More clarity needed after German WiFi copyright ruling: lawyers

German lawyers have told WIPR that more clarity is needed after the Federal Court of Justice (Bundesgerichtshof) ruled that WiFi operators are not liable for copyright infringement committed on their network.

However, copyright owners may still be able to seek blocking injunctions against WiFi providers.

In the past, establishments such as hostels and cafés faced the threat of cease-and-desist, cost reimbursement and damage claims if their WiFi connection was used by a guest to share illegal files.

However, in a decision dated Thursday, July 26, involving the illegal download of a zombie game called “Dead Island”, the Federal Court of Justice said that under the new German Telemedia Act, internet providers are not liable for copyright infringement via file sharing conducted by third parties.

Joseph Fesenmair, partner at Bird & Bird, told WIPR that private and public WiFi operators can benefit from the exemption.

According to Fesenmair, this is “bad news” for rights owners as private WiFi operators are no longer obliged to set up a password to avoid liability as an intermediary for third-party infringement.

However, he added that any WiFi operator may be obliged to install blocking measures in cases of misuse.

According to Jan Hassold, a lawyer at RDP Rechtsanwälte, “there is definitely room for further conflicts in front of the courts, because these obligations are completely unspecified and this fuels further uncertainties for WiFi operators”.

Hassold said that WiFi operators can still be held liable for playing a role in copyright infringement if they fail to fulfil blocking requests.

Max Kinkeldey and Mark Peters, lawyers at Grünecker, said that more clarity is required over what “adequate measures” WiFi operators need to employ to block access to illegal content.

“While the German legislator indicated that it considers technical measures such as the blocking of certain websites or router ports, or limiting the data volume as adequate, the Bundesgerichtshof’s approach appears to be more comprehensive,” they observed.

Hassold believes that WiFi operators will still have to fear legal consequences and, as a result, may not open their networks to the public.

“Finally, all WiFi operators, especially private persons, still have to face the dangers of warning letters by the copyright owners,” commented Hassold.

“Under German law, you need to at least present some evidence that you in person are not responsible for the copyright infringement via your network. Therefore, the common practice of warning letters and demand for a declaration of cease-and-desist will, in my opinion, not stop anytime soon.”