Open WiFi Owners Off the Hook In Germany 215
ulash writes "Ars Technica reports that a court in Germany ruled in favor of an open WiFi network owner stating that if other users use your open WiFi network without your consent and download copyrighted material, you cannot be automatically held responsible for their actions. This does not carry much (if any) weight in the US but here is to hoping that it will at least have a positive impact in the EU as starters."
Re:You forgot to add (Score:2, Informative)
Actually I can't seem to find anything in the original article that supports the "fact" you have pointed out. It clearly says:
The defendant argued that he wasn't guilty of copyright infringement, but that he had operated an open wireless network and that someone else may have connected to it in order to use P2P. The prosecution responded by saying that open WiFi networks are easily abused, and that it's the owner's responsibility to ensure that the network is locked down and encrypted.
The defendant never claims that he didn't know his wifi could be used by someone else. In fact he was found innocent because there was nothing showing that he himself broke the law:
The court said that the "abstract risk of abuse" of the defendant's connection is not enough to require him by law to lock it down. There was also no concrete evidence of copyright infringement on the defendant's part, therefore he should not be held liable for damages, the judge said.
Now of course by offering people LAN access for free you would probably breaching your contract with your ISP but this is a seperate issue. I think you are mixing up the two.
Re:Precedent (Score:3, Informative)
A moderately important one.
The court in question, a "Oberlandesgericht" is the second highest instance for non-constitutional cases in Germany, and the highest for its federal state (Hessen).
As far as I can tell from the layman's perspective, verdicts at that level tend to be taken into account by other courts, and while case law does not have the same importance as in the US, this precedent will have some influence.
Re:Negligence is not a defense (Score:3, Informative)
You miss the point completely. They called it an "abstract risk of abuse" and that it didn't require him by law to lock down the network.
So the pretty much said it wasn't negligence (which is pretty much common sense, if you look up the definition)
Not a precedence in germany either (Score:1, Informative)
The current law in germany is quite unstable from court to court regarding internet crimes and i donÂt think it can be a precedent for any case where an open wifi was used in a crime. At least i appreciate the fact that a court realizes that an IP is only a help in identifying the network, not the person.
In this case (iÂve read the original german text : http://www.olg-frankfurt.justiz.hessen.de/irj/OLG_Frankfurt_am_Main_Internet?rid=HMdJ_15/OLG_Frankfurt_am_Main_Internet/sub/dbd/dbd30488-fac8-ea11-f3ef-ef97ccf4e69f,,,11111111-2222-3333-4444-100000005003%26overview=true.htm ) the network owner was on vacation during the upload and he could exclude that his PC was used by others. So it could only be a user of the open WiFi. Interjection of the plaintiff that media coverage of abused WiFis would lead to the duty to secure the defendants WiFi was first accepted (he is be responsible what others are doing with his network, although it can not proved he did the crime) but rejected in the appeal.
The appeal court denied because he can not be responsible for every other persons illegal actions, although he would have the duty to e.g. prevent his (minor?) children from buying stuff over the net using his computer.
Re:Nice loophole (Score:2, Informative)
So if I borrow your ladder, use it to get into someone's house, you should be held partly accountable. Don't be silly.
Actually yeah, if you borrow something from me and use it to break the law I do share responsability in the eye of the law in most countries. If you take something from me without my approval, on the other hand...
Re:You forgot to add (Score:2, Informative)
FON network router: It depends on what you are calling the "public" and "private" networks in this case, AFAIK.
FWIR (from what I read), the FON network is semi-public, public to you as you don't know who's using it, private to the FON network, as only participants get to use it, with FON effectively standing in the role of ISP, taking responsibility for what travels over their network, banning abusive users, etc.
Thus, if you're calling the FON side "public", you /should/ be able to simply point to FON and have them deal with it (altho I'm unaware how much responsibility they actually take in practice, or of any actual legal decisions ruling one way or the other, thus the italicized /should/). If you have a fully unrestricted public access network, then the previous reply, that bandwidth capping is evidence that you knew it was there and that makes you /more/ liable, is most likely (IANAL, etc) correct.
Of course, with a FON network router, the entire purpose of the network being to share, if it /does/ come down to your responsibility, it's going to be pretty hard to argue you didn't know it was happening.
Re:Hmmm... (Score:1, Informative)
"- just like if someone else is driving your car and gets caught in a speed trap. If he doesn't admit, you will have to pay the ticket."
In the U.S. we have the right to be 'confronted by the accuser...' Cameras do not appear in court - the precedent was established in the 1960's - get an attorney.