A pub owner has been fined £8,000 because someone unlawfully downloaded copyrighted material over their open Wi-Fi hotspot, according to the managing director of hotspot provider The Cloud.
Graham Cove told ZDNet UK on Friday he believes the case to be the first of its kind in the UK. However, he would not identify the pub concerned, because its owner — a pubco that is a client of The Cloud's — had not yet given their permission for the case to be publicised.
Cove would say only that the fine had been levied in a civil case, brought about by a rights holder, "sometime this summer". The Cloud's pubco clients include Fullers, Greene King, Marsdens, Scottish & Newcastle, Mitchell & Butlers and Punch Taverns.
The law surrounding open Wi-Fi networks and the liability of those running them is a grey area.
According to internet law professor Lilian Edwards, of Sheffield Law School, where a business operates an open Wi-Fi spot to give customers or visitors internet access, they would be "not be responsible in theory" for users' unlawful downloads, under "existing substantive copyright law".
She also said the measures that would be brought in under the Digital Economy Bill — measures that could include disconnection of the account holder — would not apply because the business could be classified as a public communications service provider, which would make it exempt. According to the terms of the bill, only "subscribers" can be targeted with sanctions.
According to legal advice sent to The Cloud by the law firm Faegre & Benson on 17 August, "Wi-Fi hotspots in public and enterprise environments providing access to the internet to members of the public, free or paid, are public communications services".
A public communications service provider must, under the terms of the Data Retention Regulations that came into force in the UK in April of this year, retain records for 12 months on communications that have taken place over their network. This data includes user IDs, the times and dates of access, and the online destinations that were being accessed. The content of the communications cannot be retained without the user's permission, due to data-protection laws.
However, there is a get-out clause in the Data Retention Regulations, in that no public communications service provider has to keep such records unless they are notified by the government that they are required to do so.
According to Edwards, this is because "only the big six ISPs have the facilities to comply, and because the government agreed [in its legislation] to repay some of the costs [of retaining such records]". She noted that this clause might itself be non-compliant with the EU data-retention laws that were transposed into UK law in April.
Edwards pointed out that, even if the sanctions proposed in the Digital Economy Bill come into force, "no-one will know who [the downloader] was, because the IP address that will show up [upon investigation] will be of the hotspot". She added that the rights holder seeking infringers of their copyright would probably not know that the IP address in question was not that of a subscriber.
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," Edwards said.
Update: In an earlier version of this story, Professor Lilian Edwards was erroneously quoted as saying that businesses would "be responsible in theory" for users' unlawful downloads, under "existing substantive copyright law". She actually told ZDNet UK that businesses would not be responsible in theory, and we have amended the story accordingly.
Talkback
Consecutively vote monkeys into power, we never learn.
victims of hit & run accidents can now sue the highways agency for compensation
To get a human and objective view of this situation, I find it useful to take a step back and look at the overall concepts rather than pour over the details of copyright or whatever.
We have some guy using a publicly available mechanism to steal something. The maker of the mechanism is OK but the company who bought/leased it are fined, whereas the thief is nowhere to be seen.
Now transfer that concept to something else. If a house burglar gets on a bus made by Scania and operated by First Bus Transport, then breaks into a house to nick a TV, then uses the same bus later to get the TV back to his own house, should First Bus Transport be fined for the burglary?
It is getting sillier by the day taking siarad's comments further where does responsibility end? presumably the Computer Supplier, Manufacturer and Software suppliers are also liable as are their suppliers and so on after all if the computer hadn't been available then the crime could not have taken place. Furthermore if Sir Tim berners Lee hadn't 'invented' the Internet then cybercrime wouldn't exist so ultimately it must be his fault that the crime took place.
the "media mafia" is trying their dirty tricks again.
They would really like all states to be fascist in nature, then they could have their way all the time.
Time seems to be overdue to make some restrictions on copyrights.
These rights are privileges granted by society and can of cause be corrected by society.
The way they abuse their privileges is not what was intended with copyright laws, when they were first made.
These laws were intended to protect the creators from unscrupulous publishers, NOT the general public.
Being worried over this I contacted BT FON & the relevant part of the reply is:
[quote]Please note BT FON complies with regulation because we do tunnel the traffic.[/quote]
I run a Fonero router at home (not BT Fon), and if I connect to that as a Fon user, packets come from exactly the same IP address as if I connect to my home router as myself. There's no tunnelling, and as far as I can tell any Fon user appears on the other side of the NAT on my WAN interface exactly as any other local user on my LAN.
So I'm not sure what BT means by 'tunnelling' here. Perhaps I should find out!
So they are potentially going after anyone who provides access to the net; wireless or not, paid for or not.
This has much wider implications than shutting down wifi hotspots.
They are trying to get firm case law that says 'if you provide access to the internet you are liable for the uses that that access is put to"
Having failed to crush the telco's resistence they're now going after the non-ISPs pubs, coffee shops, my local gym. Organisations who won't spend millions defending their right to offer a 'fun' service. Then when they have the 'point of law' proven they will go after the ISPs
This is extremely worrying and dangerous move. Sadly the man in the street isn;t IT savy enough to protest and the governments are increasingly in the thrall of these copyright crazies lawyers!!