ENDitorial: Irish court rejects music industry demands for three strikes

By EDRi · October 20, 2010

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Deutsch: [ENDitorial: Irisches Gericht lehnt Antrag der Musikindustrie auf Three-Strikes-Regime ab | http://www.unwatched.org/node/2283]

On 11 October 2010, Mr. Justice Peter Charleton of the Irish High Court gave
judgment in EMI and Others v. UPC , rejecting music industry claims that
broadband provider UPC was responsible under Irish law for policing their
users and preventing copyright infringement by them.

In this case, EMI, Sony, Universal, Warner and WEA sought an injunction
which would require UPC to introduce a three strikes system and to block
users’ access to The Pirate Bay. This followed the music industry’s success
in an earlier case against Eircom (Ireland’s largest ISP). In that case,
Eircom settled and agreed to establish a three strikes system and not to
oppose the application to court to block access to The Pirate Bay. In two
subsequent decisions arising from that settlement, Charleton J. held that
(a) the court had the power to order Eircom to block access to particular
sites and (b) that the three strikes system which was agreed between Eircom
and the music industry did not conflict with data protection law.

Unlike Eircom, however, UPC fought the music industry action, leading for
the first time in the Irish courts to a full, contested hearing on the
obligations of internet service providers in relation to filesharing.

In a lengthy judgment, Charleton J. found that UPC users were engaged in
extensive illegal downloading and uploading. He found that it would be
possible for UPC to effectively reduce this by making use of systems such as
CopySense peer to peer filtering or the detection and disconnection of users
who are making available infringing copies, and made a specific finding that
such systems would be accurate, practicable and not disproportionately
expensive or burdensome. He found that other remedies available to the music
industry, in particular identifying infringing users and bringing action
against them, were inadequate. He also found that no privacy interest was
implicated by the monitoring which these systems would entail.

Charleton J. also held that the blocking of The Pirate Bay would be “both
educative and helpful”, rejecting expert testimony that blocking would be
easily evaded and futile.

Notwithstanding these findings, however, Charleton J. held that, under the
Irish law, the court did not have the authority to grant an injunction
requiring an ISP to introduce such systems or to block access to particular
sites. The relevant Irish law was identified as section 40(4) of the
Copyright and Related Rights Act 2000, which provides that:

“where a person who provides facilities [to make a work available to the
public] is notified by the owner of the copyright in the work concerned that
those facilities are being used to infringe the copyright in that work and
that person fails to remove that infringing material as soon as practicable
thereafter that person shall also be liable for the infringement.”

The court found that this section, referring to the removal of infringing
material, primarily envisaged situations where a defendant hosted material
rather than simply permitted transit of material. Consequently, it could not
be used to justify the grant of an injunction in relation to transit, and
Charleton J. acknowledged that his earlier decision ordering Eircom to block
access to The Pirate Bay was incorrect.

Charleton J. went on to consider the effect of the European law and in
particular the E-Commerce Directive and the Copyright Directive. He found
that Article 15 of the E-Commerce Directive (prohibiting a general
obligation to monitor) was irrelevant, holding that the use of deep packet

“is not the seeking of information which is in the course of transmission.
Instead, it identifies the nature of transmissions, whether encrypted or
otherwise, by reference to the ports which they use, and the protocol
employed, so as to identify peer-to-peer communication. UPC does this
already for legitimate commercial purposes related to the management of
transmissions. If it suited, they could also easily identify the file # of
copyright works and block them or divert the search in aid of theft to a
legal site. This is not a general search for information.”

He also held that UPC was a mere conduit for the purposes of the E-Commerce
Directive, but that this, nevertheless, left open the possibility for a
court to require an internet provider to terminate or prevent an
infringement, and went on to hold that the Copyright Directive required
Member States to introduce laws which would provide for these remedies.
Consequently, as the Irish law did not provide for these remedies Charleton
J. found that Ireland “is not yet fully in compliance with its obligations
under European law”.

Following this judgment, and in particular its finding that Irish law has
failed to correctly implement the Copyright Directive, it is likely that the
issue of filesharing will be high on the political agenda in Ireland.
Representatives of the music industry have already called for legislative
intervention, and have also threatened to sue the Irish state for losses
caused by failure to tackle filesharing.

Against this, however, the judgment can be criticised on a number of fronts.
Concern has been expressed about the figures relied on by the judge for the
extent of piracy, which have been described as inflated. The confident
description of deep packet inspection as not involving a “general duty to
monitor” is also unusual in light of the preliminary reference to the
European Court of Justice in SABAM v. Scarlet (Tiscali) in which this would
seem to be a live issue. Similarly, the claim that no privacy issues are
involved in three strikes and blocking systems seems to be undermined by the
fact that the Data Protection Commissioner took no part in these proceedings
so that an important viewpoint went unrepresented, and also fails to take
account of developments elsewhere (such as Switzerland) where opposite
conclusions have been reached.

It is also unclear where this leaves the three strikes and blocking systems
which Eircom has already introduced. To date there has been no indication
from Eircom as to whether it intends to continue with these systems despite
the ruling, and despite the competitive disadvantage which it would appear
to impose on it.

EMI v. UPC (Unreported, High Court, 11.10.2010)

John Collins and Ronan McGreevy, “Music labels to rethink fight against
piracy” (12.10.2010)

Ronan McGreevy, “U2 manager criticises UPC defence”, Irish Times

Justin Mason, “Aslan’s hard times, from the UPC judgment”, taint.org

Rossa McMahon, “Strike 1?”, A Clatter of the Law (13.10.2010)

(Contribution by TJ McIntyre – EDRi-member Digital Rights Ireland)