Irish Record Industry Sues ISP for Illegal File-Sharing on its Network

Angry over its refusal to use Audible Magic to voluntarily filter copyrighted material from its network.

Early last week it was reported that Eircom, the Ireland-based ISP, had formally rejected claims by the Irish Recorded Music Association (IRMA) that it be held responsible for any instances of copyright infringement that may occur on its broadband network.

The case was first initiated last March and it was just last week that Eircom formally filed a defense rejecting the IRMA claims by arguing that it’s not responsible for the illegal actions of its customers. The judge in the case, Mr Justice Peter Kelly, said he expected for the trial to be held sometime in July.

EMI Records (Ireland) Ltd, Sony BMG Music Entertainment (Ireland) Ltd, Universal Music (Ireland) Ltd, and Warner Music (Ireland) Ltd each contend under the Copyright and Related Rights Acts 2000 that Eircom is responsible for the copyright infringement occurring on its network by illegal file-sharing customers since it refuses to use filtering technology or other appropriate measures to voluntary block, or filter, copyrighted material from its network.

The record companies argue that software like Audible Magic Corporation can effectively filter P2P traffic and block specific copyrighted material from being illegally shared.

Eircom, on the other hand, counters that it was not in a position to run the Audible Magic software on its servers. It also said it was not on notice of specific illegal activity which infringed the rights of the companies and had no legal obligation to monitor traffic on its network.

For its part, the Digital Rights Ireland (DRI) has condemned the court action and its chairman, a barrister, said that the case has no basis in Ireland’s Copyright Act.

"ISPs are intermediaries. They are not, in law, responsible for what internet users do, any more than [the post office] is responsible for what individuals send in the mail," said TJ McIntyre, chairman of DRI. "In fact, European law specifically states that they may not be put under a general obligation to monitor the information they transmit."

The DRI continues by pointing out the reasons why, the IRMA’s case is so detrimental to the people and to the business community of Ireland. It writes:

Privacy

This technology will result in ISPs being obliged to monitor everything internet users do – in effect, acting as private censors for all users without any warrant or even mere suspicion that a particular user is doing something wrong. If the music industry has evidence that a particular person is sharing copyrighted files then they can and already do take action against that person. If they do not have that evidence then they should not be demanding that ISPs monitor innocent users.

Cost

Estimates based on other jurisdictions suggest that, if successful, this action will cost Eircom at least €3,300,000 per year – which will be reflected in higher costs for Irish broadband subscribers. It is remarkable that the music industry – private, profit making companies – now seek to have Irish broadband users pay for the costs of its enforcement. (This figure is based on the Belgian case Sabam v. Tiscali where it was found that using Audible Magic to filter would cost approximately €6 per user per year. Eircom has approximately 560,000 broadband subscribers. Of course, this may be a complete underestimate of the costs if Eircom has to redesign its network to facilitate monitoring.)

Overblocking

This filtering technology is not perfect. Some copyrighted files will slip through the net. But more worryingly, many perfectly legitimate files are likely to be blocked. Files that are out of copyright, excerpts used for documentary purposes, even home videos where music is playing in the background – all of these are likely to be blocked by this technology, infringing freedom of expression.

Damage to Irish knowledge economy

This action will harm Ireland’s reputation as a web- and internet friendly country. By requiring companies to police the actions of their users – a duty which they are not subject to in other jurisdictions such as the US – it will harm inward investment and encourage technology firms to relocate elsewhere.

Futility

The music industry’s proposal is technically very easy to circumvent. If implemented, Irish file sharers will simply move to encrypted peer to peer systems, which are impossible for the ISP to monitor. This will completely negate any benefit of the system while still leaving Irish consumers to pay its costs.

Function creep

Once a system is in place to monitor internet users and prevent them from transmitting certain things, what other interests might like to take advantage of it? Who else might like to block certain files? The Church of Scientology, for example, has a track record of trying to silence criticism by claiming that its copyright has been infringed, while the makers of electronic voting machines have also abused copyright law to try to conceal flaws in their technology.

It’s agreed that the record industry is in dire straits, that it’s losing increasing amounts of money annually, but is this really everybody else’s burden? If I own a business and the internet suddenly began robbing me of income for whatever reason is it fair for me to then mandate that every transmission on it be inspected to make sure that every cent of my profit is protected? No,and it’s simply ludicrous to suggest otherwise.

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