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Free Wi-Fi and Copyright Infringement
In Tobias McFadden v Sony Music Entertainment, the European Court of Justice has rather helpfully decided that businesses which offer free, unsecured (i.e. unprotected by a password) Wi-Fi to the public cannot be held liable for copyright infringement committed by users of the Wi-Fi.
McFadden owned a lighting shop in Germany which offered free Wi-Fi to anyone within range of his wireless router, the intention being to drive traffic to his website and increase awareness of his shop. Unfortunately an unknown user shared a song using his Wi-Fi network via a file sharing website. Sony sued Mcfadden for copyright infringement, claiming damages and asking for an injunction to prevent Mcfadden from allowing his Wi-Fi to be used to upload infringing songs.
McFadden argued that he should not be liable because he was a “mere intermediary”, offering the Wi-Fi but with no control over what users did with it. The court agreed, saying that allowing businesses to offer free Wi-Fi without fear of being sued for infringing acts by users was vital to uphold freedom of information. An injunction would be unreasonable because it would require McFadden to examine all the traffic over his network to identify infringing content. The value of an injunction is doubtful anyway where the infringing article (for example an MP3 file) is online and being shared worldwide so that shutting down one Wi-Fi network would have little impact.
The important points to note from Tobias McFadden v Sony Music Entertainment are:
- Businesses offering Wi-Fi (whether free or paid for) incidental to their main business will generally have a defence to copyright infringement by the Wi-Fi users.
- But the defence only applies where the business does not use the Wi-Fi to transmit the data in breach of copyright themselves and does not select or modify the recipient of the data.
- It is still important that your Wi-Fi policy makes clear that users are responsible for their own use.
This decision will be a great comfort to businesses such as holiday parks, hotels and pubs which routinely offer free Wi-Fi to help capture customer’s contact information for marketing purposes.