Graduated Response in Ireland and UK

By EDRi · June 2, 2010

This article is also available in:
Deutsch: [Three Strikes in Irland und Gro├čbritannien | http://www.unwatched.org/node/1969]

Irish Service Provider Eircom announced on 24 May 2010 its decision to
introduce a voluntary graduate response procedure that would end up in
shutting down broadband Internet connections of its clients who are
considered to illegally download music.

The decision comes after the company concluded an out of court settlement
with the Irish Recorded Music Association (IRMA) in 2009 by which the ISP
agreed to introduce a graduated response scheme for copyright
infringers. Although challenged by the Data protection Commissioner, the
mechanism was accepted by the High Court which ruled that broadband
subscribers’ internet protocol (IP) address did not constitute personal
information.

Under the pilot scheme, Eircom customers illegally sharing copyrighted music
will receive three warnings that may take the form of a letter, an email, a
phone call or even a web popup, after which their broadband service will be
cut off for a year. Eircom will process around 50 infringement notifications
a week, at random.

Mark Mulligan of Forrester Research has pointed out the inefficiency of the
system explaining that at a rate of 50 infringers per week chosen randomly,
the odds of choosing the same infringers a second or third time were very
small. “Unless genuinely compelling legal alternatives are in place (e.g.,
cheap, subsidised all-you-can-eat MP3 subscriptions), enforcement will do
little other than accelerate the off-network trend” also added Mulligan who
considers that the customers will simply give up Eircom services and go to a
different provider. For instance to its competitor UPC which considers there
is no legal basis for monitoring or blocking its subscribers’ activities.

Reporters Without Borders commented: “The current tendency is to put
Internet Service Providers at the centre of efforts to combat illegal
downloading (…) This is also the case with the ACTA, the proposed
international treaty against counterfeiting that is currently being
discussed. The disastrous effect of these initiatives is to turn the ISP
into an Internet policeman.”

The situation is slightly different in UK but not much better. UK
regulator Ofcom recently proposed a draft code of practice that would ask
the major ISPs to draw lists of copyright infringers with names and number
of infringing times. The creation of the code is included in the Digital
Economy Bill and Ofcom said the code should come into force at the beginning
of 2011.

According to the proposal, the music firms and movie studios can request
details from the list in order to decide whether to start action against
serial infringers. The draft code establishes how and when the ISPs covered
by the code (initially fixed-line ISPs with over 400 000 subscribers) would
send letter notifications to their subscribers informing them of allegations
that their accounts have been used for copyright infringement.

Ofcom proposes a three stage notification process for ISPs to inform
subscribers of copyright infringements and the inclusion on a list, required
by a copyright owner, of subscribers which have received three notifications
within a year.

The EDRi-member Open Rights Group together with the Communications Consumer
Panel, Consumer Focus, Which? and Citizens Advice have drafted together a
set of principles they believe should govern the code of practice in order
to ensure that new rules on online copyright infringement properly protect
consumers.

The principles say that sound evidence is needed before any action is taken
and consumers must have the right to defend themselves. “It is imperative
that a system that accuses people of illegal online activity is fair and
clear,” said Anna Bradley, chair of the Communications Consumer Panel.

“The aim should be to encourage suspected copyright infringers to use legal
alternatives” stated Robert Hammond, head of Post and Digital communications
at Consumer Focus while Jim Killock’s, Executive Director of the Open Rights
Group, opinion is that the Government “needs to draw a clear line between
the notifications and potential technical measures. Without this, the
consequence of receiving a notification will be impossible to know. We also
need clarity that customers will be told that running open community wifi
networks is still completely legal and does not open the door to legal
threats.”

Ofcom has started a consultation on the proposals which will be concluded on
30 July.

Eircom to cut broadband over illegal downloads (24.05.2010)
http://www.irishtimes.com/newspaper/frontpage/2010/0524/1224271013389.html

Ireland debuts Fone-a-Freetard lottery- But what’s the point, again?
(28.05.2010)
http://www.theregister.co.uk/2010/05/28/fone_a_freetard_flaw/

Pulling the plug is not the answer (31.05.2010)
http://www.digitalrights.ie/2010/05/31/pulling-the-plug-is-not-the-answer/

ISP introduces “graduated response” leading to disconnection for illegal
downloaders (28.05.2010)
http://en.rsf.org/ireland-isp-introduces-graduated-response-28-05-2010,37583.html

Communications Consumer Panel: Online copyright infringement rules must
protect consumers’ rights, say leading UK consumer groups (28.05.2010)
http://www.tmcnet.com/usubmit/2010/05/28/4815651.htm

Draft code of practice to reduce online copyright infringement (28.05.2010)
http://www.ofcom.org.uk/consumer/2010/05/draft-code-of-practice-to-reduce-online-copyright-infringement/

Ofcom unveils anti-piracy policy (28.05.2010)
http://news.bbc.co.uk/2/hi/technology/10183820.stm

Ofcom ‘letter writing’ consultation is out: the Digital Economy Act rattles
on (29.05.2010)
http://www.openrightsgroup.org/blog/2010/ofcom-letter-writing-consultation-is-out

EDRI-gram: Irish ISP settled to introduce 3 strikes (11.02.2009)
http://www.edri.org/edri-gram/number7.3/3-strikes-ireland