Ireland's largest ISP, Eircom, is being sued by the four major record companies, who are demanding that it take action to prevent users from illegally downloading or sharing music. TJ McIntyre reports and reflects on these new developments.
EMI, Sony, Warner and Universal have brought an action in the High Court seeking an injunction which would require Eircom to put in place a filtering system to block illegal peer-to-peer downloads. While there have previously been cases aimed at individuals who are uploading music, this is the first Irish action to target an ISP. This article briefly considers the background to, and possible implications of, this case.
The music industry in
In 2005 the music industry changed tack and brought the first action before the Irish courts seeking to identify 17 individuals alleged to be illegally filesharing. In that case the High Court granted disclosure of these identities under the Norwich Pharmacal jurisdiction. Two further applications were made to the High Court in 2006 and 2007, identifying some 99 users in all. However, despite the significant publicity which these actions received, they do not appear to have any more than a short-term effect in deterring Irish users from sharing music.
At this point, and in line with the strategies pursued by the industry body IFPI elsewhere, the music industry in Ireland appears to have decided to shift the focus of its attention from the end user towards the intermediary, and in particular towards seeking to compel ISPs to police the behaviour of their users.
The strategies adopted to target intermediaries have varied. In Denmark, for example, the music industry adopted a litigation oriented approach and succeeded in convincing the courts to require ISPs to disconnect users who were shown to be sharing files and to block access by their subscribers to particular sites alleged to host or link to infringing content. Conversely in the UK the industry has so far avoided litigation against ISPs, seeking instead to persuade ISPs to sign up to a ‘three strikes and you're out’ system for disconnecting users after three complaints, with the threat of legislative intervention should they fail to do so.
However, the most radical strategy thus far adopted is that used in Belgium where, in SABAM v Scarlet (Tiscali) a court, apparently for the first time in Europe, ordered an ISP to introduce a system of filtering which will monitor users' activity, detect attempts to share infringing files and block those transfers. This is a significantly more demanding requirement than, for example, the Danish requirements that ISPs take steps on a reactive basis to prevent access to particular sites or to cut off particular users identified by the music industry – instead it introduces a novel requirement on ISPs to proactively monitor the activities of their users.
The Irish litigation is significant, therefore, insofar as it essentially mirrors SABAM v Scarlet (Tiscali) in seeking to require Eircom to introduce monitoring and filtering of its subscribers' use of peer-to-peer networks. It will not have escaped the attention of the IFPI that if successful this action will set what may be the first common-law precedent on this point.
The legal basis relied upon for the Irish litigation is s 40 of the Copyright and Related Rights Act 2000 which provides:
‘the provision of facilities for enabling the making available to the public of copies of a work shall not of itself constitute an act of making available to the public of copies of the work ... [However] where a person who provides [such facilities] is notified by the owner of the copyright in the work concerned that those facilities are being used to infringe the copyright in that work and that person fails to remove the infringing material as soon as practicable thereafter that person shall also be liable for the infringement.’
Although the language used here - ‘remove the infringing material’ - appears to be more apt to situations where ISPs act as hosts, it appears that the plaintiffs will argue that it should be read in light of Directive 2001/29 on Copyright in the Information Society and Directive 2004/41 on the Enforcement of Intellectual Property Rights to include situations where the ISP merely provides internet access.
The Irish litigation follows SABAM v Scarlet (Tiscali) precisely insofar as it does not ask the court to mandate any particular solution but suggests that Eircom could meet its supposed obligations by deploying the Audible Magic ’fingerprinting’ software to detect alleged infringing file-sharing. Although the logic of the music industry case is that Eircom is itself liable under s 40 of the Copyright and Related Rights Act 2000, the plaintiffs do not seek damages. However, if their argument is successful it would appear to open the door to claims for damages by other parties such as the movie industry.
As was the case in SABAM v Scarlet (Tiscali), this litigation squarely raises the issue of the tension in European law between the Electronic Commerce Directive's (Directive 2000/31) prohibition on imposing a general obligation on providers to monitor the information which they transmit and store and the possibility under that Directive and the Copyright and Enforcement Directives of awarding an injunction against providers in particular cases.
It also raises the question of whether the obligation contended for – to engage in extensive monitoring of user activities – can possibly be compatible with the right to privacy of users.
If the plaintiffs succeed in their claim that an ISP may be liable if it is aware that its facilities are being used to infringe copyright, then one of the most important issues the court will face is determining what level of awareness is required. Is it enough, for example, that the music industry alleges that file-sharing is taking place but without identifying particular users or files? The precise language of s 40 of the Copyright and Related Rights Act 2000 is important – it refers to the ISP being ‘notified by the owner of the copyright in the work concerned’ and ‘remov[ing] the infringing material’ which suggests that what is required is notice on an individual basis in respect of particular works, rather than a general assertion that some users are sharing files.
There will, of course, also be knock-on effects for ISPs if the plaintiffs succeed. Although the music industry is the most prominent party seeking to protect its intellectual property, a favourable ruling may well lead other copyright holders (such as the movie industry, photographers, book authors and others) to demand that similar filtering systems be put in place for their work, while other parties (such as libel plaintiffs) may well seek to take advantage of any filtering system that is established.
The financial implications are also significant. In SABAM v Scarlet (Tiscali) the technical cost of deploying the Audible Magic fingerprinting system was estimated at €6 per user per year. Given that Eircom has approximately 560,000 broadband subscribers, this would suggest a total cost of approximately €3.3 million per year, before considering any additional costs associated with, for example, redesigning the network to facilitate filtering. The plaintiffs have not volunteered to bear these costs.
In light of these factors, and the importance of this case for both the music industry and ISPs generally, it is likely that any final decision will only be reached after a reference to the European Court of Justice. However, one has to wonder whether by that stage this litigation will already be futile. Peer-to-peer programs which use encrypted transfers are now common. The filtering sought by the plaintiffs could, it seems, easily be defeated by a user move to software which is currently in place. As in many cases before now, technological developments may leave the legal system struggling to catch up.
 Record Number 2008 1601P.
 EMI and ors v Eircom and ors  4 IR 148
  AC 133
 For background see, e.g.,
 IFPI, ‘Court ruling confirms Internet Service Providers must act to stop piracy’, available at http://www.ifpi.org/content/section_news/20060215.html
 IFPI, ‘
 See, e.g., Williams, ‘ISPs demand record biz pays up if cut-off P2P users sue’ The Register
 Court of First Instance of
 Kennedy, ‘Meteor Storms Ahead in Eircom Results’ Silicon Republic