The news comes as British law firm Davenport Lyons says that it
is sending out more notices of action over alleged file-sharing of
computer games.
Many home internet users now operate wireless networks which
distribute their internet signal around the house. If these are not
secured then others can use those signals and the internet service
provider cannot tell whether use is by the owner of the network or
a third party.
Some people are unaware that their networks should be secure,
while others leave theirs open as a matter of policy to let other
people have access to their unused broadband capacity.
Frankfurt's Higher Regional Court has now ruled that the owner
of a network is not responsible for the actions of third parties on
it. A musician had sued a user because their Internet Protocol (IP)
address showed up as one which was involved in file-sharing of
their work without permission.
The network owner argued that it was someone else who had
undertaken that activity, but the court agreed with the musician
that open networks are liable to be abused and that it should have
been protected, and the network owner should prove that it was
someone else who shared the files.
The Higher Regional Court heard the man's appeal and said that
he was not liable. The court said that everybody was responsible
for their own behaviour, and that the defendant could not be held
responsible for a stranger's behaviour.
The ruling reflects the approach that would be expected in a UK
court, according to Struan Robertson, a technology lawyer with
Pinsent Masons, the law firm behind OUT-LAW.COM.
"The onus is on the party bringing the action to convince the
court on a balance of probabilities that the person being sued is
responsible for the infringement," he said. "The legal wrong isn't
that you left your network open, it's the file-sharing."
But Robertson cautioned against opening wireless networks to
anyone in the neighbourhood.
"The trouble is, if you use the Wi-Fi defence, absent any
computer evidence to back either party's case, the judge might
simply think that you're lying. That's one reason why you're asking
for trouble by leaving your Wi-Fi network open to the world.
"With criminal content, though, the stakes are even higher.
Nobody wants to be in the position of having to argue that they did
not download illegal images or did not hack into a bank's systems,"
said Robertson.
In the US in 2006 Tammie Marson successfully argued in a
file-sharing case that her open wireless network meant that anyone
in her vicinity could have been responsible for downloading files
using her IP address. Her case was dropped.
A UK law firm has said this week that it will step up its legal
activity on behalf of game company Topware Interactive over
allegations that its game Dream Pinball 3D has been illegally
shared online.
Davenport Lyons said that it would send letters to 100 more
people alleging that they have uploaded copyright material for
others to download. Earlier this year it sent letters to others it
accused of file-sharing involvement asking them to pay £600 or face
court action.
Last month action was successfully taken against four of those
people in the Central London County Court. Default judgments were
registered in court when the four lodged no defence and did not
turn up to court. Those users were fined £750 and ordered to pay
£2,000 in costs.
Some people accused of file-sharing argue that the activity has
taken place on a shared family computer, and that it is not
necessarily the broadband bill payer that has downloaded or shared
material. Children of bill payers can often be behind the
activity.
Both Scots law and English law provide that a parent generally
is not liable for the actions of their child, and that a civil
judgment is as binding on a child as it is on an adult.
There are, though, some circumstances in which a parent can
become responsible for the child's actions. That can happen when a
child causes injury to others or where a parent has previously
authorised or subsequently ratified the child's unlawful act.
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