In many countries it’s accepted that whoever commits a crime or a civil tort in the file-sharing space is the person that should be held directly responsible for it.
For example, if someone shares the latest movie online without permission, that is the only person copyright holders should have an interest in for that particular offense. Certainly, innocent third parties should not be held liable.
In Germany, however, the position is more complex. Due to a concept known as Störerhaftung, a third party who played no intentional part in someone else’s infringements can be held liable for them. This type of liability has raised its head in many file-sharing cases where open WiFi owners have been considered liable for other people’s infringements.
Now, however, this stifling situation is probably in its dying days. According to a Spiegel report, Germany’s ruling coalition have agreed to abolish the so-called ‘interferer liability’.
This means that both private and small scale WiFi operators (such as café owners) will soon enjoy the same freedom from liability enjoyed by commercial operators.
No splash-pages or password locks will be required meaning that open WiFi hotspots will at last become as freely available in Germany as they are already in countries such as France and the UK.
Pressure had been mounting on the German government following a European Court of Justice opinion published in March which held that entities operating unsecured wireless networks should not be held liable for the copyright infringements of third parties.
The case involves Pirate Party member Tobias McFadden who received a claim from music company Sony who alleged that his open WiFi was used to offer an album without permission. Sony demanded that McFadden prevent future infringement by password protecting his network, blocking file-sharing ports, and logging/blocking users sharing copyrighted content. The Pirate objected to Sony’s claims of liability and the case went to the European Court of Justice.
The final judgment from the ECJ is not expected for a few months but in most cases early recommendations from experts are upheld by the ruling judge.
Should all go smoothly, the removal of the liability from German law has the potential to shake up the massive file-sharing settlement letter business. While those accused of infringement already have some means to fight back, the absence of third-party liability for connection owners could remove much of the pressure placed on them to settle, whether they were directly involved in an infringement or not.
According to reports the legislative amendments are set to be passed by Parliament next week and could be in place as early as this fall.
