Open and Closed Case…European Court considers case challenging the implicit ban on open WiFi in the name of responsibility for copyright infringement

Posted: 4 June, 2015 in EU
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European Court of Justice Depending on the outcome of a pending case there that calls the viability of open wireless networks into question. EFF and its partners have formulated an open letter presenting our views on why a result that threatens open wireless would be a serious loss to innovators, small businesses, travelers, emergency services and users at large.

One of the legal protections that currently supports open wireless is the principle that Internet intermediaries, such as ISPs and wireless hotspot operators, are not responsible for content that passes over their networks. In Europe, this principle derives from Article 12 of the E-Commerce Directive , which immunizes a so-called mere conduit from liability for communications over their networks, only on condition that they did not initiate the communication, select its recipient, or modify it in transit. This provision, however, does not shield such providers from various type of enforcement measures in aid of rights holders, such as website blocking. The permissibility of these measures then depends on a simple rule: are they good for the society at large?

The application of this legal framework to open wireless networks has come under challenge in the McFadden reference (C-484/14) concerning a German shopkeeper whose free open wireless network was allegedly used to infringe copyright. In the preliminary reference to the Court of Justice of the European Union, the Europe’s highest court is asked whether an enforcement practice requiring open wireless networks to be locked is an acceptable one. Germany’s Federal Supreme Court in 2010 held that the private operator of a wireless network is obliged to use password protection in order to prevent abuse by third parties. If the CJEU affirms this finding, the effect could be to extend this bad precedent throughout Europe, grounding the open wireless movement across the continent. If on the other hand it rejects that finding, German law could be forced to return to sanity, allowing thousands of hotspot operators to open up their networks again.

The main question point in the case turns on whether locking of open wireless networks would be a proportionate enforcement mechanism that advances the public interest. The open letter, co-written with Martin Husovec , Affiliate Scholar at Stanford Law School’s Center for Internet & Society (CIS), points out that prohibiting open wireless networks creates a serious obstacle to legitimate trade, that cannot be justified by the limited potential benefits of locked-down networks to rightsholders. The letter highlights exact instances of social benefits that will be lost if locking of open wireless networks becomes a standard. Holding wireless network operators anyhow accountable for content that passes over their networks thus should be against European law.

The open letter that we publish today has been supported by a coalition of other organizations from both sides of the Atlantic who support the ideals of the open wireless movement, and concur with our conclusion that an adverse decision in the McFadden case that requires Europe to lock down its open wireless networks would be a blow to human rights, economic progress and innovation across the continent. We will be updating this post as additional signatories join the call.

See open letter [pdf]

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