European Court of Justice, Tobias Mc Fadden v Sony Music Entertainment Germany GmbH, Case C-484/14

Document type
Court Decision
(1) The ECJ had to consider the potential liability of Mr. Mc Fadden--running a business selling lighting and sound systems--for the use by a third party of the wireless local area network (WLAN) operated by Mc Fadden in order to make a phonogram produced by Sony Music available to the general public without authorisation. Mc Fadden operated his wireless LAN with anonymous access and free of charge in the vicinity of his business. Access was intentionally not protected in order to draw the attention of customers of near-by shops, of passers-by and of neighbours to his company. The referring court wanted to know whether the access provider exemption from liability might preclude from finding Mc Fadden liable, either directly or secondary.
(2) Against this factual background, the ECJ concluded that 

(a) making a network available to the general public free of charge constitutes an ‘information society service’ within the meaning of Article 12(1) of Directive 2000/31 where the activity is performed by the wiress LAN operator for the purposes of advertising the goods sold or services supplied by that service provider;

(b) open wireless operators are ‘mere conduits’ in the sense of Art 12 of Directive 2000/31; 

(c) the scope of exempted ‘liability’ under Art. 12(1) does not extend to precluding a rightholder from claiming injunctive relief against the continuation of the infringement and the payment of pre-trial and litigation costs from the wireless LAN operator where such claims are made for preventing the LAN operator from allowing the infringement to continue;

(d) the scope the access provider exemption in 12(1)--as limited by the carve-outs for injunctions permitted by Art 12(3)--does not preclude injunctions requiring a free-access wireless LAN operator to prevent third parties from making a copyright-protected work available from an online (peer-to-peer) exchange platform via an internet connection; 

(e) the wireless LAN operator may choose which technical measures to take in order to comply with the injunction, however the injuntion will not be precluded even if such a choice is limited to a single measure consisting in password-protecting the internet connection, provided that those users are required to reveal their identity in order to obtain the required password and may not therefore act anonymously.

Year
2016
Topic, claim, or defense
Copyright
Document type
Court Decision
Issuing entity
Transnational Court
Type of service provider
Internet Access Provider (Including Mobile)
OSP obligation considered
Block or Remove
Data Retention or Disclosure
Type of law
Civil
General effect on immunity
Mixed/Neutral/Unclear
General intermediary liability model
Takedown/Act Upon Court Order