A German court based in Munich referred a case to the EU Court of Justice and requested an opinion. The case concerned a dispute between the manager of a sound-system shop and SonyÂs German branch. In 2010 an incident occurred whereby music was illegally offered for downloading via the shopÂs Wi-Fi network. Subsequently the shop was accused of indirect liability in proceedings initiated against it by Sony. It was alleged that the unsecured Wi-Fi network provided by the shop owner was used to offer illegal music downloads.
The Luxembourg based EU Court of justice found that the shop owner may be considered a service provider under the EUÂs eCommerce, but the directive excludes such intermediaries providing conduit services to be held liable for acts committed by third parties over the network. Therefore a service provider cannot be held liable so long as he did not initiate the offending data transmission, select its recipients, or select/modify the information in that transmission. As such Sony cannot successfully sue the shop owner for copyright infringement and nor can compensation be claimed.
The court noted that Sony may obtain a court order for the shop owner to end or prevent the infringements this is a common procedure in legal actions brought by copyright holders against ISPs. Further the court found that an injunction ordering the Wi-Fi network to be protected by a password would be a reasonable measure in order to deter copyright infringers from using the Wi-Fi network. The reasoning behind this is that if users were forced to register their name and/or other personal details in order to gain access to the Wi-Fi network, doing so may serve as a deterrent.
The directive however, prohibits the network provider from being compelled to monitor any information that is sent over the Wi-Fi network. Nor is it acceptable to immediately proceed to disconnecting a user suspected of such infringements- before doing so, less restrictive measures need to be considered.