On May 12, the German Federal Court of Justice (Bundesgerichtshof) pronounced judgment in a copyright case involving an unprotected WiFi connection. It held that the owner could be subject to an injunction – an order to cease and desist – but was not liable in damages. However, he would be liable to pay a maximum of 100 euros as compensation for the costs of a lawyer who had to send him a warning (Abmahnkosten).
The owner of the connection had been on holiday when, in breach of copyright, a third party downloaded via his WiFi connection a song which had been made available by a music company. The connection was not password-protected; the owner had left the default settings.
There is a good short summary of the case by Mark Schweizer on IPKAT today. The German American Law Journal reported on May 12. The full judgment is not yet available. The court’s May 12 press release is
here (in German).
This case has been widely misreported in English. The trouble seems to have started with an AP report which described the potential liability for a lawyer’s costs as a fine (AP report (in English):
German court orders wireless passwords for all
By KIRSTEN GRIESHABER (AP) – May 12, 2010
BERLIN — Germany’s top criminal court ruled Wednesday that Internet users need to secure their private wireless connections by password to prevent unauthorized people from using their Web access to illegally download data.
Internet users can be fined up to euro100 ($126) if a third party takes advantage of their unprotected WLAN connection to illegally download music or other files, the Karlsruhe-based court said in its verdict.
First of all, the BGH is not Germany’s top criminal court (IPKAT even refers to it as Germany’s Supreme Court). It has twelve civil and five criminal chambers. This decision was made by the First Civil Senate (chamber) in Karlsruhe.
Then, there is no fine, just a limited obligation to compensate a lawyer for costs.
The German American Law Journal blames the BBC for the problem (Amerika lacht über deutsches Recht).
Das BBC berichtete vom Urteil wie von einer Strafsache und ließ einen englischen Strafverteidiger kommentieren.
But the BBC article only appeared on May 14 and the lawyer it consulted was an intellectual property expert.
Let’s hope that when the full judgment appears, the English and American sources will correct their versions. See comments on this blog.
I think that is enough for now, except that I might return to the untranslatable term Störerhaftung that comes up in this case – I have a feeling I ‘translated’ it recently.