“Music labels lose downloads case” as Irish High Court reverses its earlier decision

November 2010

Record labels, internet

The extraordinary and wonderful IPKat reports in detail on an article in the Irish Times (11/10/2010).

The story is a sequel to the efforts made in Ireland to get a “three strikes” policy up and running in the Emerald Isle in respect of unauthorised copying and file-sharing by internet users. Big-name recording companies Warner Music, Universal Music, Sony BMG and EMI Records brought an action in which they sought to have unauthorised internet copyists identified and then cut off, but in today’s High Court judgment Mr Justice Peter Charleton held that there was no legal basis for such relief in Ireland.

According to the press report, the judge agreed that online infringement not only undermined the recording companies’ business but “ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living. It is destructive of an important native industry”. However, there were no laws in place in Ireland to enforce disconnections over illegal downloads despite the record companies’ complaints being merited. He also said this gap in legislation meant Ireland was not complying with European law.

Meanwhile defendant internet service provider UPC predictably said it would work to identify and address the main areas of concern in the file-sharing debate, doing everything it could, short of actually being helpful: “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 principle which provides that an internet service provider cannot be held liable for content transmitted across its network and today’s decision supports the principle that ISPs are not liable for the actions of internet subscribers”.
It is not yet known what effect this decision will have on ISP Eircom’s agreement with record labels, which it settled on out of court last year. Meanwhile the recording companies have consoled themselves with the small solace that for once they are characterised as occupying the moral high ground.

Mr Justice Peter Charleton (EMI and others v UPC) said that there was no basis upon which the owners of sound and video recording copyrights could successfully press the defendant internet service provider to prevent the unauthorised and infringing uses made of materials in which the companies owned the copyright. Of particular interest to readers are what the judge says at paras 135 to 137 of his decision:
135. There were two prior judgments of the Court in relation to issues related to this case. In EMI Records (Ireland) Limited v. Eircom Limited [2010] IEHC 108, (Unreported) High Court, Charleton J., 16th April, 2010), as has been previously stated, a similar action had been brought against  Eircom, as the largest internet service provider in the State. This was settled on the basis of a three strike policy that is fully set out in that judgment. The Court was asked to determine the capability of aspects of that settlement with the Data Protection Acts 1988-2003, three issues having been raised in correspondence by the Data Protection Commissioner. In the light of the evidence in this case, and the conclusions that the Court has reached, the Court would wish to make it clear that this judgment is unaffected. I have reconsidered it in the light of the evidence and submissions in this case and I am of the view that the judgment is correct.
136. A different conclusion arises in relation to the judgment of the Court in EMI (Ireland) Limited v. Eircom Plc [2009] IEHC 411 (Unreported), High Court, Charleton J., 24th July, 2009). That judgment was, as the first 80 paragraphs of it indicates, delivered extempore, having heard, as I said, only one side of the case. In settling the litigation, EMI and Eircom agreed that an application would be brought to block access to ‘The Pirate Bay’ website on the facilities of Eircom, as an internet service provider. The conclusion I reached in that judgment, that I was entitled as a matter of law, to block access to that site, was arrived at in the absence of argument to the contrary by Eircom. While Eircom did not consent to the judgment, at the same time, they appeared in court and offered no argument against the analysis in favour of the grant of an injunction: this position of not arguing against the injunction, I understand, was part of the terms of the settlement between those parties. Counsel for Eircom was thus constrained into offering no opposition to the argument.
137. Having fully considered the issue of blocking a site as variant as The Pirate Bay, I regret that my previous judgment in the matter was wrong. The legislative basis enabling me to act in that way does not exist in Irish law as it exists in other European jurisdictions. The parties to that case may wish to reapply, or they may be content that The Pirate Bay should be blocked through the channels of Eircom. No order as to costs was made in that case, as the application was uncontested and costs were not sought as a matter of consent”.

The IPKat can’t help feeling sorry for the recording companies and for those whose employment and well-being depends on them, but the technology that facilitates illicit downloads and file-sharing is now available and isn’t going to disappear.  New business models for investing in and promoting recordings aren’t going to magic themselves into existence, and a public that has become addicted to free access to whatever it wants on the internet isn’t willingly going to pay. The old order is dead, but the shape of the new order has yet to crystallise.  Meanwhile, it looks as if it’s better to be a conduit than a creator.
Jeremy Philips writing at http://ipkitten.blogspot.com/2010/10/why-be-creative-if-you-can-be-mere.html and at www.the1709blog.blogspot.com .

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