EMI v Eircom

Pines

The decision of Charleton J. can be read here.

The question being decided was whether there was a problem, on data protection grounds, regarding the co-operation between the record labels and Eircom to implement a "three strikes policy" for cutting off internet access on the third allegation of illegal downloading. The Data Protection Commissioner had questioned whether the collecting, processing and sharing of IP addresses should be regarded as "personal data" and/or "sensitive personal data".

The judge found that the data was not subject to the restrictions of the Data Protection Act, and that there was therefore no impediment to Eircom implementing a three strikes rule against its subscribers. The issue was a narrow one, but unfortunately the Data Protection Commissioner was not represented at trial, and there does not appear to have been any representation on behalf of the subscribers who are likely to be accused of copyright infringement. It is therefore perhaps not surprising that the judgment heavily favours the parties who were all in favour of the settlement being held to be legally enforceable.

The judge was prepared to accept that the record labels had no interest in digging behind the IP address to identify the subscriber's identity, and that the information would never be used for criminal prosecution (despite his own characterisation of illegal downloaders as thieves).

The judge was also comforted by the assurances from Eircom that it would be receptive to subscribers in individual cases, e.g. where the subscriber depended on broadband internet access for medical services or for his/her livelihood.

The crux of the judgment, as I read it, came down to the judge's appraisal of the balance between the "constitutional right" of the copyright owner to have protection from filesharing, and the right of the individual to have internet access. The judgment says:

There is nothing disproportionate, and it is therefore not unwarranted, about cutting off internet access because of three infringements of copyright.

Interestingly, the French Constitutional Court reached the exact opposite conclusion when it struck out a three strikes law: it held that the right of the individual to communicate over the internet was so important that it could only be terminated by a specific court ruling in each case, and not by a non-judicial and automated administrative procedure.

The other ISPs will now come under pressure to implement a similar three strikes rule. One would hope that they stick to their resolve, and that the Court is asked to consider stronger arguments on the proportionality issue.

Tom Young

What needs to be considered in this is that under S.I. 68 of 2003 the eCommerce Directive and Article 3A of the 2009 Amendment to the New Communications Regulatory Framework is that the ISP is an innocent party to anything that goes on, on the Internet. The status of this immunity is called mere conduit. In relation to 3A of the New Regulatory Framework, the situation is somewhat different. This calls for judicial oversight and process intervention to protect users rights, e.g., conscience and privacy.

In my own view, Charleton J dealt with what was before him adequately, but missed the point. The questions were threefold and you can see them in the Judgment as cited by the OP.

The third strand of the Judgment deals with eircom's agreement, a bilateral settlement agreement with the Music rights holders. This agreement was a foolish move by eircom. The case should have been run to the end and fully litigated, this didn't happen. Due to the 'firesale' (sic) that was going on at the time of this litigation. The company had some of the best counsel in the business working for them and they were to all intent and purpose winning the case ... the settlement now, after yesterdays decision, opens the way to more expenditure by the music rights lobby (which to some extent I have sympathy for, but they need to identify their supply chain, not shoot the messenger).

Paul McGuinness today compared Copyright to Child Porn. This is totally, TOTALLY and UTTERLY wrong and is legislated for under the 1989 Act. Paul needs to come to terms with the fact that he's totally wrong here, totally. Sensationalism on such issues is myopic and self serving.

I have little sympathy for eircom in this outcome. It was a cost saving exercise a year ago that ultimately will now cost them. Cost the market and cost the state.

In relation to the Data Protection Commission, I suggest this should be appealed. This body failed to present a logical and sustainable argument at the re-entry stage of the litigation ... get off your hands! Protect my/our rights or find a new job.

The Judge here dealt with the facts and submissions before him. I don't believe the Music Rights Holders represented the EU dimension correctly or eruditely.

The ruling may pave the way to infringement and Internet 'tapping' of peoples communications, who have done absolutely nothing wrong. Tapping is a breach of privacy and should be viewed in the same light as the agreement with eircom, albeit slightly different.

Why should a private limited company determine whether or not I or some other user has broken the law (civil or criminal)? ... sorry .... simply they shouldn't.

I am passionate about the innocence of the ISP in this equation, I am passionate about the protection of Privacy rights online and I am equally passionate that the law should not be infringed at all, for the exploitation of music rights holders, children, innocent parties or indeed the common man.

Pick your battle Music Rights Holders, chasing the golden cow will cost you and cost you dearly!

Tom

Tom Young

Pines wrote: »

Interestingly, the French Constitutional Court reached the exact opposite conclusion when it struck out a three strikes law: it held that the right of the individual to communicate over the internet was so important that it could only be terminated by a specific court ruling in each case, and not by a non-judicial and automated administrative procedure.

The other ISPs will now come under pressure to implement a similar three strikes rule. One would hope that they stick to their resolve, and that the Court is asked to consider stronger arguments on the proportionality issue.

Darned bloody right.

Robbo

Tom Young wrote: »

Paul McGuinness today compared Copyright to Child Porn. This is totally, TOTALLY and UTTERLY wrong and is legislated for under the 1989 Act. Paul needs to come to terms with the fact that he's totally wrong here, totally. Sensationalism on such issues is myopic and self serving.

Corporate Rock Svengali wrote:

“Worldwide parents take responsibility in their own home for stopping their kids downloading pornography,” he said. “They need to apply the same approach to music.” He said 95 per cent of music downloaded on the internet is done illegally.

Slightly better than a child porn analogy but he also made some far more invidious comments, amounting to words to the effect that were it not for this judgment, American pharma and tech companies wouldn't be burying their European tax liability here availing of our highly educated workforce.

I'll have a skip through the proper judgment when I'm less refreshed but I'd hope that someone will, in future, offer a little more resistance than Eircom did. After all, if 95% of all music is downloaded illegally and all those who infringe are to be cut off, the ISPs will soon have shag all customers to fight over...

Pines

One additional comment on the judgment (perhaps also arising from the fact that the interests of the consumer and data subject were not represented before the judge).

Not only is the tenor of the judgment heavily in favour of the copyright owner, but the language chosen by the judge is, in my experience, unprecedented in an IP decision, no matter whether it is describing patent, trademark or copyright infringement.

I've never seen a judgment in which the neutral term "infringement" is overlooked in favour of the phrases "copyright theft", "stealing" and "filching" used throughout this judgment. You will search the legislation in vain for any of these phrases, which are largely the invention of the music and movie industries. Even more tellingly, the decision is about protecting data relating to "data subjects" (in the words of the legislation and the questions for adjudication). The judgment describes these data subjects as "copyright thieves", as a result of being associated with an IP address which was involved in an allegedly infringing act. Even if the data subject carried out that infringing act s/he would be an infringer, not a "thief". The movie and record industry lobby groups will rejoice that their phraseology has been so warmly adopted by the judge, which is most unfortunate as these phrases inevitably colour any debate in terms of good guys and bad guys.

Tom Young

The issue here is eircom won't do anything further. May need to await UPC litigation or get the goddam DPC to do something!