Regional Court), deciding the case between Sony and Mr, Mc Fadden applied Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“Directive on Electronic Commerce”), and referred a series of questions to the ECJ.
The ECJ confirmed that “making a Wi-Fi network available to the general public free of charge in order to draw the attention of potential customers to the goods and services of a shop constitutes an ‘information society service’” and therefore the Directive applies.
Next, the Court confirmed that the service provider offering access to a communication network is not liable if she/he did not: (i) initiate the unlawful transmission; (ii) select the recipient of the transmission; and (iii) select or modified the information contained in the transmission.
Consequently, if the service is limited to a “technical, automatic and passive process for the transmission of the required information”, the “copyright holder is not entitled to claim compensation on the ground that the network was used by third parties to infringe her rights.
However, the Court highlights how “an injunction ordering the internet connection to be secured by means of a password is capable of ensuring a balance between, on the one hand, the intellectual property rights of rightholders and, on the other hand, the freedom to conduct a business of access providers and the freedom of information of the network users”. In order to ensure the deterrent effects, users shall be prevented from acting anonymously and they shall be required to reveal their identity to obtain the password.
Finally, the Court explained that the Directive on Electronic Commerce does not preclude the copyright holder from seeking before a national authority to have such a service provider ordered to “end, or prevent, any infringement of copyright committed by its customers”.
For more information, Francesca Giannoni-Crystal