In an open letter to the Irish Recorded Music Association (IRMA), online civil rights organisation Digital Rights Ireland (DRI) has said plans to take 50 individuals to court for allegedly making copyrighted music available to download may not stand up in court because of the ‘automated’ manner in which it scanned individuals’ shared folders and its ability to prove lost earnings for the record companies concerned.
On Tuesday it emerged that IRMA was planning to take legal action against illegal music file shares. If prosecuted under the Copyright Act, 2000 illegal music file sharers could face a fine of up to €1,900 for each song uploaded.
In April IRMA took cases against 17 individuals and companies. Twelve of these settled out of court at an average of €2,500 each. IRMA is still suing a further three and is considering its legal options in the two remaining cases.
Yesterday, however, DRI issued an open letter to IRMA raising issues outstanding since the actions last April.
The first of these issues relates to the manner in which the individuals’ shared folders on their hard drives were entered and scanned. This was done on IRMA’s behalf by a US-based company called MediaSentry. DRI revealed that in at least two cases in Europe — in the Netherlands and France — the use of MediaSentry resulted in the cases being thrown out of court because the use of the technology was not in accordance with the provisions of the European data protection regulation.
In its letter, DRI stated: “Data protection legislation provides that where personal information is processed in countries without adequate protection, those processing the information must take part in a ‘safe-harbour’ scheme. MediaSentry apparently does not operate within the safe-harbour scheme for data protection, although obliged to do so. As such, it has not agreed to handle EU citizens’ data in accordance with the European data protection regulations.”
DRI cited a case in the Netherlands where the court found that the use of MediaSentry to scan users’ shared folders and process the results was not in accordance with the provisions of European data protection regulation. MediaSentry does not confine its scanning to copyrighted music files, but also scans personal files of the computer owner. It therefore found that the application to the court to force internet service providers to identify their users could not be granted, as the company in question and the record labels it represents could not rely on evidence gathered unlawfully.
In France, the Commission Nationale de l’Informatique et Libertes (CNIL) went further, announcing on 24 October that it would not permit the automated monitoring of users of peer-to-peer (P2P) file-sharing systems. The CNIL concluded such monitoring could lead to “a massive collection of personal data” and allow “exhaustive and continuous surveillance” of P2P sites “beyond that was necessary for the fight against piracy”.
In its letter DRI said: “The European law relating to data protection is the basis of our laws in Ireland, and so these are relevant, though non-binding, precedents for our courts. IRMA may have a case to answer. Therefore the way in which they obtained the identities of the individuals to whom they have written could preclude them from relying on that information in court.”
In terms of IRMA achieving an average settlement of €2,500 from its actions in April and the potential fine of up to €1,900 for each song uploaded under Copyright Act, 2000, DRI makes the point that this statutory fine relates solely to criminal matters, while IRMA is currently engaged in civil litigation where there is no such legislative penalty.
DRI stated: “In the courts in Ireland, you can only get compensation for civil losses you can prove you have suffered. To succeed in the court, IRMA would have to prove that its members — the record labels in Ireland — had lost, from the specific individual before the court, a specific sum.
“As it is only the record labels that are suing the file sharers, it is incorrect to base the damages on the retail price. IRMA cannot claim for the portion of the money that might have gone to retailers, distributors or manufacturers. They can only claim for the profit on each CD that they can prove was not sold as a direct result of a specific individual making files available for sharing.
“To date, all IRMA have produced by way of justification for their claims of losses, has been to claim a causal link between the rise in file sharing and the fall in revenues since 2001. However the record industry has complicated economics and the reasons for the downturn in the Irish marketplace are manifold,” DRI said, pointing out that many music enthusiasts now bypass the Irish music industry altogether, buying their CDs from abroad through the internet and retailers such as CD Wow, which has 120,000 registered Irish users.
By John Kennedy