BY RICHARD SMIRKE
Shop, hotel or bar owners who provide free public wi-fi access cannot be held liable for users who commit online piracy, according to a preliminary opinion by the Court of Justice of the European Union.
The recommendation was made during a long-running copyright infringement case between Sony Music Entertainment Germany and Tobias McFadden, the owner of a lighting and sound equipment company based near Munich.
Legal proceedings were brought against Mr. McFadden when an unidentified musical work was made available for illegal download by a person or persons unknown via a freely accessible and unsecured wi-fi network operated by the defendant. The case was originally heard at a regional court in Munich before being referred to the Court of Justice in Luxembourg for deliberation.
In his opinion, advocate general Maciej Szpunar stated that “although an injunction may be issued against that operator in order to bring the infringement to an end, it is not possible to require termination or password protection of the Internet connection or the examination of all communications transmitted through it.”
Referring to the 2000 European Parliament directive on electronic commerce, the Advocate General also said that limitation of liability “precludes the making of orders against intermediary service providers not only for the payment of damages” but also “other costs relating to copyright infringements committed by third parties.”
Commenting on the ruling, the European Internet Services Providers Association’s Malcolm Hutty said the advocate general’s stance “further strengthens the consensus that copyright enforcement measures must be balanced with fundamental rights.”
“It says that restricting the availability of wi-fi access would be a disadvantage for society as a whole, that cannot be justified by benefits to copyright holders,” Hutty continued.
The Advocate General’s Opinion is not, however, binding and the case will now be deliberated by the Judges of the Court with a verdict to be announced at a later date.