House party hijack? Finnish ruling may provide download loophole

A reconstruction of what the "pirate party" may have looked like
A key court ruling in Finland says open WiFi providers are not responsible if their connection is used by third parties to pirate copyrighted content. The decision protects innocent parties but will it also give pirates a get-out clause?

­Open WiFi, a wireless Internet connection that is not protected by passwords, has become a new ground for legal battles. As more and more cafes, public spaces and even trains offer it free to their customers, the question is who is responsible when these anonymous users then use the connection for illegal downloads.

And while the legal debate rages in the US, in Europe one Finnish case may prove decisive.

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Catching one pirate among big party: mission impossible

In 2010 anti-piracy body CIAPC sued a Finnish woman for using her WiFi connection to download copyrighted material, and threatened a €6,000 fine. But she defended herself, saying although it was her connection, she had open WiFi, and anyone could have logged in and used the line to illegally download content such as films, music or books.

As it happens, during the 12 minutes the offense took place, the woman was hosting a party for 100 people – all potential lawbreakers.

“The court thus examined whether the mere act of providing a WiFi connection not protected with a password can be deemed to constitute a copyright-infringing act,” says Ville Oksanen, the woman’s lawyer.

“The applicants were unable to provide any evidence that the connection-owner herself had been involved in the file-sharing.”

Thus, a Finnish District court has ruled against CIAPC.

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E-Consequences

In theory, this puts those who operate open WiFi networks in the same boat as normal Internet providers. They are, essentially, just offering a service to people and, more than that, a free service, but cannot be liable for who uses it and for what. After all, that is the whole point of open WiFi.

So far, so reasonable. But should open WiFi become a carte blanche for any form of piracy, as long as you cannot prove who was using it?

What makes the case particularly alarming is that the defendant was not providing a public service in a public place, but essentially enabled a crime to happen in her own home.

It potentially could create a situation when anyone who steals copyrighted content using an open Wi-Fi connection would get away with it by simply pointing out that it wasn’t them, but somebody else.

Even if it was a party of strangers in this particular case, was the owner not at least negligent in allowing piracy to take place?

The ruling is likely to have far-reaching consequences.

Firstly, the copyright protectors will now undoubtedly have to provide more specific incriminating evidence to show theft.

Secondly, the Finnish court rigorously scanned various EU directives on copyright to arrive at its decision, and it is not unlikely that the case will now be taken as a sign by other European countries of how to deal with the open WiFi problem. Finland’s neighbor Estonia, for example, has near-universal free WiFi access throughout its territory.

CIAPC is now considering whether to take its appeal to a European court. But another defeat there could knock a sizeable nail into the coffin of online copyright on the entire continent.