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The Dangers of Unprotected WiFi™: Copyright Infringement

Jun 17, 2010
Jonathan Lucas

If a connection is left unprotected, anyone with a suitable mobile device within range of the signal can use it to access the internet

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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 internet.

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 agree to terms of use, which stipulate the owner of the wireless internet connection is not liable for any such infringing acts.

©2010 James and Wells Intellectual Property

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