The Bill, published last week, contains an outline of the
Government's plans to terminate internet connections that record
labels have said have been used for illegal file sharing.
A till-now unnoticed provision in the Bill could mean that it is
impossible to operate a wireless, or Wi-Fi, network without the
risk of breaking the new law, according to Edwards, who is
Professor of Internet Law at the University of Sheffield.
The Bill says that action can be taken not just against someone
suspected of infringing copyright but also against "a subscriber to
an internet access service [who] has allowed another person to
use the service, and that other person has infringed the owner’s
copyright by means of the service".
"A lot of people secure [their Wi-Fi networks] but a lot of
people don't," Edwards told technology law podcast OUT-LAW Radio.
"I think there is a strong likelihood that having unsecured Wi-Fi
might well be seen as allowing other people to use their service
which means that effectively you would become responsible for their
alleged copyright infringement."
Under the Bill it would be impossible to run a free Wi-Fi
network without the fear of being liable for strangers' copyright
infringements, she said.
"The answer to that is maybe [the connection owner] has to
secure his Wi-Fi," said Edwards. "But if that's so you are making
that the new law, and that points against other policy goals like
digital inclusion. You will make life very difficult not just for
individuals but for institutions that like to offer public Wi-Fi
like hotels and cafes."
"That may all have to be locked down so that people will avoid
copyright liability and that seems like a sad loss," she said.
A spokeswoman for the Department of Business, Innovation and
Skills (BIS) said that if people believed they had been unfairly
targeted they could appeal against a ruling, though the basis of
any appeal is unclear if the law states, as Edwards claims, that a
Wi-Fi operator is legally liable for others' actions.
BIS also appeared to suggest that the problem be solved by Wi-Fi
operators policing their networks. "Many premises that offer public
Wi-Fi access already disallow access to unlawful file-sharing
sites," said the BIS statement. "Software which limits or prevents
access is freely available and easy to install and we would
anticipate any responsible organisation offering Wi-Fi access would
take action if it appears their connection is being misused."
Edwards said that the Bill itself may break European law. The
E-Commerce Directive, which was made UK law as the E-Commerce
Regulations, give network providers immunity from liability for the
actions of their users while they are ignorant of those
actions.
"This legislation is potentially in breach of the E-Commerce
Directive, Articles 14 and 15 in particular, in which Europe has
said that hosts and service providers are not to be liable for the
acts of others who are the end users of their services," she said.
"I think it hasn't fully been thought through whether that might be
a competing principle."
"In the Wi-Fi example isn't that person, the Wi-Fi provider,
meant to be protected against the illegal acts of others over whom
he has no real effective control?" said Edwards.
The Directive also says that operators have no obligation to
monitor networks in the way suggested by BIS.
"Member States shall not impose a general obligation on
providers … to monitor the information which they transmit or
store, nor a general obligation actively to seek facts or
circumstances indicating illegal activity," says Article 15 of the
Directive.
The BIS spokeswoman said: "On the E-Commerce issue, we believe
our proposals are fully compliant with all EU regulations".
Mark Lomas writes:
The article mentions 'policing their networks'. This brings up
several questions:
- Why does the BIS believe that a public Wi-Fi service is exempt
from RIPA 2000 [especially 1(1)(b)]?
- If file sharers were to encrypt the data, perhaps using SSL or
a VPN, how can service providers (e.g. cafes) monitor activity on
their networks?
- If service providers were to prohibit encryption (see 2), this
would render public Wi-Fi useless for commercial purposes
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