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Created on Sunday, 25 July 2010 11:05

Last Updated on Friday, 28 December 2012 18:38

Wi-Fi Liability - Precendence of Federal Court of Justice

1. Wi-Fi Responsibilty

The Wi-Fi precedence of the BGH made a big splash when publicized. While the press release left many questions open on the applicability of the judgment, the now published, full judgment (i.e. with the reasoning) answers these questions. It is all about damages or infringements related to your Wi-Fi - your unsecured Wi-Fi.

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File sharing of a Music File

In the case of BGH of May 12, 2010 (re I ZR 121/08), it was about the owner of the song "Summer of our Lives" which was offered to be downloaded on a P2P (Peer to Peer) website through "eMule". The owner of the Wi-Fi was on vacation. Nobody had access to his office's room during his vacation. However, the router was still switched on. The owner of the music discovered via the IP address and a right of disclosure from the telecommunications company the owner of the internet line (Freddy). This company demanded from Freddy damages and to cease and forbear (§§19a, 97 UrhG).

However, it could be Freddy that was pretty lucky in that he could prove that he was, at that time of the download, out on vacation. Beyond that there was also no evidence that his computer was connected with the internet. When this were not the case, Freddy would have granted public access (§19a UrhG) because the PC was running and connected to the internet and had the appropriate software installed. This is normally difficult to prove.

When the copyright owner can show that a protected work was made public, the assumption speaks against Freddy. He violated copyright. When Freddy wanted to show his innocence, he had to prove that somebody else committed the violation. He will have to explain - and not just blindly allege - that somebody else has committed the violation. The very minimum will be that he explains all that he knows. Freddy was able to prove in court that he personally did not infringe the copyright. Practically seen, this is a reversal of the burden of proof. The owner of the line has to prove his innocence.

eBay-Liability is not Transferable, Third Person Access

Further the judges held, that the case law to eBay membership accounts cannot be applied mutatis mutandis to copyright cases. The rules on unfair competition cannot be used in cases of file-sharing. Especially the rules on liability for login data to online accounts are not comparable to unsecured Wi-Fi because business interests dominate on trading platforms. In contrast to online accounts Wi-Fi is not related to one single person exclusively. The IP-address, or internet address, of any certain computer when in the Internet is mainly dynamic. That is it changes every time you login in anew. Therefore, an IP-address cannot have the conclusive force for identity as a member's account. An IP-address is no identification.

Offender, Participant, Disturber of Public Order

In the lack of intention, the court denied any offense or participation of Freddy as the owner of the Wi-Fi line. Had Freddy committed a tort, he would have been fully liable for misuse of his Wi-Fi. This can become very expensive in the case of copyright infringement because of the so called "lost profit". However, the judges affirmed only the so called "a liability for disturbance of the peace". This liability is not for damages but for ceasing and forebearing the possibility of infringements. Freddy did not secure his Wi-Fi gadget enough. He had left his Wi-Fi with the standard configuration and did not use a secure password.

Security When Using Wi-Fi

Considering the security measures when using Wi-Fi, the BGH showed its Salomonic aptness. According to its opinion it is not reasonable for a private person to keep his router and its software always up to the current state of technology and constantly implement costly investments to prevent unwanted access of third persons. However, and as a minimum, Freddy has to implement such security measures that are available at the time of purchase. Absolutely rudimentary is to use a safe password especially as this does not cost anything. Further will be the use of malware scanners, firewalls. Many of these protection programs are also for free - though only basic in their provided safety.

2. Petty Limits for Admonishments

So far to the right to demand cease and forebearance against users of Wi-Fi. The judge's set off a storm relating to the costs of admonishment. In Freddy's case, the opposing lawyer demanded € 10,000 in fees. The judge dismissed this part of the case and sent it back to the lower court for more clarification. It did not decide on this detail because the Federal Court of Justice only supervises previous decisions on legal merits. However, the Federal Judges did give the lower court, OLG Munich, some clear hints when they emphasized that only one song has been downloaded only once. In other words, € 10k is by all means unreasonable.

Hint: Pursuant to current law, §97a II UrhG limits the costs of admonishments. However, this was not in effect at time of Freddy's case.

Petty Cases limited to € 100

Careful! §97a II UrhG limits the admonishment costs to € 100 only in cases of petty infringements! Understand "petty infringment" as a simple case only outside of any and all business transactions. In as far as it is the first file-sharing of only one music file in the realms of a private person, you can imagine this as a petty case. This current judgment in Freddy's case already gives a clear hint in this direction. Consider downloading a whole music album or a movie, this will not typically be considered as a petty matter anymore.

Not flatly transferable

Even tough some clarification has been brought, many questions remain unanswered. This legal meriting cannot be considered with other cases, like when the owner of the internet line is at home or the liability for downloading in a LAN network. It says nothing about the cases, when children download something on the family PC. Case law is pretty diverse in these and similar questions and sometimes it only depends on the allegations proved.

Possibilities of Defense

Even in spite of this judgment of the BGH, it remains to be expected that the number of admonishments will not significantly decline. Whoever becomes admonished, ought to get competent legal assistance and consultation. It often occurs that the declaration of cease and forebear is unfairly worded. The rights owner often cannot prove their exact damages. Claims for damages and legal fees might be exaggerated. All this depends on the circumstances of the individual case. And even when you really infringed copyright, a competent lawyer can possibly negotiate down the costs.

This precedence has been dubbed the Wi-Fi judgment of the Federal Court of Justice.