The Attorney General advising the European Court on a case that pits a Pirate Party member who operated a public, password-free Wi-Fi network in Munich, has sided with the Pirate.
Professor Maciej Szpunar’s opinion isn’t the law, but is often influential in advising the Court’s ultimate decision.
Sony discovered the Wi-Fi network at Tony McFadden’s lighting and sound systems shop in Munich was being used for copyright infringement.
Its lawyers asked McFadden to put a password on it and take countermeasures, such as port blocking. The advisor to the Court in Europe today reckons that he can tell them to get stuffed.
German Pirate Party activist Patrick Breyer called it a victory against “the jurisprudence shaped by the content mafia” in German courts.
Article 12 of the EU’s e-commerce directive protects ISPs from having to police their networks, and shields them from secondary liability claims. The ruling means this also applies to public Wi-Fi operators who open public Wi-Fi networks alongside their main business, such as pubs and cafes… and pirates.
The court is bound to balance the EU fundamental rights, one side of which is the ability to conduct a business and enjoy protection for intellectual property, and on the other, “free expression”. But Szpunar is advising it do as little as possible.
PIRATEN-Erfolg im Grundsatzprozess gegen WLAN-Störerhaftung: Deutsche Pflicht zur WLAN-Verschlüsselung laut Eu... https://t.co/DAR12IvoZE— Patrick Breyer (@patrickbreyer) March 16, 2016
The AG’s advice runs counter to the subtle doctrine of balance developed by other German Courts, which goes by the name of Störerhaftung. [Literally: “disturber liability” or “interferer liability”]
This is a live issue in UGC (user generated content) cases across Europe, and is relevant in cases where the intermediary claims it need do nothing at all while counterfeit or unlicensed material floods through its servers, thus creating a “Get Out of Jail Free” card.
UK courts have agreed that the moral responsibility to do something to prevent casual infringement is perfectly reasonable, so long as it isn’t burdensome. See the explanation cited by Justice Arnold in L’Oreal vs eBay in pars 456-464.
The courts rarely make a decision contradicting their AG's advice but sometimes they do; the most notable example being in Google Spain v Gonzalez, the so-called "Right to be Forgotten" ruling, in 2014.
You can click on the press release here.