Last Wednesday, IP Kat had reported about an interesting opinion given by the Advocate General Szpunar in the case of Tobias Mc Fadden v Sony Music Entertainment Germany GmbH, C-484/14 which states that the Operator of a shop, hotel or bar who offers a password free Wi-Fi network are not liable for copyright infringement committed by users of that network.
In the instant case Tobias Mc Fadden operated a business of lights and sound systems near Munich that provides a free Wi-Fi network to all customers who visits his office premises. In 2010, Sony filed a petition before the Regional Court, Munich claiming indirect infringement against Mc Fadden alleging that certain copyrighted works were illegally downloaded using the said free network. This case was later referred to the Court of Justice of European Union seeking clarification regarding the liability of internet service providers for third party copyright infringements.
In the instant opinion submitted before the CJEU, the AG had taken a stand that the safe harbour provisions provided in Article 12 of the eCommerce Directive (Directive 2000/31/EC) also applies to any person who, adjunct to his principal economic activity operates a Wi-Fi network with an internet connection that is accessible to public free of charge. In his opinion it would not be necessary for the person to present himself to the public as a service provider.
AG further opined that the safe harbour provisions even prevent the courts from making orders against such intermediaries for payment of damages and even the costs for giving formal notices. The AG felt that any restriction on access to such lawful communications as a step to protect the interests of the copyright holders would result in restriction on freedom of expression.
Since the opinion of an Advocate General is not binding on the Parties and the role of Advocate General is to assist the court in reaching an appropriate conclusion, it would be interesting to follow further action taken by the CJEU in this case.
Authored by Nithin V. Kumar.