Save our open WiFi: an open letter

Just about to disappear?

Readers may remember that a few months ago this very blog reported on a new case (still pending) referred to the Court of Justice of the European Union (CJEU). This is Case C-484/14 McFadden, a reference for a preliminary ruling from the Landgericht München I (Germany), seeking clarification as to whether - among other things - the provider of password-free free WiFi may be liable for third-party copyright infringements or whether, instead, the person offering the Internet access may be considered shielded from liability on the basis that he is but a ‘mere conduit’ provider under Article 12 of the Ecommerce Directive, as read in light of Recital 42 in the preamble thereof.

Whilst no new developments have yet occurred, the IPKat has received notice of an open letter published by the Electronic Frontier Foundation, whose content is explained by Katfriend Martin Husovec (Max Planck Institut) below.

Here's what Martin writes:

"Technology that helps to save human lives is now endangered by copyright enforcement.

In World Disasters Report 2013, the Red Cross celebrated an innovation developed by Dr. Paul Gardner-Stephen from Flinders University. His invention was designed to ease decentralised communications between individuals in absence of any usual connectivity. This radically helps to improve on-the-ground fight against humanitarian crises occurring in the aftermath of disasters. The new mode of communication is based on a simple technology that is widely available - open WiFi. 

Open wireless allows for free flow of data between rescue teams and/or victims, even in absence of any “outside-world connection”, such as Internet or mobile networks, that are often unavailable.

But even if the regular connectivity is available, open wireless can be crucial. During 2012 earthquake in northern Italy, local authorities requested the general public to remove passwords from their private WiFi networks in order to allow the widest possible emergency access to communications networks. Similarly when in 2007, the 40-year old bridge in Minneapolis collapsed into the river, open WiFi played an important role in managing the response and recovery efforts. In 2012, when Hurricane Sandy wreaked havoc in New York, open wireless networks again became a crucial form of communication infrastructure.

But saving lives goes beyond “mere” disaster management. General Motors, for instance, is working on Wi-Fi-equipped cars to detect pedestrians and cyclists as way of preventing accidents. “This new wireless capability could warn drivers about pedestrians who might be stepping into the roadway from behind a parked vehicle, or bicyclists who are riding in the car’s blind spot,” noted Nady Boules from General Motors for Gizmag yet in 2012.

McFadden jerseys

These and other similar innovations are now under threat in Europe. And this is no exaggeration. European sky of wireless hotspots might soon become password-protected by default in order to prevent copyright infringements (German one already is for a while). It is the Luxembourg judges at the CJEU who hold the keys from future.

In a recent preliminary reference of McFadden the judges have to decide whether password-protection is a legitimate enforcement technique and whether it is to be expected from the operators of open wireless or not. Since the procedure before the CJEU (unlike ECtHR) does not allow participation of third parties, the broad coalition of organisations is now publicly addressing an open letter to the CJEU demonstrating that general requirement of password protection of open wireless would constitute an obstacle to legitimate trade (Art. 3(2) of the Enforcement Directive, Article 41(1) TRIPS Agreement) and should be outlawed. The brief (co-authored by me) gathers very strong evidence of socially beneficial uses of open wireless that will be entirely crippled or at least partially prevented if password locking becomes a standard.

The decisive legal framework is in Article 8(3) of the InfoSoc Directive prescribing the Member States to grant copyright holders a right to assistance against intermediaries whenever are their services used by third parties to infringe. In answering the demands of right holders, it does not matter whether an intermediary misbehaved. His factual and legal position to prevent third party wrongdoing alone suffices to establish a course of action. Whether a particular type of assistance is permissible or not, thus does not turn on much else than how good policy it is for the society at large. 

Fighting copyright infringements is surely legitimate, but as any optimal enforcement policy, it should not be carried out at all costs, especially when the social costs outweigh private benefits. 

The Luxembourg judges have undeniably a track record of understanding this basic proposition of optimal enforcement (eg SabamC-360/10 [here and here], Scarlet Extended C-70/10 [here and here]).

Our 21st century needs 21st century infrastructure. 

Closing open WiFi would be a step back, and not a leap forward. Intellectual property enforcement should spur economic progress and not lead to devaluation of the society. It is hoped that the CJEU will be again mindful of this when giving its answers in McFadden. Please read the open letter yourself to consider whether also your organization (commercial, academic or non-profit) would like to support it by joining the signatories."