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Finnish ruling on illegal file-sharing over third party wi-fi may have effects across Europe

By | Published on Wednesday 16 May 2012


One of the more interesting questions raised by any anti-piracy three-strikes system, whereby internet service providers can be forced to send warning letters to suspected file-sharers of unlicensed content, and to then reduce the net connection of any such file-sharing customers who ignore the warnings (either to slower speeds or to full disconnection of service), is what happens if the customer claims the illegal content sharing was committed by a third party on their wi-fi network?

Is the owner of a wi-fi network liable for any copyright infringement that occurs via their net connection? Can liability be circumvented if the wi-fi network is password protected, but a third party hacks in somehow? And if so, does that mean any three-strikes legislation – such as that contained in the UK’s Digital Economy Act – implies into law an obligation on every ISP customer to password protect their wi-fi?

This question doesn’t actually come up quite as often as you might imagine – in either straightforward file-sharing litigation cases or the operations of active three-strikes systems – mainly because in most cases, when ISP customers are hit with legal or warning letters about file-sharing, they generally say “fair cop mate, I won’t do it again”. But occasionally the accused pleads ignorance of any file-sharing activity via their net connection, and assuming they are willing to maintain those claims at the witness stand, the question must be considered: is ‘someone else did it on my wi-fi’ an acceptable get out?

One previous case that considered this question in an albeit relatively junior German court decided that there was an obligation on ISP customers to put at least basic password protection on their wi-fi networks in order to circumvent any liability for copyright infringement then conducted on said net connection.

Which makes it easier to enforce three-strikes and more conventional file-sharing litigation, though many fear such a conclusion, as it arguably puts new liabilities onto the libraries, hotels, colleges and cafes which provide open wi-fi (or at least password protected wi-fi where the password is openly published). And such extra liabilities might make such institutions less likely to offer wi-fi as a matter of course, just as plentiful wireless internet hotspots are becoming the norm in many townsand cities.

The good news for those concerned about wi-fi liabilities is that a Finnish court has just ruled that there is no obligation to password protect wireless networks, and that the ‘someone else did it on my wi-fi’ defence is satisfactory in illegal file-sharing cases, even if the wi-fi network had no password protection, providing the evidence available gives that excuse some credibility.

In the Finnish case, reported on by Torrentfreak, the defendant was accused by anti-piracy group CIAPC of downloading unlicensed content in July 2010, but it was shown that that downloading occurred during a twelve minute window via the woman’s open wi-fi network while she had 100 guests at a party at her house.

The defendant’s lawyer told Torrentfreak: “The applicants were unable to provide any evidence that the connection-owner herself had been involved in the file-sharing, the court thus examined whether the mere act of providing a wi-fi connection not protected with a password can be deemed to constitute a copyright-infringing act”.

And, unlike its German counterpart, the Finnish court ruled on that question with a resolute “no”. In doing so Finnish judges considered a number of European Union directives on copyright, which means the ruling possibly has ramifications beyond Finland itself. Indeed, should CIAPC choose to appeal, lawyers for the accused say they might ultimately push to have the matter considered at the European Courts Of Justice. If the ECJ decided this was, indeed, a matter for European rather than national law, any such ruling could settle the ‘does the wi-fi excuse stand’ question across the Union.

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