Higher Regional Courtroom Of Düsseldorf Applies Cjeu Mc Fadden Decision

1709 Blog readers volition scream back that concluding September the Court of Justice of the European Union (CJEU) issued its determination inward the important Mc Fadden case [here and here], a reference for a preliminary ruling from Germany.

The CJEU ruled that the provider of a password-free, gratuitous WiFi tin live on requested to conduct keep his internet connectedness secured past times agency of a password. 

Via 1709 Blog friend Mirko Brüß (Waldorf Frommer Rechtsanwälte) comes the intelligence that a High German courtroom (though non the 1 that had made the Mc Fadden reference) has lately applied the CJEU judgment, as well as the principles set downwardly therein [Mirko also wishes to allow readers know that a novel reference on the correct of communication to Blue Planet as well as filesharing was made past times the Regional Court of Munich on 17 March concluding (Case No. 21 due south 24454/14): details are non soundless available on the Curia website, but equally shortly equally they are this spider web log volition supply relevant information].

Here’s what Mirko writes:

In a judgment on sixteen March 2017 the Higher Regional Court of Düsseldorf requested the operator of an opened upwards WiFi (and a TOR croak node) to accept activeness against repeated copyright infringements past times users of his IP-addresses (case no. I-20 U 17/16). 

This appears to live on the showtime fourth dimension a High German courtroom has dealt alongside such a instance later the CJEU handed downwardly its Mc Fadden decision on fifteen September 2016 ... At least, this is the showtime publicly available decision. 

The ruling of the courtroom does conduct keep broad implications for the operators of opened upwards WiFi networks, so-called hotspots.

Tobias McFadden

Factual background

The accused was an operator of 5 so-called hotspots, ie access points that tin live on used past times anybody to log into the mesh using the defendant‘s mesh connection. It remained disputed betwixt the parties whether the accused operated his network commercially or privately, as well as whether or how users needed to register themselves to live on able to utilization the network. The accused claimed that users were asked to refrain from ‘illegal activities’, but did non explicitly enquire users to refrain from sharing copyright-protected textile via peer-to-peer networks. The accused also operated a ‘TOR exit-node’ on his IP-address, thus enabling anonymous users to access the mesh via his IP address (see this infographic on full general TOR functionality).

The claimant is the possessor of copyright inward a calculator game. He had noticed the defendant’s IP-address on several occasions equally beingness the root of an infringing download offering of other industrial plant via a BitTorrent network. After obtaining cognition of the defendant‘s scream as well as address via the courtroom proceedings provided for such cases inward Federal Republic of Federal Republic of Germany (§ 101 Abs. 2, nine Urheberrechtsgesetz, = UrhG, High German copyright code), the claimant sent several cease-and-desist letters to the accused inward 2011, asking him to halt the infringing activities.

However, farther infringements were constitute inward 2013, fifty-fifty later the cease-and-desist letters were served to the defendant. At this point, the claimant took matters to court, as well as obtained a judgment of the District Court of Düsseldorf, that enjoined the accused from aiding 3rd parties to brand available to Blue Planet the claimant’s game via peer-to-peer networks as well as via his ain IP-addresses. The courtroom also ordered the accused to pay the claimant's out-of-court costs for EUR 651,80 (judgment on thirteen January, 2016, instance no. 12 O 101/15).

The accused appealed the decision. He claimed that unknown users of his network were the culprits, as well as he had no way to position them as well as no obligation to halt their activities.

View of Düsseldorf

The Higher Regional Court‘s decision

The Higher Regional courtroom of Düsseldorf rejected the appeal as well as upheld the showtime decision. While the Regional Court’s judgment was issued before the CJEU decided Mc Fadden, the Higher Regional Court had cognition of this determination as well as applied it to the case.

In as well as so doing, the courtroom constitute that it did non thing whether the accused operated the hotspots commercially or privately. Furthermore, it did non thing to the courtroom whether the copyright infringements were committed past times users of the Hotspots or users of the TOR exit-node.

In all scenarios, the accused was liable for the infringements as well as was requested to accept reasonable measures to preclude farther infringements. To justify this, the courtroom cited Mc Fadden, specially paras lxxx – 96. The judges constitute that, because of the before infringements, the operator should conduct keep taken reasonable measures to ensure that his users would non proceed to infringe third-party copyrights. With regards to the WiFi network, the courtroom sided alongside the CJEU as well as ruled that password-protecting the mesh connectedness may dissuade the users of that connectedness from infringing copyright, provided that such users are required to discover their identity inward lodge to obtain the required password as well as may non thus deed anonymously. If this could conduct keep been asked of the accused irrespective of before infringements was left undecided past times the court.

With regards to the TOR exit-node beingness the possible root of the infringements, the courtroom constitute that the accused could conduct keep as well as should conduct keep taken measures against copyright infringements past times disabling peer-to-peer communication via the TOR network. It remained undisputed betwixt the parties whether this is technically possible, as well as so the courtroom took such a mensurate for granted.”