IRMA vs. the filesharers (did you get a letter from IRMA?)

woodentopz

Just wondering how well known an interesting recent Dutch precedent in a file sharing case is. if it were better known, more people might stand up for their rights as Europeans...

As you might have noticed, we are almost part of a European superstate. This is a good thing, sometimes. In Holland, they have been following EC data protection directives a little more closely than we appear to have been doing in Ireland. None the less, Dutch data protection law is based on exactly the same European Data Protection Directive that applies in Ireland.

When the music industry's representative body in Holland (called BREIN) asked ISPs there to reveal the owners of allegedly infringing IP addresses, the ISPs declined, relying on an aspect of the European Data Protection Directive.

Their point was that the company doing the online detective work for the music industry (the US company, MediaSentry) had transgressed the online privacy rights of the account holders by trespassing onto their home computers, and gaining access to non-infringing files.

Whadayaknow? It turns out that nefarious companies (especially American ones) don't have the right to raid your hard drive and rifle through your files. Who'dathunkit?

I understand that IRMA has employed MediaSentry to do their investigative work. So, if any of the IRMA letters were to reach court, they could be struck down as the ISPs' handing over of details contravenes data protection law. (Irish and European). The Dutch judments suggests that the ISPs themselves may also be subject to actions from people whose rights they infringed by giving the information away.

The legal academic who took the case in Holland is called Christiaan Alberdingk Thijm. Google him.

A translation of the judgment exists in English, and here is an interesting excerpt:

4.26. It has been established that MediaSentry is an American company and that the United States of America cannot be regarded as a country with an appropriate level of protection for personal data. It has been stated by the service providers, and has not been contested, that MediaSentry has not signed a Safe Harbor agreement pursuant to which it conforms to the European guarantees of privacy. Lastly, Brein has not stated, nor has it been made plausible, that this is an exceptional situation as referred to in Article 77(1) of the Personal Data Protection Act, nor can there be spoken of an authorization in the sense referred to in Article 77(2) of the Personal Data Protection Act. It therefore cannot be assumed that, in its data processing, MediaSentry took into account the same guarantees as Brein would have done if it had carried out the investigation itself. This is the more urgent since the service providers have made it sufficiently plausible that MediaSentry investigates the contents of the “shared folders” of the IP addresses involved with the help of the software it uses. The judge in preliminary relief proceedings understands that these are files located on the (hard disks of) computers of users (including subscribers of the service providers). In this way, MediaSentry can see all the files stored by users in these folders. This might well include files that are not an infringement on the rights of another party or that are of a personal nature.

4.27. It follows from the foregoing that (it must be considered as having been established in these preliminary relief proceedings that) the manner in which Brein had IP addresses collected and processed has no lawful basis.

Now if only some helpful figure on the irish legal scene with an interest in online privacy and someone with one of the IRMA letters were somehow to contact each other...

woodentopz

b-ump

theking

Hi there
Could you PM me a link to the source of the English Translation you quoted there.
Thanks

TJM

Woodentopz - that's a very perceptive post. I was in court for the IRMA application (technically the application was by EMI et al., but IRMA seem to be in the driving seat) and this point wasn't made by either BT or Eircom.

Irish law is clear when it comes to this area (known as a Norwich Pharmacal or Megaleasing order). Such an order can be refused if the person seeking it has "unclean hands" - i.e. is guilty of some wrongdoing in connection with the litigation.

An argument could be made that there was a breach of the Data Protection Acts in the use of MediaSentry and as such the applicants didn't come to court with clean hands. If successful, these arguments would most likely result in the order being discharged - which in turn would most likely mean that the litigation could not proceed.

(The data protection issues involved are particularly complicated, but the most promising for the defendants is probably the argument that the information concerned (IP addresses and/or usernames) was "personal data" within the meaning of the Acts and as such could not be transferred to the US (to MediaSentry) unless the Safe Harbor scheme was used: which it was not. The Constitutional Code blog has a very good analysis of the Dutch decision. There are other points made in that decision - such as the argument that scanning the entire shared folder might be disproportionate.)

[Edited to delete a full disclosure point, since the Dutch decision was handed down after the Irish decision, and not as I mistakenly said before.]

woodentopz

TJM...were you an observer at the IRMA (et al.) case? what sort of defence did the ISPs put up?

TJM

The ISPs were in a difficult position in some ways - oppose the application, lose and you may be hit with costs. As such they positioned themselves so that they were neither consenting nor objecting but merely assisting the court by bringing relevant material to its attention.

Having said that, they did fairly represent the bulk of the privacy points. In particular they:

pointed to the privacy issues involved;
set out the Canadian and UK caselaw in some detail;
noted the data protection issues involved (but not including the MediaSentry point);
noted that subscribers enjoy overlapping contractual, equitable and statutory privacy rights;
pointed out that the plaintiffs had other remedies open to them (such as their notice and takedown procedures, or criminal complaints);
pointed out that the plaintiffs estimates of damages were overblown and unsupported (the plaintiffs referred to the users making files available to millions of downloaders, but somewhat glossed over the fact that availability does not necessarily translate into downloads);
pointed out that an IP address, although linked to a subscriber, can't necessarily be linked to the individual uploader;
pointed out that any damage caused might be de minimis - the plaintiffs hadn't established that these were habitual offenders on any great scale;
noted that any order granted would be limited to the individual case, and couldn't be used to demand disclosure of the identities of other users without a further court order;
pointed out that this was an exceptional jurisdiction, to be used sparingly; and
made submissions re the undertaking to be given by the plaintiffs that they would use this information only for litigation purposes (and not, for example, as part of a US style name and shame campaign).

Unfortunately, the ISPs didn't raise two points which might have been important. The first is, obviously, the MediaSentry issue (although, as I note in the post above, since the Dutch decision wasn't handed down until the following week, the ISPs weren't necessarily in a position to be aware of the Dutch litigation). Second, the ISPs didn't submit that the users should have a right to be notified and to make submissions to the court before the disclosure order is made. In other jurisdictions this protection has been adopted - US law requires this and UK law is leaning in this direction - and I've argued [ http://www.tjmcintyre.utvinternet.com/Online%20anonymity.pdf ] that it should also be adopted here.

woodentopz

...interesting article.

your second point above continues to be a crucual issue, doesn't it? As long as none of the recepients of the letter ever consults a lawyer on the matter -- which is understandable, given the possible cost implications of a chat, never mind hitting the courts -- the precedents will remain rather academic.

I'm not a lawyer (what? you couldn't guess?) but i was very interested in the 'amicus' (spg?) contributions in American courts. If i am getting it right, they give interested groups -- eg: the EFF, ACLU etc. -- the oppurtunity to make their own contributions on signifance cases, even when not directly involved. Is there anything akind to this in this parish?

TJM

Irish law does allow for non-parties to be heard as amici curiae (lit. "friends of the court") - but not on as liberal a basis as US law.

The leading Irish decision is HI v The Minister for Justice, Equality and Law Reform, on the Application of The United Nations High Commissioner for Refugees [2003] 3 IR 197.

The key passages from that judgment are:

While there are no statutory provisions or rules of court providing for the appointment of an amicus curiae, save in the case of the Human Rights Commission, the court is satisfied that it does have an inherent jurisdiction to appoint an amicus curiae where it appears that this might be of assistance in determining an issue before the court. It is an unavoidable disadvantage of the adversarial system of litigation in common law jurisdictions that the courts are, almost invariably, confined in their consideration of the case to the submissions and other materials, such as relevant authorities, which the parties elect to place before the court. Since the resources of the court itself in this context are necessarily limited, there may be cases in which it would be advantageous to have the written and oral submissions of a party with a bona fide interest in the issue before the court which cannot be characterised as a meddlesome busy body. As the experience in other common law jurisdictions demonstrates, such an intervention is particularly appropriate at the national appellate level in cases with a public law dimension.

It is, at the same time, a jurisdiction which should be sparingly exercised. Clearly, the assistance to be given to an appellate court will be confined to legal arguments and supporting materials. It is not necessary to consider the circumstances in which it would be appropriate for the High Court to appoint an amicus curiae. It is sufficient to say that, as was pointed out in United States Tobacco Company –v- Minister for Consumer Affairs and Others, the position of an amicus curiae is quite different from that of an intervener. It was said in that case that an amicus curiae, unlike an intervener, has no right of appeal and is not normally entitled to adduce any evidence.

In the present case, an issue of public law arises and the judgment of the court may affect parties other than those now before the court. The court was satisfied that the UNHCR might be in a position to assist the court by making written and oral submissions on the question of law certified by the High Court and, accordingly, appointed it to act as amicus curiae and, for that purpose, to make oral and written submissions.

woodentopz

<bump>heave</bump>

theking

Of course, if anyone hears about one of these coming up in court, it would be very welcome if they PM the moderators of this forum. The amicus idea has been the subject of some recent legal thought.

woodentopz

The Hot Press has been in a difficult position on the subject of p2p filesharing. In theory, the interests of its readers should be paramount in its editorial directions, but in reality the interests of its advertisers (represented by the likes of IRMA) have taken the lead on this question. The preponderance of opinion has come from the music industry side of what is a widespread and hotly contested area, with little balance in reporting or coverage of creative commons initiatives etc.

This general drift has been compounded by fairly soft reporting and perhaps a lack of technical knowledge (both of law and of IT) on behalf of the journalists. Well, it is a music magazine -- I am assuming that the journalists concerned do not set out to mislead!

On page 86 of the current issue, for example, there is an item that appears to have been taken from the IRMA web site. The original item reads:

"29th September 2005 - Navan man charged with copyright infringement

On 29th September 2005, John Paul Nevin, Navan, pleaded guilty to 4 sample charges of copyright infringement and was fined €1,500 on each of the 4 counts - a total of €6,000.

The charges arose out of a raid carried out by members of An Garda Siochana on John Paul Nevin's house on 8th September 2004 and subsequent identification from IRMA."

As of yet, i have found no other reporting of this case, so i have no reason to believe that the Hot Press version comes from anywhere other than the IRMA press release. (It could be that the Hot Press does indeed have a court reporter based around Navan, but i'd think that unlikely!)

In any case, the Hot Press columnist adds that:

"IRMA are cock a hoop have secured their first conviction in their campaign against illegal downloading -- or piracy by any other name..."

The piece goes on to point out that Gardia "raided Nevin's house in September 2004 and confiscated material for use in evidence"

Now, IFAIK, IRMA had not even begun its anti-p2p "investigations" (see above in this topic) at that stage, and certainly had not obtained the identities behind any IP numbers at that stage. I was also unaware that "raids" were going on in connection with filesharing, or that the gardai were involved, given that IRMA has never seriously suggested that filesharing is a criminal offence (unlike say, selling counterfeit CDs and DVDs).

As it happens, the IRMA site mentions several other cases of "copyright infringement" with similar levels of fines, but in those cases, the proceedings seem to relate to counterfeiting, or (as the Hot Press might say, though here with some basis in fact) "piracy by any other name."

So, does anybody have any more information on this case? Was it really a garda raid against a p2p filesharer? Does the Hot Press have a case to answer for misleading its readers in the interest its advertisers?

woodentopz

...and i wonder how John Paul Nevin's solicitors might feel if he had been convicted in the Hot Press of something with which he was not even charged in the real world. if that, like, were ever to happen...

TJM

This looks like simple confusion on the part of Hot Press.

On the other hand, it's probably only a matter of time before IRMA start pressing for prosecutions. The relevant offence would be s.140(1)(e) of the Copyright and Related Rights Act, 2000:

140.—(1) A person who, without the consent of the owner—

(e) otherwise than in the course of a business, trade or profession, makes available to the public to such an extent as to prejudice the interests of the owner of the copyright,
a copy of a work which is, and which he or she knows or has reason to believe is, an infringing copy of the work, shall be guilty of an offence.

(Although this only criminalises uploading, not downloading, and would require the prosecution to show that the extent of the filesharing was so great "as to prejudice the interests of the owner".)

While this might seem farfetched, the BBC reports today that a person has recently been [URL="ttp://news.bbc.co.uk/2/hi/technology/4376470.stm"]convicted of filesharing in Sweden[/URL].

woodentopz

...probably is a mistake, but it is worth noting that the hot press is prone to mistakes of exactly this kind when covering this issue. I have not seen an incident where their inaccuracies have served to suggest greater freedoms for downloaders than actually exist, but several which seem to suggests that filesharing is a criminal offense and others that suggest that IRMA had been sucessful in securing convictions over this issues...

Pa ElGrande

11th November 2005 - IRMA to announce new wave of litigation

On Tuesday 15th November, IRMA will be holding a press conference to announce the commencement of further action against uploaders.

http://www.irma.ie/index2.htm

Roll on the newspaper rewites of their press releases and spreading of Fear Uncertainty and Doubt (FUD). Might be an idea to release a press statement of our own condeming their actions especially in light of the actions of one of their members SonyBMG, concerning rootkits.

What questions should journalists be asking of IRMA?

Pa ElGrande

This is a copy of the July 12, 2005, decision of the District Court of Utrecht, in the Netherlands, in Foundation v. UPC Nederland in which it was held that Media Sentry's investigation of peer to peer file sharing over software such as that supplied by Kazaa and Grokster was flawed and not "lawful", and that the internet service providers were not permitted to divulge subscriber information to the RIAA's Netherlands counterparts

Court Decision
http://www.lifeofalawyer.com/riaa/foundation_upcnederland_decision050712.pdf

Expert Witness Declaration
http://www.lifeofalawyer.com/riaa/foundation_upcnederland_witnessdeclaration.doc

There's more at http://p2pnet.net/story/6977

Pa ElGrande

5th November 2005 - IRISH RECORDING INDUSTRY LEGAL ACTION AGAINST ILLEGAL MUSIC FILESHARERS: PHASE II

The Irish Recorded Music Association (IRMA) today announced Phase II of its legal action against "serial filesharers" in Ireland who illegally make copyrighted music available on the Internet. Now IRMA is seeking damages and injunctions against 50 more individuals or companies who have illegally uploaded hundreds or thousands of music tracks onto peer-to-peer filesharing networks.

As in Phase I, IRMA, through the Court, is asking Internet Service Providers to release the names of the individuals they have found to be abusing copyright on the Internet. The major filesharers subject to legal action include users of the filesharing network FastTrack - on which KaZaA runs - and the Gnutella network.

As a result of its first phase legal action against 17 illegal filesharers last April, IRMA has settled with 12 at an average of €2,500 per case, is suing a further 3, and is considering its legal options in the 2 remaining cases.

IRMA Chairman, Willie Kavanagh, said: "Regrettably, the legal action continues against serial file sharers. Despite a fall off of up to 50% in illegal activity in April-June following our initial campaign, the numbers have substantially increased in the July-September period. The scale of the challenge and the damage is apparent when we consider that any one of these individuals engaged in illegal filesharing could be connected to some 2-3 million others at any one time on the Internet."

Phase I of the legal action came after 15 months of educational initiatives to raise awareness of the cultural and economic damage done by illegal file-sharing. Those initiatives included educational brochures sent to colleges and businesses, an extensive radio campaign on national and local radio, countless media interviews and an informative website www.pro-music.org. 52 million instant messages were also sent to the computers of illegal filesharers worldwide, warning them of the consequences if they continued breaking the law.

IRMA's Phase II legal action comes after a significant and successful year for legitimate online music services offering legal downloads to consumers. This new wave of legal actions is aimed at deterring the illegals and giving crucial breathing space to legal services, and allowing them further room to develop their customer services. There are six major legitimate services in Ireland: iTunes, Eircom Music Club, mycoke.com, vitaminic.com music club, wippit.co.uk and Sony Connect.

Dick Doyle, Director General of IRMA said: "Despite our original legal actions and the press coverage involved with same, it is clear to us that some people are still prepared to act illegally and in a persistent manner. IRMA must protect its members' interests by taking on file sharers who refuse to get the message."

The launch of these Phase II legal actions in Ireland forms part of an announcement from the international recording industry, that it too, is stepping up litigation against illegal filesharers internationally. IFPI, the organisation representing the recording industry worldwide, today announced a total of 2,000 new actions launched in 16 countries in Europe and Asia.

Éanna Casey, Chief Executive of Recorded Artists and Performers (R.A.A.P), said: "R.A.A.P fully endorses the actions outlined this morning by IRMA in Phase II of their legal campaign. Online music piracy is selfish, illegal and damaging, having a direct negative impact on the economic welfare of Recording Artists and Performers. No industry can be expected to allow illegal activities to continue unchallenged. The unauthorised uploading of copyrighted music is being confronted vigorously by IRMA, and R.A.A.P. is fully committed to protecting its members' moral and economic rights through these actions."

Only 12 out of initial 17 settled, that means they are not having everything their own way, and they are targetting the Fasttrack and Gnutella networks.

woodentopz

<bump>
now that IRMA supposedly wants to send another round of letters and will once more have to apply to the ISP to reveal the names related to the IP addys they have found, I wonder have they used a different company that MediaSentry this time? Or have they repeated the tresspass that they appeared to make onto individual users machines the last time, perhaps nullifying their case and opening themselves up to counterclaims and perhaps criminal prosecution?

Has anyone (TJ?) any idea how to find out?

Also, is it really true that nobody on this board, nor anybody they know has been sent a letter? Or am i just failing to get this message out? Is some cross-posting required?

For God's sake, this is a real live issue.

dahamsta

Irish people are generally too far up their own holes to give a toss. You're only frustrating yourself getting angry about any lack of action.

adam

TJM

We won't know whether they're using MediaSentry again until they start the fresh round of litigation. (Unless one of the ISPs would like to be helpful and disclose the correspondence they've received.) I'd be surprised if they weren't though.

We've put up some more thoughts on the litigation on the DRI site:
http://www.digitalrights.ie/2005/11/16/irmas-legal-action/

woodentopz

read that article TJ; REALLY terrific.
now nobody can say that the journos don't have anywhere to go for information. did you press release that piece to any papers? rte? etc?

good job!

Pa ElGrande

NOV. 25 10:58 A.M. ET The Dutch Supreme Court on Friday ordered Internet company Lycos to reveal the identity of a client in a benchmark decision on privacy that was praised by copyright groups as a way to go after illegal swapping of music and movies online.

It is the first ruling of its kind in the Netherlands on Internet privacy and could have far reaching consequences for other Internet providers.

The country's highest court ruled that Lycos had wrongly protected the identity of a user who anonymously posted slanderous allegations against an Internet postage stamp dealer on a member site. The dealer, who traded stamps on auction site e-Bay, was accused of cheating buyers.

Read on....

This could set an important precedent accross Europe.

maidhc

I thought the Scientologists had managed to do this over 10 years ago.
http://www.xs4all.nl/~felipe/cos/pers.eng.html

(likewise they (more or less) closed down anon.penet.fi) http://www.xs4all.nl/~kspaink/cos/rnewman/anon/penet.html)

Freddie59

Pa ElGrande wrote:

This could set an important precedent accross Europe.

How? It's the identity of someone who slandered someone else?

Charlie

Pa ElGrande wrote:

This could set an important precedent accross Europe.

There is a world of differnce between that case and p2p. The wrong that was committed in that instance was "self published", i.e. the scientologists didn't have to route around on that persons hard drive for evidence that he had wronged them. In the p2p situation, the record companies are using a service to invade your hard drive and collect the evidence against you, which from a technological standpoint is the equivalent of someone entering your house without an anton pillar order to collect evidence against you.

Pa ElGrande

Lycos vs. Pessers
The Dutch Supreme Court basically stated three things in their Lycos vs. Pessers ruling:
1) Not only if an action (or non-action for that matter) is unmistakably unlawful but also if it might be unlawful; The ISP should handout ID's.
2) ISP's should and must perform the above mentioned test. Court intervention isn't needed nor warranted.
3) Nevertheless, ISP's should perform this test in good faith and acknowledge the basic human right of free speech.

Freddie59

Pa ElGrande wrote:

Lycos vs. Pessers
The Dutch Supreme Court basically stated three things in their Lycos vs. Pessers ruling:
1) Not only if an action (or non-action for that matter) is unmistakably unlawful but also if it might be unlawful; The ISP should handout ID's.
2) ISP's should and must perform the above mentioned test. Court intervention isn't needed nor warranted.
3) Nevertheless, ISP's should perform this test in good faith and acknowledge the basic human right of free speech.

Ah - I see now. Pardon my ignorance!:)

maidhc

Pa ElGrande wrote:

Lycos vs. Pessers
The Dutch Supreme Court basically stated three things in their Lycos vs. Pessers ruling:
1) Not only if an action (or non-action for that matter) is unmistakably unlawful but also if it might be unlawful; The ISP should handout ID's.
2) ISP's should and must perform the above mentioned test. Court intervention isn't needed nor warranted.
3) Nevertheless, ISP's should perform this test in good faith and acknowledge the basic human right of free speech.

I thought the Data Protection Act was reasonably clear on that issue here:

( b ) required for the purpose of preventing, detecting or investigating offences, apprehending or prosecuting offenders or assessing or collecting any tax, duty or other moneys owed or payable to the State, a local authority or a health board, in any case in which the application of those restrictions would be likely to prejudice any of the matters aforesaid,

In light of Melling, Gilligan (and all the other cases on this issue I forget) doesnt "offence" connote "criminal offence".

wheresmejumper

I did a search on the IRMA site to check if they'd anything to say on a certain russian web site (they didn't have any warnings or advice so it's fully legal).

Anyway what I thought was funny is that the cheapskates have one of those google ad windows where it throws up a bunch of ads for companys depending on what is typed in to the search panel.

End result anyway is that the IRMA website actually advertises a whole bunch of what I would have considered dubious mp3 websites, but since they're on the IRMA webpage I guess they're giving them their blessing.

TJM

Any chance of a screen capture?

(I'm running Adblock and don't see Google ads any more.)

dahamsta

TJM wrote:

(I'm running Adblock and don't see Google ads any more.)

CTRL+SHIFT+B to disable/enable.