Owners of wireless internet connections are vulnerable to a
number of dangers if they do not exercise adequate security
precautions. A recent decision from the German courts has
highlighted one potential risk of which New Zealand wireless owners
should be mindful: copyright infringement.
Wireless internet connections, popularly known as WiFi(tm)
connections, enable mobile devices such as laptops to connect to
the internet via a wireless link. The wireless link is conveyed
through a wireless router. Most wireless internet connections
conform to the IEEE 802.11 set of standards for carrying out
Wireless Local Area Network (WLAN) communication.
A wireless connection can be protected to prevent it being used
by unauthorised persons. For example, the connection can be
encrypted such that only people with a password can use it. If a
connection is left unprotected, anyone with a suitable mobile
device within range of the signal can use it to access the
In the recent German case, a home wireless connection of person
A was not secured. Another person (B) was able to use the
connection to access the internet and proceeded to download a piece
of music that was subject to copyright protection. A could prove
that he was on holiday when the download occurred so could not have
been the person downloading. The owner of the copyright in the
piece of music (C) sued for copyright infringement and requested an
injunction and financial damages.
The case was referred to the German Supreme Court after one
lower court considered the matter and ruled that A had to pay
damages to C, and a second lower court reversed this decision.
The German Supreme Court ruled that A should face an injunction
(i.e. restraining further infringement) but was not liable to C for
any financial damages because he did not personally commit the act
that infringed the rights of C. Furthermore, the Court said that
because there was no intent on A's part, he was not adjudged to
be contributing to the infringement.
Nevertheless, A was required to take reasonable measures to
prevent the connection being used by third parties. Because he had
not done so, for example by password protecting the connection, he
had to pay a portion of C's legal costs.
While this is a German case and does not serve as a precedent in
New Zealand, it should serve as a warning to anyone owning a
wireless connection. Most people are probably aware that leaving a
wireless connection unprotected exposes the owner to the danger of
others accessing personal and sensitive information. Also, it
allows others to use the internet connection paid for by the owner
for free, perhaps using up a large amount of the owner's
monthly download allowance. Now we can also add the risks of
copyright infringement to the list of risks associated with
unprotected wireless connections.
As a safeguard, all owners of wireless connections are advised
to take reasonable precautions in securing access to their
connection. The easiest way of doing so is generally by using the
password protection option available with most routers.
The warning should also be heeded by anyone who wants to extend
use of a wireless connection to others. Many businesses (for
example hotels, caf,s and libraries) offer wireless internet
connections to customers. To avoid any potential liability for
copyright infringement, they should ensure all users are obliged to
internet connection is not liable for any such infringing acts.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
James and Wells is the 2009 New Zealand Law Awards winner of
the Intellectual Property Law Award for excellence in client
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