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Created on Friday, 07 November 2008 23:18

Last Updated on Friday, 28 December 2012 18:38

Turn off WiFi to Prevent Abusive Download

Is turning off your PC sufficient to prevent abusive music downloads via a WLAN? The LG Frankfurt / Main (re 2-3 O 771/06) answered this question in its judgment of February 22, 2007.

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Daniel went on vacation and turned off all appliances and also his computer. However, he did not take out the plug from his WLAN appliance. Jack noticed this and starting using this access to the Internet to download illegal music. It came is it had to come, Jack was “caught” and Daniel was accused of infringing the copyright of the musicians because the IP-address of the downloader was from Daniel. Daniel tried to excuse himself that he was on vacation and therefore he could not have personally downloaded the music. Fact was nevertheless, the download happened via his DSL-line

Nevertheless, Daniel was held liable because he gave access to the Internet via an unsecured WLAN connection – his DSL-line. Just turning off the computer is everything but sufficient as a protective measure. It is the connection holder’s duty to make reasonable technical precautions to prevent illegal downloads using his DSL-line.

The court ruled Daniel to be liable even though he did not actively participate in the illegal download; it cannot be excluded that the unprotected WLAN access to the Internet can be used by other unknown persons. Daniel is liable for any damages following the rules of interferer’s liability. The general principle of such “interferer’s liability” is that whoever purposely and causally participates in the illegal infringement of a protected right – without personally being an offender, assistant, or instigator – can be held liable. Since such rule in its generality too wide, certain duties to limit liability are required. The scope of these duties will be determined on the basis of the facts in the individual case. Could the person to be held liable have reasonably taken measures to prevent the illegal incident?

Causal is a condition when the circumstance is generally possible and is a typical result of the normal course of events. It is no uncommon assumption, that an unprotected WLAN-connection can be misused by third persons to obtain access to the internet and illegally download files. Therefore, duties to check and act arise. The defendant was legally and practically able to take precautionary measures to prevent an illegal download via his connection. It is his duty to inform himself and learn how to prevent the infringement of third-party rights. Daniel should have used the technical possibilities to prevent the infringement in dispute. He should have changed the pre-installed standard password to a personal password. Possible would have also been to crypt the communication between the router and PC with a personal password. Making these measures was reasonable. In the case, Daniel would be a PC goof, the judges also considered the costs for professional assistance to be reasonable.




Published on the old CMS: 2007/8/28
Read on the old CMS till November 2008: 1.088 reads