The day the music (piracy) died in Ireland

17 Apr 2010

Three strikes and you’re out! A decision by a judge to allow record companies to hand over the IP addresses of illegal music downloaders to internet service providers clears the way for a widespread crackdown on copyright violation in Ireland.

The judgment by Judge Peter Charleton, which provides a strong defence of the rights of copyright holders, effectively sweeps aside concerns of Data Protection Commissioner Billy Hawke that this could result in the invasion of privacy.

Charelton ruled that allowing the record companies to hand over IP addresses of illegal downloaders was not a breach of the data protection law.

The case follows a judgment last year in a case taken by the big four record companies – EMI, Sony, Warner and Universal – against Eircom.

In his judgment, Charleton said: “The right to be identified with and to reasonably exploit one’s own original creative endeavour I regard as a human right.

“It is completely within the legitimate standing of Eircom to act, and to be seen to act, as a body which upholds the law and Constitution. That is what the Court expects of both individuals and companies.

Internet is only a means of communication

“The internet is only a means of communication. It has not rewritten the legal rules of each nation through which it passes. It is not an amorphous extraterrestrial body with an entitlement to norms that run counter to the fundamental principles of human rights.

“There is nothing in the criminal or civil law which legalises that which is otherwise illegal simply because the transaction takes place over the internet.

“Copyright is a universal entitlement to be identified with and to sell, and therefore to enjoy, the fruits of creative work. It applies to everyone who manages to produce anything copyrightable, from a song to a telephone directory, to a symphony to a film. Were copyright not to exist, then the efforts of an artist could be both stolen and passed off as the talent of another,” Charleton wrote.

In the UK and France, the freezing of illegal downloaders’ internet accounts has been sanctioned by their governments.

The decision by Charleton was welcomed by the International Federation of the Phonographic Industry (IFPI).

Welcoming the judgment, IFPI chairman and CEO John Kennedy said: “This is a hugely important decision that sends a resounding message about the need for creators and artists’ rights to be protected on the internet. It confirms the key principle that intellectual property rights should be protected no differently online than they are in the physical world.

The threat of mass online piracy

“This sends a strong message to governments that are now considering how to help their creative industries address the threat of mass online piracy. In particular, it highlights the viability of the graduated response approach that has recently been adopted through legislation in the UK and France.”

Under the terms of the settlement between Eircom and the music industry group IRMA last year, Eircom agreed to implement a graduated response system to address illegal file sharing. Eircom would send warnings to infringing file sharers with the possible sanction of account suspension for those ignoring the messages and continuing to infringe.

During its implementation, the settlement was referred back to the Court due to concerns raised by Ireland’s Data Protection Commissioner that the settlement could be incompatible with data protection laws.

Charleton’s judgment firmly rejected these concerns and held that the implementation of the settlement is lawful and does not involve a breach of data protection law.

IRMA says this vindicates its position that in the context of graduated response an IP address refers solely to the network address of a computer and is not personal data when in IRMA’s possession.

Following the decision, IRMA and Eircom will now proceed with their graduated response to illegal file sharing which was agreed in February 2009. The first step is an educational and awareness campaign. The system allows for three notifications and the possible sanction of account suspension after three infringements.

€60m losses a year in Ireland

Speaking after the decision, Dick Doyle, director general of IRMA, said: “We are very pleased with this decision today. Resolving this issue has caused six months of disruption to the IRMA/Eircom agreement. We will now proceed immediately to implement the full agreement.”

Willie Kavanagh, chairman of IRMA, added: “The whole music industry, including performers, composers and record labels, has been decimated by illegal peer-to-peer traffic and our losses amount to over €60m per annum.

“Our industry has lost 40pc in sales value between 2005 and 2009, with devastating effects on artists and creativity. Today’s decision is the first step back towards allowing artists to make a living again,” Kavanagh said.

By John Kennedy

Photo: A judge has ruled that allowing record companies to hand over IP addresses of illegal downloaders was not a breach of data protection law

John Kennedy is a journalist who served as editor of Silicon Republic for 17 years