Four major record companies are taking Eircom, Ireland's largest internet service provider (ISP), to the Commercial Court in Dublin over illegally downloaded music. The action against Eircom is being brought in the name of the Irish subsidiaries of EMI Records, Sony BMG Music Entertainment, Universal Music and Warner Music, but is actually organized by the Irish Recorded Music Association (IRMA), a trade organzation. Record companies and ISPs across Europe will closely monitor the developments in this case, which is the first Irish case aimed at ISPs for allowing illegal downloads, rather than individual file-sharers.
The Irish music industry's fight against illegal music downloads started in 2005 when it applied to the Commercial Court seeking the identification of 17 individuals who were using Eircom's facilities to engage in illegal file-sharing. Similar successful applications were made in 2006 and 2007, where the Commercial Court ordered Eircom and other ISPs (Digiweb, BT and Irish Broadband among others) to disclose the identity of alleged file-sharers. Ninety-nine users were identified in total between 2005 and 2007.
The record labels are arguing that Eircom is infringing copyright because its network makes copies of music available without the owners' consent. They are seeking injunctions under the Copyright and Related Rights Act 2000 requiring the ISP to use a filtering system that would block illegal downloads. IRMA claims that music sales in Ireland are in steep decline and that this is a direct result of illegal file-sharing over the internet. It said that music sales in Ireland were €146 million in 2001 but only €102 million last year.
Eircom's legal representatives replied that their client was not on notice of specific illegal activity that infringed the music companies' rights and that it was under no legal obligation to monitor all the traffic on its network. They filed a defence rejecting the claims and saying that the plaintiff record companies had established no cause of action against Eircom. According to Eircom the record companies had not identified "infringing material", and even if they had, then Eircom submitted that this material could not be removed without causing damage to its systems or internet services.
This court action has been condemned by Digital Rights Ireland (DRI), a civil rights group. The group said that if the action were successful it would invade the privacy of internet users. It has also expressed concerns that the filter software was far from perfect and that it could interfere with legitimate internet use and freedom of expression by blocking not only copyrighted material, but also files that are out of copyright or excerpts used for documentary purposes.
The action illustrates the difficulty in European law in reconciling the prohibition in the Electronic Commerce Directive 2000/31/EC imposing a general obligation on providers to monitor information they transmit and store with the possibility under that same directive and the Copyright and Enforcement Directive 2004/48/EC of awarding injunctions against providers in certain cases. One of the important questions that the court will have to decide if the plaintiffs succeed in their claim that an ISP may be held liable if it is aware of the infringing use is the question of what level of awareness is needed. Section 40 of the Copyright and Related Rights Act 2000 provides that the ISP needs to be "notified by the owner of the copyright in the work concerned". This implies that notice is mandatory in each individual case, and that a general contention that an ISP's system is used for file-sharing is not enough. This case could have implications for ISPs beyond the music industry because a positive ruling for the record companies could inspire other copyright owners such as photographers, book authors and the like to ask for comparable filtering systems for their own works.
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| John Whelan and Ciara Cullen |
A&L Goodbody
International Financial Services Centre
North Wall Quay
Dublin 1
Ireland
Tel: +353 1 649 2234
Fax: +353 1 649 2649
jwhelan@algoodbody.ie
www.algoodbody.ie
