Irish labels take on Eircom

April 2008

Record labels, internet

The Irish recorded music sector’s four major companies – EMI, Sony BMG, Universal Music, and Warner Music (together as the Irish Recorded Music Association) have decided to take Irish Internet Service Provider (ISP) Eircom to court in order to force them to implement countermeasures against piracy. Willie Kavanagh, Chairman of the Irish Recorded Music Association and Managing Director of EMI Ireland, blamed the action on a “dramatic and accelerating decline” in the Irish music industry’s income: 30% over the past six years, up to 2007. Kavanagh attributed a “substantial portion” of that decline to the increasing use of broadband, facilitating a sharp increase in the use of download services, like BitTorrent or LimeWire. Sales dropped from €146m ($224m USD, not counting inflation) in 2001 to €102m ($157m USD) in 2007, said Kavanagh. The case represents the first of its kind in Eire with record labels taking the ISP to court instead of individual file swappers and attempts to compel Eircom, under the Irish Copyrights and Related Rights Act of 2000, to implement specific countermeasures to prevent its network from being exploited for piracy. Last October Eircomm said that it was in no position to consider monitoring users and was under no legal obligation to police traffic on its network. The recent study by UK-based law firm Wiggins found that piracy could drop as much as 70% if ISPs took an active role in monitoring users and threatening them with warnings and both the UK and French Governments are looking at schemes of ensuring individuals who repeatedly download illegally lose their ISP account. The new litigation follows a successful court bid by IRMA last year to force Eircom to reveal the identity of five individuals accused of file sharing.

As the major record companies in Eire take Eircom to court, the Swedish parliament is considering forcing ISPs to turn over the details of serial illegal downloaders. And it appears that ISPs and copyright holders in Japan are at least speaking although reports that Japan’s largest four ISPs will ban flagrant copyright infringers seem a little premature. A spokesman for Japan’s Telecommunications Carriers Association, which represents many of the country’s internet providers denied any such commitment had been made by their members. According to Billboard, Yoshoio Kojima of the country’s songwriter society JASRAC has confirmed that the music firms will also be take part in talks with the ISPs next month, and that the music and net players hope to form a joint committee tasked with “resolving this P2P problem”. But in Spain and now Germany the courts have restricted the circumstances in which internet service providers should be obliged to share the identity of its customers with record labels and film companies and in Germany the court tool the line that web users’ personal information should only be made available as a matter of course in “heavy” criminal cases such as terrorism, murder and child pornography. In Italy the data protection office also similarly restricted access.

See Productores de Música de España (Promusicae) v Telefónica de España C275/06 Music Law Updates March 2008,+Demand+Music+Piracy+Filtering/

The wonderful CMU Daily (18/03/08) summed up a number of stories in this area and we thank them!

Hmm, this is interesting. Billboard is reporting unconfirmed media reports in Japan that suggest that four Japanese internet service providers have agreed to cut off net users who “habitually use” file-sharing applications to access illegal sources of unlicensed music. It’s not clear which ISPs are involved and who they have agreed such action with, and no net firm, nor the Recording Industry Association Of Japan, nor the country’s songwriter body JASRAC have, as yet, commented (see above for an update here). But if the reports are true it could have important ramifications in the music industry’s wider bid to persuade ISPs to take a more proactive role in policing illegal content distribution online by setting a precedent that monitoring users’ internet activity, and warning and ultimately cutting off customers who illegally file share, is both possible and desirable. If nothing else it would act as a good pilot as to the practicalities of such an initiative, which might provide the record industries with a stronger case for persuading the ISPs elsewhere in the world to act (or, if it’s a complete disaster, the ISPs with a stronger case not to act).

The unconfirmed reports from Japan come as officials in Italy have limited the power of the record companies in the P2P domain. There the President of Italy’s national body for “guaranteeing the protection of private data” overturned an earlier court ruling that forced ISPs to reveal the identities of customers who were believed to have been file sharing. An Italian magistrate had earlier granted German record label Peppermint the right to find out the real addresses of 300 suspected file sharers, about whom the label only knew the IP addresses. But data protection chief Francesco Pizzetti overturned the ruling.

Whereas the move in Japan, if true, would see the battle against P2P file sharing in that territory move into a whole new era, whilst the Italian ruling is a backwards step. As much previously reported, record labels need ISPs to reveal the identities of suspected file sharers because their own monitoring can only ever identify such people by their IP address, and you can’t bring a copyright infringement action against an IP address. Courts in most territories have been willing to force ISPs to hand over such information, albeit on a case by case basis rather than as a matter of course. However, it’s not unknown for courts in some jurisdictions to not comply with the music companies’ requests for information – most recently the Spanish courts ruled that ISP Telefonica did not have to reveal details of suspected file sharers there, that ruling coming after the European courts ruled that European law puts no obligation on the ISPs to comply, making the whole issue one for national and not European law. Which is why Italy (and Spain) can say ISPs do not have to reveal file sharers’ identities, while courts in other European jurisdictions, here in the UK for example, and, as we shall see, in Sweden, have said they do. Italian consumer rights groups who have been critical of the record companies’ heavy handed approach to the P2P problem welcomed Pizzetti’s ruling while, needless to say, the boss of Italy’s record industry trade body FIMI was less happy, telling Billboard: “The whole issue of P2P needs to be addressed in Italy, but this particular decision is very strange. As far as we’re concerned, it’s as if a person is apprehended for shop-lifting and the authorities, instead of investigating the thief, investigate the police officers who made the arrest”.

To Sweden, and clarification by political types there that the courts should force ISPs to reveal consumer identities when illegal file sharing is suspected, though again on a case by case basis. The country’s Justice Minister Beatrice Ask and Culture Minister Lena Adelsohn Liljeroth both put their name to an article this week that said: “We need to… stand up for musicians, authors, filmmakers and all other copyright owners so that they have the right to their own material. Courts… shall be able to demand an internet provider to give the copyright owner information about who had a certain IP address when it was used for infringement on the Internet”. Although the moves in Sweden to ensure the courts aid the record industry in the whole P2P battle will be good news to the record industry compared to the current situation in Italy and Spain, ISPs there, like here, continue to resist calls for them to introduce day to day monitoring of internet use and to issue routine warnings for illegal file sharing, ie the measures reportedly being considered in Japan (measures which have, as also previously reported, had some support from political types here and in France). Asked to comment on Ask and Liljeroth’s comments, a spokesman for Swedish ISP Com Hem said their proposals were good in that they kept the issue of policing P2P in the court room, rather than making ISPs “act as police”, adding: “It’s good in the way that we don’t have to judge whether an Internet activity is legal or illegal”. As so the whole P2P thing continues to develop. Albeit in different ways in different countries.

CMU Daily 18 March 2008

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