The growth in Wifi piggybacking is potentially leaving businesses open to liability as not all piggybackers are using business networks just to send their emails. What is the liability to a business where it leaves its wireless network open to a piggybacker who downloads an unauthorised copy of the movie The Hottie and the Nottie from a peer-to-peer site?
Even a Paris Hilton box office flop will be protected by copyright, and UK copyright law grants a number of exclusive rights to copyright owners. These include the ability to make the movie available to the public in cinemas, on DVD and via the web. Therefore, the person who posts on the P2P site without consent of the movie distributor is clearly infringing copyright for the movie.
The piggybacker was probably aware that the copy of the movie they were downloading was not legitimate and that they too were acting unlawfully. But as the facilitator of the unlawful download, can the business be held to have infringed copyright too?
If the film is copied on to the business's network, there may be three infringements of copyright:
- The copying of the file on to the network, perhaps by a Paris Hilton fan employed by the business
- The transmission of the film to the piggybacker
- The eventual copying on to the piggybacker's computer - whether to the hard drive or memory cache if the film is being streamed
The more likely scenario is that the movie will be located on a third party's server - in our example, the P2P server (or its ISP). In this situation, the business is not hosting the copy of the movie; the piggybacker is using the network as a conduit through which the infringement occurs. Consequently, the business may have a defence to an infringement claim by the movie distributor, which means it might not be liable for damages or for any criminal sanctions as a result of transmission through its network. To avail itself of the defence, the business would have to show that:
- It did not initiate the transmission of the file to the piggybacker
- It did not select or authorise the piggybacker to receive the transmission
- It did not modify the movie file during the course of its transmission
However, although the defence may hold up well for the business in respect of the piggybacker's copyright infringement, it may not be the end of the business's problems. Most internet service providers restrict usage of their services to their customers (in this case, the business) under their terms and conditions.
A business risks being in breach of those terms and conditions if it has an open wireless network, thus giving the ISP the right to terminate its services.
Attempts have been made to impose a duty on network owners to secure their networks - in 2003, the New Hampshire state legislature contemplated such measures. In February 2008, the UK Government, bowing to pressure from copyright owners, published a green paper in which it was suggested that ISPs may be compelled to disconnect users who download pirate material.
Should such measures be introduced, the danger for businesses is that they may be first in the firing line rather than the wireless piggybacker. Whether this proposal is a pragmatic solution to copyright infringement is questionable.
Notwithstanding this, and in light of these proposals, businesses are best advised to do the following
- Introduce clear policies of use of the business's IT systems and incorporate these into employment contracts
- Check what's on the network and delete clearly infringing material
- Maintain virus and spyware protection
- Set firewall rules
- And, most importantly, secure wireless access.
- Frank Jennings is an Associate solicitor in DMH Stallard's technology group and head of the commercial team. He has extensive experience of the technology sector having previously worked for Psygnosis and Vodafone. www.dmhstallard.com.