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Free Wi-Fi dilemma: Should public hotspots have to block file-sharing sites?

Although they're no longer likely to be sued for a customer's unlawful activity on a public Wi-Fi hotspot, German shops and cafés face a new problem.
Written by David Meyer, Contributor
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Will new laws encourage more German cafes to offer Wi-Fi?

Image: Marek SLUSARCZYK, Getty Images

The German government wants to make it less risky for shops and cafés to open up their Wi-Fi hotspots to the public, through a new amendment to recently-adopted legislation.

The change, which would exempt hotspot operators from court costs associated with copyright violations on their networks, is partly a response to a September ruling by the European Union's top court.

However, tech industry representatives are unhappy with the government's suggestion that hotspot operators should be prepared to block people from visiting certain websites.

Germany is a notorious laggard when it comes to the deployment of free Wi-Fi. The government has been trying for a long time to encourage the spread of open access, but it keeps coming up against the issue of copyright and liability: if someone uses an open hotspot to unlawfully download or share copyrighted content, should the person running the hotspot be punished?

A breakthrough arrived in May last year, when the partners in the ruling coalition finally agreed to remove hotspot operators' liability for their customers' actions. They passed a new law in July, although critics said it was not explicit enough in giving hotspot operators legal certainty about their position.

Then, in September, the Court of Justice of the European Union issued a crucial ruling in a case involving a German shop-owner who had been sued by Sony Music over a customer's activity on his network.

The court ruled that Sony was not entitled to compensation from the shop-owner. However, against the advice of its top legal adviser, the EU's top court also said rights-holders could apply for injunctions forcing hotspot operators to password-protect their networks and ask users to identify themselves to get the password, so as to prevent repeat violations.

This ruling raised the prospect of hotspot operators having to pay legal costs even if they themselves aren't liable for their customers' file-sharing.

As first reported on Monday in Der Spiegel and Rheinische Post, the German economy ministry now wants to ensure that hotspot operators won't have to pay any court costs when rights-holders identify copyright violations on their networks.

In a draft report, the ministry also recommends that authorities should not force hotspot owners to put passwords on their access points. Instead, the report suggests, the hotspot operators may be required to block access to particular websites.

"Our goal now is to make it easier for [hotspot operators] to offer Wi-Fi, so that they no longer fear ending up having to pay for court and lawyers' fees," said Korbinian Wagner, a spokesman for the Bundesministerium für Wirtschaft und Energie (BMWi).

"In our current law there is some uncertainty about how the [Court of Justice of the European Union] ruling shall apply, and we want to make sure the providers of public Wi-Fi cannot be forced to ask people to identify themselves before they use it, or to use password," Wagner told ZDNet.

The government hopes to get the amendment through during the current legislative term. Germany has federal elections coming up in September, he added.

However, the government's alternative is not proving popular with Bitkom, the trade association for German tech companies.

"Internet access providers and hotspot operators would have to build up an extensive infrastructure to block certain websites," complained Bitkom intellectual property chief Judith Steinbrecher.

Steinbrecher, who said site-blocking should remain a last resort in internet policy, said losses suffered by copyright-holders do not justify "such restrictions of the civil liberties of internet users".

"Instead, legal business models to access films, videos and music should be promoted and financial incentives should be reduced for illegal providers," she said.

"It's also necessary to strengthen international cooperation between the investigating authorities, because the business location of many illegal providers is abroad."

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