A pub in the UK has been fined ₤8,000 for illegal downloading, when really all it did was provide the internet access to a third party user responsible for the illegal activity. The pub is a wireless hotspot offering Wi-Fi connections to its customers, one of whom downloaded copyrighted material while using the Wi-Fi service. Unfortunately, however, the activity can only be traced back to the IP address of the hotspot, and so investigation of the illegal activity does not produce the individual infringer. This case is believed to be the first in the UK in which a wireless hotspot has been successfully sued for an infringement occurring on its network, and becomes significant in what similar rulings and fines—which amount to $13,000—would do to the internet café type business model. It is impossible for such providing companies to monitor what users on their network are doing, and so the applicability of such fines becomes a risk perhaps too great to take.
The risk is compounded by the imminent Digital Economy Bill in the UK which has yet to pass but would enforce a 3-strike rule where repeat infringers would be cut off from internet service. While the 3-strike rule likely would not apply to internet hotspot providers as they are not individual subscribers, the potential to be held responsible for customers’ infringements and denied internet access is daunting to the business plan. Making matters worse, “the rights holder seeking infringers of their copyright would probably not know that the IP address in question was not that of a subscriber,” notes UK law professor Lilian Edwards, “It would then be up to the hotspot operator to point out that they were not the end user downloading copyrighted material,” but “when would they get to say that? Maybe straightaway, maybe not until after disconnection—it’s not currently clear.”
Essentially, while the hotspot would “not be responsible in theory,” the laws and proceedings “surrounding open Wi-Fi networks and the liability of those running them is a grey area.” Even if the hotspot would not be targetable by the 3-strike rule as only subscribers can be sanctioned, it remains unclear whether the fine for copyright infringement would be waved as well. Do you think the hotspot should be responsible for users’ infringements? If they were not responsible, and infringers were individually untraceable, would this lead to increased infringements on hotspot connections where rights holders would be powerless to fight back? If they are held responsible, will this risk mean the end of internet cafés, and apparently internet pubs?
Drinking and Downloading, an Infringing Combination
November 30th, 2009 by ebm16 Leave a reply »
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Wow, great post!
I guess I had never considered the repercussions that would be had on internet cafes/bars when their patrons use their IP address to commit illegal or infringing activity. Perhaps the bar can argue that somewhere, somehow by using their internet connection, patrons have agreed to conduct legal activity? Though, without actually clicking “I acknowledge” or typing in a password which leads patrons to a terms of use page, I’m not sure how much the cafes can argue that.
While I offer no solution to remedy this, I do not think the internet cafes/pubs should be held responsible for the activity of its patrons. At the same time, though, someone must be held responsible, and it seems the only way that can happen is by holding the IP address owners responsible. Perhaps cafes can implement some sort of register which requires patrons to manually sign in to various IP addresses. For instance, I, Elizabeth Shelby, sign in to IP Address #1 at Starbucks, and you would sign in to IP Address #2. That way, there’s some sort of log as to who used which IP address, and MAYBE infringers can be tracked that way. Still, within the course of a day, hundreds of people could have signed in to IP Address #1, not really narrowing down the search for the infringer any more. Also, this would only work if Starbucks had a number of IP addresses which matched the number of patrons using their internet, which would be not only expensive but near impossible.