Finally: Germany to abolish open wi-fi liability for users’ behavior

Posted on May 11, 2016 by Rick Falkvinge

Germany’s ruling coalition has decided to abolish the liability for users’ copyright infringements and other behavior when operating an open wi-fi access point. This weird and anachronistic liability has seriously hampered the organic net growth in Germany, and was recently challenged at the European level. The revised law is expected to take effect as early as this fall.

Germany has long been an exception to sane laws regarding open wifi, as access point operators have been legally liable for everything their users do through an open access point. In effect, this has prevented the silver-bullet open wireless defense for people sharing culture and knowledge from their homes, but it has also prevented a large growth of random, organic connectivity for startup entrepreneurs (which, coincidentally, is something the legacy industries don’t want to happen).

The liability law was recently challenged by German Pirate Party activist Tobias McFadden, who – in a limited scenario – challenged the liability and took it to the European Court of Justice. He had been operating a commercial establishment, providing open and free wi-fi for his customers, and argued that this gave him messenger immunity under the EU e-commerce directive. Very surprisingly for the copyright industry, and embarrassingly for Germany, the advisor to the European Court of Justice agreed with the pirate activist’s interpretation of the law.

This appears to have set off a frantic activity to remove this embarrassment to Germany, and just today, it was reported that the ruling coalition has agreed to take out the anachronistic access point operator liability – the Störerhaftung – for good. The revised law is expected to take effect later this year, which is very quick processing, especially for Germany.

This liability mechanism was something that went against two millennia of legal tradition: the messenger immunity (the non-liability for a message carried on behalf of someone else) has roots all the way back to the Roman Empire, and possibly even earlier. This had just been an attack vector from the copyright industry to prevent the future marching ahead, and as usual, if that crushes two millennia of established legal rights and tradition, they wouldn’t care.

That held until the case was escalated to the European level where this appeasement to the copyright industry became a German embarrassment. So finally, Germany is being brought into the future where the rest of Europe is – much thanks to the footwork of individual activists.

It’s noteworthy, though Germany’s legislators probably don’t realize this yet, that the elimination of the Störerhaftung enables use of the open wireless defense in Germany, according to a ruling from the Danish Supreme Court (which does have bearing in Germany, as that court ruled on EU directives). Germany is still ripe with the shady practice of speculative invoicing – sending legal threats to people who torrent with “offers they can’t refuse” – and this change in law will quite likely bring an end to that shady practice, too, once a few people realize they now have the means to fight back.

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