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“Safe harbour” for hotels in Germany

It is standard of quality for many hotels in the world to provide the guests with fast and unlimited access to the Internet, perhaps not always for free and cheap. In many cases hotels conclude agreements with internet-providers.

Therefore many right holders consider the operators of hotels as liable for certain copyright infringements because the identified by the investigators IP addresses belong to such operators. Simple logic. If the hotel provides access to the Internet, the hotel is liable for occurred infringement. The hotel can control the access.

But it is not so simple. For example, in one case the court decided in favor of hotel. The right holder has identified IP address belonging to the hotel and the owner of hotel, but the owner did not offer any files in file sharing network. All employees of the hotel and all guests using the Internet have been given instruction to abide the law in relation to intellectual property during internet surfing.

Each guest surfed the internet under its own responsibility. Each guest received card with access data and mention that illegal use of Internet access is forbidden. The Internet access was personalised and secured. It could not be simply broken. So owner of hotel was responsible owner. Therefore it has not infringed copyright in issue. Besides the hotel was not obliged to track the users’ surfing in internet. As a result the right holder lost the case.

In other case right holder also has lost. Someone has offered movie in uTorrent. The right holder organised investigation, spent its money and identified IP address and the person the IP address belongs to. It was hotel and it was not sure in its wish to pay money for occurred infringement. Therefore it was sued. But there was one detail.

Agreement with internet-provided was concluded with director of hotel because at the time of signing of agreement there was no opportunity to do it with company. Internet access was restricted by gateway, but access to music and video content was not blocked in order to avoid restriction of legal use of internet access, like iTunes. In order to get the internet access, the guest must accept terms and condition of access and therefore accept responsibility for any illegal action during internet surfing.

But there is little detail – you can identify the room where occurred infringement, but exactly who from all of guests residing there at the moment of infringement has committed it – you should make little more efforts than usual. Besides, there was no total retention of data in accordance with applicable law. Plaintiff asserted the hotel did not undertake all necessary measures in order to avoid infringement. It could block certain ports of file sharing networks or give to guests more detailed instruction in relation to Internet surfing.

The defendant opposed that the high quality standards of service don’t allow to broadly restrict access to the Internet, otherwise it can negatively affect economical welfare of hotel and ruin business. The court mentioned that the plaintiff did not refer what ports should be blocked and did not prove whether required blocking can bring necessary result. If the defendant would comply with all requirements to block ports it could block the Internet access to legal offerings and restrict Internet connection.

Even if the IP address was identified correctly, the defendant is not liable for copyright infringement, the court decided. The internet provider or the owner of the hotel did not participate in Internet surfing with guest. The hotel did do everything what it should as a responsible owner. The hotel’s duty to control has been carried out.