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Mobile Phone Makers Score Big Win in Radiation Suit
USA Created: 23 Oct 2016
The mobile phone industry scored a major victory in litigation tying the use of mobile phones to brain tumors as Washington, DC's top court adopted a new test that could bar almost all of the plaintiffs’ scientific evidence. ( Motorola, Inc v Murray , 2016 BL 348817, D.C. en banc, No 14-CV-1350, 10/20/16).

The viability of at least 13 suits over the dangers of long-term exposure to mobile-phone radiation is seriously jeopardized by the court’s Oct. 20 decision to abandon its century-old test for evaluating scientific testimony in favor of the much more widely adopted federal rule.

The case has been closely watched by a broad array of business and medical groups, which tried to steer the ruling in their favor.

The industry trade association, CTIA, said the ruling was “significant” because it backed the trial judge’s finding that “no scientist could credibly say that cell phones cause the alleged harm.”

“As the trial judge found, ‘virtually all world-wide governmental health agencies that have studied the question have concluded’ that the science does not support plaintiffs’ claims,” the group said in a statement.

But plaintiffs’ counsel, Jeffrey B. Morganroth of Morganroth & Morganroth in Birmighman, Mich., disputed CTIA’s characterization of the court’s ruling and told Bloomberg BNA that any suggestion that the ruling will shut down the litigation is overblown.

He said he was “confident” that the plaintiffs will be able to satisfy the Federal Rule of Evidence 702, the federal standard for expert testimony, and that the litigation will proceed.

The plaintiffs had been proceeding with the standards that had long been in place, and they will now work with their expert witnesses on testimony that will comply with the new rule, he said.

Defense attorneys Eric Lasker and Joe Hollingsworth, with Hollingsworth LLP in Washington, D.C., told Bloomberg BNA that the decision will reverberate beyond the parties.

The attorneys, who represented the U.S. Chamber of Commerce, the National Association of Manufacturers, the National Federation of Independent Businesses, and International Association of Defense Counsel in a brief in support of the mobile phone makers, said the decision was a “victory for the administration of sound justice in D.C. courts.”

The D.C. Court of Appeals has “greatly improved the quality of the evidence upon which D.C. juries will base their verdicts and has prevented litigants from dumping a barrage of unreliable and misleading scientific evidence on a jury,” the attorneys said.
Suits Go Back to 2001

The suits here were filed as far back as 2001 in the District of Columbia Superior Court and named as defendants Motorola Inc., Verizon Wireless Inc., AT&T Inc., Cingular Wireless LLC, and others.

The plaintiffs or their representatives (many of the plaintiffs have since died) allege that their use of hand-held mobile phones caused brain cancer, tumors, and other types of illness and injury.

They blamed radio-frequency emissions, alleging that the defendants were aware of studies showing that radio-frequency radiation can cause pre-cancerous tissue destruction. They accused the companies of suppressing the studies, manipulating research, and pressuring government bodies.

Fierce Battle Over Evidentiary Standards

In 2014, a trial court, in a consolidated proceeding, heard four weeks of evidence about whether mobile phone radiation causes brain tumors.

The judge heard from eight plaintiffs’ experts and four defense rebuttal experts. He reviewed 280 exhibits, thousands of pages of documents, and hundreds of pages of legal briefs filed by both sides.

The judge determined that whether most, if not all, of the plaintiffs’ causation evidence was admissible in court depended on the evidentiary standard used to evaluate the reliability of the evidence.

Under the former test, adopted in 1923, the controversial evidence would largely be admitted.

But under the standards set forth in Federal Rule of Evidence 702, most of the proof would likely be rejected as scientifically invalid.

Here, Washington, D.C.'s top court, in a ruling that involved all seven of the court’s judges, unanimously sided with the mobile phone carriers, and adopted the federal rule.

Old Test Was `Outdated.’

Paul Rothstein, a professor of Law at Georgetown University, supported the court’s decision to abandon the old evidence test.

The former evidentiary test was “beset with amibiguities and was outdated for the modern scientific world,” he told Bloomberg BNA,

The new standard “aims at the right target by getting judges to evaluate what is being said by experts, and gives the judges some useful guidance in eliminating junk science,” he said.

Defense attorney Kamil Ismail, with Goodell, DeVries, Leech & Dann in Washington, D.C., agreed.

Ismail, who filed a brief in the case backing the industry defendants for the D.C. Defense Lawyers’ Association, said that “while the plaintiffs will have an opportunity to conduct some further discovery and briefing, this ruling by itself has the potential to decide the outcome of the case.”

And the ruling will likely have impact beyond this case, he added.

“In the past, trial judges in D.C. courts have been constrained in their ability to evaluate the reliability of expert testimony,” he said. But no longer will that be the case, he said.
FCC Limits and Berkeley Litigation

Outside of battles between experts over causation, another significant focus in mobile-phone radiation disputes has been whether federal law blocks state-law suits and state or local regulations.

The Federal Communication Commission adopted “specific absorption rate” (SAR) limits for mobile phones in 1996 and this standard has been relied on by a number of courts to find radiation claims barred.

In 2009, Washington, D.C.'s top court allowed some claims to proceed despite the FCC limit.

Other recent litigation over mobile phones has centered on a local law in northern California.

In 2015, the City of Berkeley passed an ordinance requiring mobile phone retailers to warn customers that phones carried in pants, shirt pockets or bras while turned on and connected to a wireless network may exceed the federal radiation limits.

The wireless telecommunication industry fought back, obtaining a partial preliminary injunction from the U.S. District Court for the Northern District of California in September 2015 ( CTIA - The Wireless Ass’n v. City of Berkeley, 139 F. Supp. 3d 1048 (N.D. Cal. 2015)).

But even though it ruled partly in favor of the industry association, that court said some health risks had been shown.

The court looked to the causation question, though not in depth, in assessing the First Amendment implications of the ordinance. It asked whether the ordinance was rationally related to, and actually furthered, a legitimate government interest.

The court said the necessary connection was there, pointing to the science behind the FCC rule on SAR levels.

“While there is scientific uncertainty as to the relationship between SAR levels and the risk of, e.g., cancer, and there is scientific debate about whether nonthermal as well as thermal effects of RF radiation may pose health risks, there is a reasonable scientific basis to believe that RF radiation at some levels can and do present health risks,” the federal court said.

“The SAR limits were established by the FCC in the interests of safety in view of the potential risks of RF radiation exposure,” the court said.

The district court eventually dissolved the preliminary injunction in January 2016 after Berkeley addressed the court’s preemption concerns by removing some language from the ordinance.

The industry association has appealed to the Ninth Circuit.

With assistance from Martina Barash in Washington.

To contact the reporter on this story: Bruce Kaufman in Washington at

To contact the editor responsible for this story: Steven Patrick at
For More Information

The ruling is at

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
Source: Bureau of National Affairs, Bruce Kaufman & Martina Barash, 21 Oct 2016

Electronic Musician "Moby" releases grim video about smart-phone addiction
USA Created: 18 Oct 2016
Moby and the Void Pacific Choir paint a grim portrait of the smartphone-obsessed masses in the video for "Are You Lost In The World Like Me?" featuring old school Max Fleischer-inspired animation courtesy of Steve Cutts.

Watch the music video here:

In the video for the "These Systems Are Failing" cut, mindless cellphone-addicted junkies post selfies, send emojis, hunt for Pikachu or swipe right through human interactions, completely oblivious to the reality around them.
Click here to view the source article.
Source: Rolling Stone Magazine, Daniel Kreps, 17 Oct 2016

New (EU) UK HSE (Health and Safety Executive) regulations for employees’ EM exposure!
United Kingdom Created: 16 Oct 2016
The Guide by the Health and Safety Executive (HSE) to the UK’s new regulations on electromagnetic exposure, which came into force on 1 July 2016, explains how employers must make a risk assessment and give “special consideration” to “employees at particular risk” below the ICNIRP’s heating limits.
Employees who have EHS, including teachers and lecturers, should be able to benefit from this, but others, like pupils and students, also need similar protection.

New UK regulations for employees’ EM exposure
The Guide by the Health and Safety Executive (HSE) to the UK’s new regulations on electromagnetic exposure, which came into force on 1 July 2016, explains how employers must make a risk assessment and give “special consideration” to “employees at particular risk” below the ICNIRP’s heating limits.
Employees who have EHS, including teachers and lecturers, should be able to benefit from this, but others, like pupils and students, also need similar protection.

The Electromagnetic Fields (EMF) Directive
On June 29th, 2013, the European Commission repealed Directive 2004/40/EC and published Directive 2013/35/EU on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (electromagnetic fields) (20th individual Directive within the meaning of Article 13(1) of Directive 89/391/EEC). The directive can be viewed online link to external website.

The final text of the Directive is largely well balanced and proportionate, and offers a framework within which Member States, including the UK can continue to protect their workers.

Member States have been given 3 years, up to 1st July 2016, to transpose the Directive.
Current information

Additional background information and progress on the transposition of the Electromagnetic Field (EMF) Directive in the UK can accessed via HSE’s Euronews site.

For more general information on electromagnetic fields, please see the non-ionising FAQs page.
Useful links

Public Health England link to external website
International Commission on Non-Ionizing Radiation (ICNIRP) link to external website
International Electrotechnical Commission (IEC) link to external website
European Society for Magnetic Resonance in Medicine & Biology (ESMRMB) link to external website
European Coordination Committee of the Radiological, Electromedical and Healthcare IT Industry (COCIR) link to external website
Association of X-Ray Equipment Manufacturers (AXREM) link to external website
Royal College of Radiologists link to external website
National Grid link to external website
Engineering Employers Federation - EEF link to external website
Confederation of British Metalforming link to external website
Medical research Council link to external website


Guide to CEMFAW Regulations - HSG 281
EMF exemption certificate PDF

More resources

The Control of Electromagnetic Fields at Work Regulations 2016 PDF link to external website

2016 No. 588
The Control of Electromagnetic Fields at Work Regulations 2016

The Secretary of State makes these Regulations in exercise of the powers conferred by sections 15(1), (2), (5), (8) and 82(3)(a) of, and paragraphs 8, 9, 11, 13(2) and (3), 14, 16, 18 and 20 of Schedule 3 to, the Health and Safety at Work etc. Act 1974 (“the 1974 Act”)(a).
The Regulations give effect without modifications to proposals submitted to the Secretary of State by the Health and Safety Executive (“the Executive”) under section 11(3)(b) of the 1974 Act.
Before submitting those proposals to the Secretary of State, the Executive consulted the bodies that appeared to it to be appropriate as required by section 50(3)(c) of the 1974 Act.
Citation and commencement
1. These Regulations may be cited as the Control of Electromagnetic Fields at Work Regulations 2016 and come into force on 1st July 2016.
2. —(1) In these Regulations— “the 1974 Act” means the Health and Safety at Work etc. Act 1974; “AL” means an action level set out in Parts 2 and 3
of the Schedule; “direct biophysical effect” means an effect on human body tissue caused by its presence in an electromagnetic field; lectromagnetic field” means a static electric, static magnetic and time-varying electric, magnetic and electromagnetic field with a frequency of up to 300 GHz;
“ELV” means an exposure limit value set out in Part 2 of the Schedule; “employee at particular risk” means— (a) an employee who has declared to his or her employer a condition which may lead to a higher susceptibility to the potential effects of exposure to electromagnetic fields; or
(b) an employee who works in close proximity to electro-explosive devices, explosive materials or flammable atmospheres; “health effect” means a direct biophysical effect which is potentially harmful to human health; “indirect effect” means an effect, caused by the presence of an object or a substance in an electromagnetic field, which may present a safety or health hazard; “sensory effect” means a direct biophysical effect
involving a transient disturbance in sensory perception or a minor and temporary change in brain function.
(2) In these Regulations a reference to employees is, i n relation to an employer, to be treated as a reference to the employees of that employer while
they are at work.

Please read the rest of THE LAW doc at link!
Click here to view the source article.
Source: Alex/Agnes Ingvarsdóttir

Call for more brain tumour research funding, BUT REMARKEBLY NO-ONE ASKS about the CAUSE of THE HUGE INCREASE IN THE CANCERS!!
United Kingdom Created: 15 Oct 2016
Today 19% more people under 40 are developing brain cancers than in 2002
And 27% more people die from the decease, and still No one ask´s WHY, and What is the cause!!
Brain tumors kill more people and children under 40 than any other cancer in the UK.
Yet funding for research into brain cancer is still woefully inadequate. A new study calls for increased resources.

But there is No One there asking for an answer to WHY the Increase!
And of course No-one even hints at the possibility that the Microwave Radiation from the Mobile Masts/phones/I pads and other microwave gadgets could possibly be the culprit.
No, instead we are far to busy making sure that Everyone gets turned into a Microwave Radiation Junky.
Oh yes, Its Very Profitable for both parts promoting the "Technology", and helps fill overspent Government treasuries, as well as giving them a Prime Tool, to use to follow most peoples Every move, step. Gosh, that must be Truly Exiting, watching/listening to the society mostly trying to get on with the job at hand!
Just think about it next time you make an appointment with your plumber, builder or electricians, there is someone listening in to g all your Excitement

Never mind if this could cause a Major health catastrophe, and very soon actually.

Thing is the Health effects research already exists, the evidence exists, Yes, Independent, but 2500 Independent studies from All Over The World, are up against the ca. 200 Telecom Industry and Government funded studies that (because of the cash rewards for both) choose to ignore the REAL Independent Studies, where there is No Reward for anyone, except, of course, there would be for the citizens if their well-being was at the heart of their Governments, instead of instant monitory gain , and lets not forget the chance Governments have to spy on all their citizens, most of whom are truly law abiding citizens, who just go on with their lives of working, and bringing up the new generations of future citizens, so many Government employees choose to disregard Who they actually work for, who pays their wages, and instead work for the quick cash gain.

Maybe I am naive, but I seem to remember that there was a clause that All New members of a Government, or parliament, when sworn in had to promise that they would put the health, well-being and interest of their citizens as their a First obligation!
What happened to that promise?
When was that disregarded?

It sure is time to bring it back, At the Front this time, and this time around to Keep them (civil servants) to their obligations to the people who pay their wages, and which they totally disregard today.
Please watch the video at link.

Best regards.
Click here to view the source article.
Source: Channel 4 News, Agnes Ingvarsdottir.

Residents call for crisis talks over mobile mast plan
United Kingdom Created: 14 Oct 2016
FRUSTRATED residents in Birkdale are calling for a crunch meeting with mobile phone operators who plan to build a new mast in the area.

Vodafone and Telefonica, which runs O2, hope to get permission to erect a phone mast at the site next to the One Stop Shop in Belmont Street – but concerned residents in the area fear there could be serious repercussions, including health issues.

As a result a councillor has arranged a meeting between the mobile phone operators and residents to discuss the plans.

Cllr David Barton will now be contacting residents to offer them the chance to meet with the operators to discuss the issue, after previously meeting their representatives on site to learn more about the proposals.

The application is due to be considered by Sefton Council.

Cllr Barton said: “As a local councillor for the area I am keen to represent residents’ views and concerns to the mobile phone operators and give them the chance to ask questions and learn more about the proposals.

“As I understand it, there is a specific hole in coverage where the surrounding sites in the existing network cannot cope with the coverage and capacity requirements needed.

“I believe that this is because the operators’ existing mast off Tulketh Street is due to be decommissioned and removed from the network.”

“Vodafone and Telefónica have insisted that their base stations are designed and operated so that the public are not exposed to radio frequency fields above the guidelines set by the International Commission on Non-Ionizing Radiation Protection (ICNIRP).

“High quality mobile connectivity is now regarded by most people as a necessity rather than a luxury but we have to ensure that base stations and masts are located at the correct sites and that if people have concerns that they are fairly represented and dealt with.”
Click here to view the source article.
Source: Champion, Ollie Cowan, 14 Oct 2016

Pants on Fire! Samsung phones AND supposedly fixed replacements, spontaneously combust
United Kingdom Created: 10 Oct 2016
Smartphone giant Samsung has reportedly stopped production of its Note 7 phone amid claims that replacement devices are still at risk of catching fire.

News agencies reported Samsung had temporarily halted production after talks with safety regulators.

Samsung told the BBC it was "adjusting the production schedule to ensure quality and safety matters".

The company has been forced to issue new models of the smartphone following complaints of faulty batteries.

It issued a recall of the Galaxy Note 7 in September and later assured customers that the fixed devices were safe.

But there have now been several reports of replacement phones starting to emit smoke.
'No longer exchanging'

In a further blow, two US mobile networks have stopped replacing or selling the phone.

The AT&T and T-Mobile networks said they would no longer replace the devices in the US, while the latter said it would halt all sales of the phone.

"While Samsung investigates multiple reports of issues, T-Mobile is temporarily suspending all sales of the new Note 7 and exchanges for replacement Note 7 devices," T-Mobile said on its website.

Meanwhile, AT&T said: "We're no longer exchanging new Note 7s at this time, pending further investigation of these reported incidents." It advised customers to exchange them for other devices.
Manufacturing error

Samsung said in a statement last month that the issue of overheating was caused by a "rare" manufacturing error that resulted in the battery's "anode-to-cathode [negative and positive electrodes]" coming into contact.

But last week, a domestic flight in the US was evacuated after a replacement Note 7 started emitting smoke in the cabin. And a man in Kentucky reportedly woke up to a bedroom full of smoke from a replaced Note 7.

In an update on Monday, Samsung said it understood the concerns of carriers and consumers about the newly released replacement Note 7 devices.

"We continue to move quickly to investigate the reported case to determine the cause and will share findings as soon as possible," Samsung said.

"If we conclude a product safety issue exists, we will work with the CPSC (US Consumer Product Safety Commission) to take immediate steps to address the situation."

Shares in Samsung Electronics closed down 1.5% in Seoul.
Brand damage

Eric Schiffer, a brand strategy expert at Reputation Management Consultants, said the company needed to take action to limit the harm to its image.

"If the Note 7 is allowed to continue, it could lead to the single greatest act of brand self-destruction in the history of modern technology," he said.

"Samsung needs to take a giant writedown and cast the Note 7 to the engineering hall of shame next to the Ford Pinto."

In 1977, the Pinto was the subject of a then-record US recall to address safety concerns.
Click here to view the source article.
Source: BBC, 10 Oct 2016

Microwaves and Alzheimer's disease
China Created: 10 Oct 2016
Conclusion: The impact of wireless communication on human health is a mater of debate - Since there are widespread concerns regarding the deleterious effects of the exposure to microwaves on human tissues and the subsequent potential threat of carcinogenesis, we can conclude that the current exposure to microwaves during the use of cell phones is not safe for long-term exposure, despite the current scientific opinion.

Absorption of the cell phone signal into the brain of children does not exclude serious neuronal damage, as evidenced in rat studies (50). In addition, the increased risk of tumors of the head associated with long-term cell phone use is evident since radiofrequency may cause the blood-brain barrier to leak and to favor the damage of genetic material which consists of common precursors to cancer (51).

Accordingly, poor fertility and the increased chance of miscarriage and childhood cancer have been associated with cell phone storage in front pockets. Notably, the data suggested that the hippocampus can be injured by long-term microwave exposure (52), which may result in the impairment of cognitive function due to neurotransmitter disruption.

These results suggest that precautionary approach underlying the restrictive use of cell phones constitutes essential appropriate guidelines to follow although additional studies are needed.
Click here to view the source article.
Source: PubMed, Xia Zhang / Wen-Juan Huang / Wei-Wei Chen, 04 Aug 2016

American Academy of Pediatrics Issues New Recommendations to “Reduce Exposure to Cell Phones”
USA Created: 6 Oct 2016
Nation’s largest group of children’s doctors responds to new government study linking cell phone radiation to cancer.

In response to the U.S. National Toxicology Program study results finding exposure to wireless radiation significantly increased the prevalence of highly malignant heart and brain cancers in rodents, the American Academy of Pediatrics (AAP) has issued specific recommendations to reduce wireless cell phone exposure and updated their online resources for parents concerning cell phones and wireless devices.

“They’re not toys. They have radiation that is emitted from them and the more we can keep it off the body and use (the phone) in other ways, it will be safer,” said Jennifer A. Lowry, M.D., FAACT, FAAP, chair of the AAP Council on Environmental Health Executive Committee in the AAPs press release on the NTP Study Results.

“The findings of brain tumors (gliomas) and malignant schwann cell tumors of the heart in the NTP study, as well as DNA damage in brain cells, present a major public health concern because these occurred in the same types of cells that have been reported to develop into tumors in epidemiological studies of adult cell phone users,” stated Ronald L. Melnick, PhD, the National Institutes of Health toxicologist who lead the NTP study design and senior advisor to the Environmental Health Trust. “For children the cancer risks may be greater than that for adults because of greater penetration and absorption of cell phone radiation in the brains of children and because the developing nervous system of children is more susceptible to tissue-damaging agents. Based on this new information, regulatory agencies need to make strong recommendations for consumers to take precautionary measures and avoid close contact with their cell phones, and especially limit or avoid use of cell phones by children.”

The AAP has updated their Healthy Children Webpage on Cell Phones entitled Cell Phone Radiation & Children’s Health: What Parents Need to Know. The webpage reiterated children’s unique vulnerability to cell phone radiation stating, “Another problem is that the cell phone radiation test used by the FCC is based on the devices’ possible effect on large adults—not children. Children’s skulls are thinner and can absorb more radiation.”
The AAP issued the following cell phone safety tips specifically to reduce exposure to wireless radiation:

Cell phone safety tips for families:

- Use text messaging when possible, and use cell phones in speaker mode or with the use of hands-free kits.

- When talking on the cell phone, try holding it an inch or more away from your head.

- Make only short or essential calls on cell phones.

- Avoid carrying your phone against the body like in a pocket, sock, or bra. Cell phone manufacturers can’t guarantee that the amount of radiation you’re absorbing will be at a safe level.

- Do not talk on the phone or text while driving. This increases the risk of automobile crashes.

- Exercise caution when using a phone or texting while walking or performing other activities. “Distracted walking” injuries are also on the rise.

- If you plan to watch a movie on your device, download it first, then switch to airplane mode while you watch in order to avoid unnecessary radiation exposure.

- Keep an eye on your signal strength (i.e. how many bars you have). The weaker your cell signal, the harder your phone has to work and the more radiation it gives off. It’s better to wait until you have a stronger signal before using your device.

- Avoid making calls in cars, elevators, trains, and buses. The cell phone works harder to get a signal through metal, so the power level increases.

- Remember that cell phones are not toys or teething items.

In 2012, the AAP published Pediatric Environmental Health, 3rd Edition recommending, “exposures can be reduced by encouraging children to use text messaging when possible, make only short and essential calls on cellular phones, use hands free kits and wired headsets and maintain the cellular phone an inch or more away from the head.”

Since 2012, the AAP has supported the Federal Cell Phone Right to Know Legislation and has written to the FCC calling on the federal government to review and strengthen radiation standards for wireless devices in an effort to protect children’s health.
Click here to view the source article.
Source: Environmental Health Trust, 06 Oct 2016

Cell Phone Radiation Breaks DNA
USA Created: 2 Oct 2016
Latest NTP Findings Are Consistent with Higher Tumor Counts.

In May, the U.S. National Toxicology Program (NTP) announced that male rats exposed to cell phone radiation developed higher rates of cancer. Soon, the NTP will explain how that might have happened.

The same radiation that led male rats to develop brain tumors also caused DNA breaks in their brains. Female rats —which did not have significantly elevated tumor counts— had fewer DNA breaks.

All these findings are part of the same $25 million NTP project.

The NTP results provide “strong evidence for the genotoxicity of cell phone radiation,” said Ron Melnick, who led the team that designed the NTP study. This “should put to rest the old argument that RF radiation cannot cause DNA damage,” he told us.

“Finding DNA damage in the brain of rats supports NTP’s tumor data,” according to Melnick.

This is perhaps the most decisive chapter in a saga that began more than 20 years ago when Henry Lai and N.P. Singh showed that RF/microwave radiation could cause DNA breaks. After that the "war games" began and never let up.

Read our new story, the latest chapter on NTP's most expensive project ever:

Click here.
Louis Slesin, PhD
Editor, Microwave News
Click here to view the source article.
Source: Microwave News, Louis Slesin PhD, 06 Sep 2016

European Court ruling may kill off free Wi-Fi
Belgium Created: 2 Oct 2016
In short: a copyright ruling in a case of music shared via an open Wi-Fi network has the potential to make hosting free Wi-Fi access points too cumbersome, as the ruling demands that access to such Wi-Fi networks be restricted by registering all users and issuing separate passwords for all.


European Court Allows Copyright Owners to Demand Open Wifi Networks be Password Protected

The European Court of Justice (ECJ) recently announced its decision in Sony v McFadden with important consequences for open wireless in the European Union. The court held that providers of open wifi are not liable for copyright violations committed by others, but can be ordered to prevent further infringements by restricting access to registered users with passwords. EFF reported on the legal aspects of the case last year and collaborated on an open letter to the ECJ on the costs to economic growth, safety and innovation of a password lockdown.

Free wifi is rare in Germany compared with other EU countries due to legal uncertainty generated by the doctrine of Störerhaftung, a form of indirect liability for the actions of others, which has deterred cafes, municipalities and others from offering free connectivity. Many in Germany hoped that the McFadden case would remove these doubts, but it is now clear that a legislative fix is needed instead.
A Community Wireless Advocate in Court

McFadden, a community wireless activist with Freifunk, offered free wifi from his shop. He received a cease and desist letter from Sony Music after a user shared music from his network, and they also demanded that he pay the lawyer fees for this letter. McFadden successfully argued he was a service provider under the national implementation of the E-Commerce Directive and a 'mere conduit' for his users' traffic. This shielded him from direct liability for his users’ copyright violations but not from Störerhaftung - a liability attaching to any party in a position to ‘terminate or prevent’ the infringements. As a result copyright owners had a claim for injunctive relief against McFadden.

The German court proposed three enforcement options: shutting the network, monitoring all traffic, or ending user anonymity through a registration and password system. According to the ECJ only the last of these is consistent with EU law, but such a ‘solution’ will introduce major administrative overhead for providers. Worse still, they could also be saddled with the legal costs incurred in seeking the injunction. In the face of such burdens many operators will shut down...
A Solution in Sight?

The ECJ found that password based restrictions are consistent with EU law, not that they are required by it. The other options, however, would have would have entailed breaches of the E-Commerce rules and fundamental rights. The good news is that this means a domestic solution compatible with EU law is possible. Ideally German legislators would abolish Störerhaftung altogether. A previous attempt at legal reform last June was supposed [German] to deal with this but is regarded as flawed.

An alternative, less comprehensive approach, would be to shift the legal costs of the injunction to the party requesting it. If the bills are paid by the wifi owner, there is an incentive for lawyers to launch actions against every open wifi node in the country. Copyright trolling has history in Germany, where lawyers have leveraged the 'formal system of notice' for cease and desist letters (abmahnungen) into a shakedown system against millions for alleged copyright infringement online. But if the rightsholders must cover their own costs, orders will only be sought against nodes which are a serious source of infringements.
Universal Access: Forever Deferred?

A day before the McFadden verdict, the head of the EU Commission outlined a goal of free wifi throughout Europe by 2020. This will never be achieved by top-down means alone, but will require a user-based movement of connection sharing. The ECJ did not address the situation of individuals who make wifi available without economic motive, but German activists are protecting themselves against risks by technical means. Freifunk, for example, routes user traffic through a virtual private network so that it appears to originate in the Netherlands or Sweden, countries where Störerhaftung does not exist.

Universal access to the net will ultimately require curbing the power of a copyright industry which sees free networks as a threat to their property, something to be controlled and monitored rather than opened up and shared. In March, the Advocate General, whose reports are intended to guide the ECJ's decisions, rejected the password lockdown approach as inconsistent with a fair balance of the competing fundamental rights involved. He continued:

"any general obligation to make access to a Wi-Fi network secure, as a means of protecting copyright on the Internet, could be a disadvantage for society as a whole and one that could outweigh the potential benefits for rightholders."

The ECJ did not follow his advice, and now it's up to legislators to fix what's broken.
Click here to view the source article.
Source: Electronic Frontier Foundation, Alan Toner, 26 Sep 2016

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