There was bad news this week for the world's biggest record producers, as the Irish High Court ruled that the 'three strikes' rule for illegal filesharers was not enforceable in Ireland, despite the damage piracy was causing to the creative industries.
The decision was a blow to Warner Music, Universal Music Group, Sony BMG and EMI which had brought the case against the country's third largest broadband provider, UPC. The big producers were after a legal precedent that would force ISPs to cut off the Internet connections of illegal filesharers; they didn't get it.
Justice Peter Charleton delivered the judgement on Monday this week, and though he acknowledged that Internet piracy was no good thing, he determined that there were no actual laws in Ireland to allow the disconnection of pirates from the net, and that any attempts to do so could be in breach of European legislation. The making of these pesky laws is a matter for legislators, not the courts.
In his judgement Justice Charleton said, "I am satisfied that the business of the recording companies is being devastated by internet piracy. This not only undermines their business but ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living."
He said that the evidence established definitively that copyright was being infringed on the UPC network, and that UPC should be held accountable for this in some way. "I do not accept any of the evidence from UPC as to its unawareness of this process," he said. "Nor do I accept that it has not thought about this issue and considered whether it is making a profit from it." Justice Charleton, it would seem, is no friend of UPC, but his hands are tied.
A spokesperson for UPC said that the company has reiterated that it will continue to work with key stakeholders with a view to identifying and addressing the main areas of concern of all relevant parties in the filesharing debate.
"UPC has repeatedly stressed that it does not condone piracy and has always taken a strong stance against illegal activity on its network. It takes all steps required by the law to combat specific infringements which are brought to its attention and will continue to co-operate with rights holders where they have obtained the necessary Court Orders for alleged copyright infringements.
"Our whole premise and defence focused on the mere conduit principal which provides that an Internet service provider (ISP) cannot be held liable for content transmitted across its network and today's decision supports the principal that ISPs are not liable for the actions of internet subscribers."
Of course groups like the Irish Recorded Music Association want to see this changed, and have vowed to carry on the fight to those legislators who had "failed in their obligations". Its Chairman Willie Kavanagh said the Irish state had failed to protect the constitutional rights of copyright holders by not implementing EU Copyright directives correctly.
And its Director General Dick Doyle said, "The High Court has acknowledged that Irish artists, composers and recording companies are sustaining huge losses and Internet providers are profiting from the wholesale theft of music.
"The Judge made it very clear that an injunction would be morally justified but that the Irish legislature had failed in its obligation to confer on the courts the right to grant such injunctions unlike other EU states. We will now look to the Irish Government to fully vindicate the constitutional rights of copyright holders and we reserve the right to seek compensation for the past and continuing losses from the State".
Meanwhile Geoff Taylor, Chief Executive of the BPI, described the decision as a "setback for the Irish music business that due to Ireland's inadequate implementation of European directives, the judge did not believe he had the power to order UPC to implement a graduated response solution, which the judge considered to be both proportionate and effective".
Of course, though the music industry would have preferred the judgement to go the other way, it still provides some powerful ammunition for those seeking extreme measures against illegal filesharers. The details of the judgement could prove highly effective for making the case to those legislators who have let down the industry so badly.
The judgement acknowledged that piracy is devastating, it determined that the methods of identifying illegal filesharers (based on IP address) were reliable, and it said that graduated response and network filtering would be effective and proportional. Added to this the acknowledgement that ISPs were knowingly making profits off illegal activity, and a full package of punishing infringers, with ISPs footing the bill, becomes clear.
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