A week and a half ago, we reported that a pub landlord somewhere in the UK had, sometime this summer, been fined £8k because someone had downloaded copyrighted content over their open Wi-Fi network.
As we made clear at the time, the story was based entirely on an interview with the managing director of The Cloud, a provider of Wi-Fi hotspots. As we also stressed in the piece, we did not know the specifics of the case because the pubco that owns the pub and is The Cloud's client did not want these details publicised.
This remains the case. We have repeatedly tried to find out where the case happened and what the precise circumstances were, but the pubco, whichever one it is, is keeping the brick wall intact.
Meanwhile, we have spoken to many industry insiders and taken note of the widespread discussion that followed our story's publication. There are several causes of disquiet over the story. Firstly, £8k is a strange figure to be paid in such a case. Secondly, a "fine" is actually something that is paid in criminal, not civil, matters (hence, when people talk about "parking fines", they really should say "parking penalties" instead). Thirdly, according to legal experts such as Lilian Edwards, who we quoted in the story, a court should not have found the landlord liable.
Finally, no-one can track the case down through court records. This is partly because the UK has no comprehensive, centralised court records database. However, after we published, we even had a major rights owner group call us to say they too were stymied as to the case's identification. No pub association has been able to track the case down, either.
Earlier this week, we asked Graham Cove, The Cloud's MD, whether the £8k really had been a fine, or whether it might have been an out-of-court settlement. He would or could not say.
Based on what we know, and in the absence of more precise information, we can't say whether the £8k was a settlement or a court-imposed penalty. This is a very significant distinction — if there was no court judgement, no new legal precedent was set. As Lilian Edwards said in the original story, substantive case law points to the pub's indemnity in this matter.
But a settlement would mean that the pub landlord effectively admitted guilt. If it really was a case of a customer downloading a film or whatever over their open Wi-Fi network, which was provided as a service to customers, then they should not have settled.
We spoke to one senior ISP industry figure in the last week who suggested that the legal uncertainty facing open Wi-Fi networks will not be alleviated until someone stands up to the rights groups and says "OK, let's take this to court", rather than simply paying up without a fuss.
Based on what we currently know, this could be yet to happen.