Thursday, 20 May 2010
An interesting case has been decided by the German BGH on 12 May 2010. A private individual left his home WiFi router unsecured (on factory default settings). Someone downloaded a copyright protected piece of music using the unsecured WiFi spot. The owner could show that he was, at the time of the download, on vacation and could therefore not have been the one downloading. The owner of the copyright in the song sued for copyright infringement, asking for an injunction and financial damages.
The first instance court both issued an injunction and found the owner of the WiFi spot liable to pay damages. The second instance court reversed and dismissed the claim of the copyright holder.
The German Supreme Court (BGH) distinguished between the injunction and the financial damages: the owner of the WiFi spot could be enjoined, but was not liable for financial damages. He was not required to use the latest, state of the art security technology to secure his WiFi router, but at the time of the installation common precautions against the use of the WiFi spot by unknown third parties had to be taken (this means using the WEP encryption option, I guess). The defendant could be forced to take the necessary precautions and has to bear the legal costs for the lawyer's letter by the copyright owner (Abmahnkosten). He was a "Störer", but not a "Täter", i.e. not personally committing the infringement. He also was not an abetter to copyright infringement, because he lacked the necessary intent to support the infringement. Therefore, he could not be held liable for financial damages.