EU Court: Retailer not liable for infringements via open Wi-Fi network

The European Court of Justice has ruled in the Mc Fadden case that a shopkeeper is not liable for copyright infringements committed via an open Wi-Fi network. A entitled party can, however, demand that it protects its network with a password.

In this way, users of the network must be prevented from committing further infringements, the Court wrote. This means that a shopkeeper can legally be seen as an intermediary, for example just like a hosting provider. Under certain conditions, these intermediaries are nothing more than a ‘conduit’ for information, the EU Court writes.

The conditions are that the initiative for the transfer must not lie with the service provider, that the recipient of the information is not determined by the service provider and that the information transmitted is not selected or changed by the service provider.

This means that as long as a shopkeeper only opens his network and does not interfere with the information that is exchanged about it, he is seen as such a conduit. He is therefore not liable for copyright infringements by users of his network, for example when they download a movie.

However, it is possible that the rights holder of that film has a court or regulator order the store to prevent further infringements. According to the Court, an appropriate measure is to set a password, which users cannot obtain anonymously.

However, a retailer cannot be expected to constantly monitor its network and actively look for breaches. Also, complete closure of the open network may not be requested if less drastic measures are possible. In this case, the EU Court answered the questions posed by a German judge. The dispute is between Sony and Tobias Mc Fadden, who owns a company for lighting and sound technology.

There he offered an open network, through which a user downloaded music from Sony in 2010. In Germany, owners of open Wi-Fi networks can be liable for user infringements. However, this Störerhaftung should soon be abolished.

Update, 12:20 PM: The text of the ruling is now also available.