UPC to continue to fight music giants over ‘three strikes’ policy

19 Apr 2010

Cable broadband player UPC said it will continue to ‘vigorously’ defend itself in the ISP liability proceedings taken against it by the big four music companies despite Judge Peter Charleton’s ruling.

The judgment by Judge Peter Charleton in the High Court on Friday provided a strong defence of the rights of copyright holders and effectively swept aside concerns of the Data Protection Commissioner Billy Hawke that this could result in the invasion of privacy.

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

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

However, in a statement last night, UPC, which has been fighting the music industry on the basis the judgment applies to Eircom only – said that Friday’s judgment by Charleton clarified the position with regard to the Data Protection Commissioner’s concerns on whether IP Addresses are ‘personal data’. “The judge concluded that they are not,” UPC said.

“What’s important to remember is that this judgment relates solely to a settlement agreement between the four music rightsholders (EMI records (Ireland) Ltd., Sony B.G. Music Entertainment (Ireland) Ltd., Universal Music Ireland Ltd., & Warner Music Ireland Ltd., and  Eircom Limited.

“To be clear, this judgment does not extend to other ISPs.

“Why? Because the decision was limited to the data protection issues, but in passing the Court made a number of statements concerning ISP liability for peer-to-peer copyright infringement. These comments were made in circumstances where the issue of an ISP’s liability for the acts of its subscribers was not fully argued before to the Court and therefore did not form part of Friday’s judgment. 

“In particular, it is notable that the Court’s comments did not address the Irish and European provisions concerning an ISP acting as a ‘mere conduit’ and as such not being responsible for controlling infringing content that subscribers may channel through its network.

UPC said 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. 

“UPC’s position remains unchanged following Friday’s judgment. UPC will do everything necessary to comply with its legal obligations but will not voluntarily agree to implement measures such as a graduated response system in the absence of a legal obligation to do so.

“UPC considers that in these circumstances there is no basis under Irish or European law requiring an ISP to monitor or block subscriber traffic on its network. UPC will continue to vigorously defend the ISP liability proceedings taken against it by the music companies,” the company said.

By John Kennedy

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