Music Industry Knocked Back In Irish File-Share Case

A High Court judge in Ireland has ruled that the practice of temporarily disconnecting illegal file-sharers from the Internet cannot be legally enforced in the country.

The ruling comes after five major record companies – EMI Records (Ireland), Sony Music Entertainment Ireland, Universal Music Ireland, Warner Music Ireland and WEA International Inc – brought an action against Internet service provider UPC, intended to compel the ISP to enforce a “three strikes” rule, culminating in illegal file-sharers being disconnected from the Internet.

Mr Justice Peter Charleton (left), while noting that online piracy was “ruining the ability of creative people in Ireland to earn a living,” said that the Copyright and Related Rights Acts 2000 made no provision for the blocking, diverting or interrupting of Internet communications intent on breaching copyright.

Moreover, Charleton warned that any attempt by industry members to disconnect illegal file-sharers could be in breach of European legislation.

Copyright owners will suffer

The ruling is seen as a blow for the music industry, which has been lobbying for some time for stricter laws to act as a deterrent against piracy. Meanwhile UPC said in a statement that it does not condone piracy, and has always taken a strong stance against illegal activity on its network.

“Our whole premise and defense focused on the mere conduit principal which provides that an Internet service provider cannot be held liable for content transmitted across its network,” UPC said in a statement.

Back in April, the same Justice Charleton gave the go-ahead for Ireland’s largest ISP Eircom to operate a three strikes disconnection policy to deal with illegal file-sharers. In that case it was decided that Eircom’s use of software such as “DetectNet” to identify copyright-infringers by their IP addresses did not break data protection laws.

Charleton approved the agreement because he said the record labels had “no interest at all in using this process to find out who the copyright infringers are”, but rather they were “interested in having the protocol work so that the plague of copyright infringement may be undermined”. He went on to defend the rights of copyright owners, describing the exploitation of one’s own original creative endeavour as a “human right” and a “universal entitlement”.

Digital Economy Act

Meanwhile in the UK, Ofcom’s attempts to draw up a code of conduct in accordance with the Digital Economy Act have been fraught with difficulty. The first draft of Ofcom’s code of practice for tackling copyright infringement over the Internet states that the IP address of anyone caught committing online copyright infringement three times will be added to a ‘blacklist’ held by their service provider. Copyright holders, including music firms and film studios, will then be able to access the list and issue a court order to begin further legal action.

In its description of the three strikes rule, Ofcom’s code made no suggestion that individuals’ Internet connections should be cut off as a punishment for file-sharing, as was previously suggested in the government’s Digital Economy Bill.

Despite this, however, the draft code has been described as unlawful by the Open Rights Group, because it fails to set any proper thresholds for identifying serious infringers, for carrying out the appeals process or for the contents of letters sent to infringers.

“The Act requires the evidential standards to be defined – but Ofcom have passed the buck,” said Jim Killock, executive director of ORG. “How is anyone meant to trust this code if we can’t see how the evidence is gathered or checked?”

BT and TalkTalk have also launched a legal challenge against the law, and many UK citizens have used the government’s “Your Freedom” site to call for the repeal of the Act.