Text of EMI v. Eircom

maidhc

EMI Records (Ireland) Ltd & Ors v. Eircom Ltd & Anor [2005] IEHC 233 (8 July 2005)
http://www.bailii.org/ie/cases/IEHC/2005/233.html

dahamsta

Any chance of a little background before I immerse myself in a document that might have zero interest for me? An opinion ("this is great" / "this is awful") wouldn't go far astray either.

adam

damien

It is the recent IRMA ruling

It is against this legal landscape that the Plaintiffs have sought orders requiring the Defendants to make disclosure of the names and addresses of 17 of their subscribers. These are internet subscribers who are designated by what is called an Internet Protocol Address and these addresses are set out in the schedule to the plenary summons.

Each of the four Plaintiffs have been assigned the Irish copyright in a large number of sound recordings. The Plaintiffs belong to an organisation called the Irish Recorded Music Association, IRMA. That entity retained a company called MediaSentry to investigate and gather evidence of what were perceived as activities which infringed the Plaintiff's copyright. An investigation was carried out and its fruits have been put before the Court by way of sworn testimony.

It is not necessary for me to set out in any detail the way in which that investigation was carried out and the various technical matters that are addressed in some detail in the affidavit evidence which has been placed before the court.

It is sufficient to say that I am satisfied that as a result of the expert evidence that has been put before me, certain computers connected to the internet via the Defendant's facilities have been used to make available to the public a significant volume of sound recordings, the copyright in which has been exclusively licensed to the Plaintiffs. It has been possible to download from these computers sample recordings and so to identify the internet protocol addresses which have been allocated by the Defendants to the computers in question. It is clear that the Defendants have records demonstrating to which subscribers to their services a particular Internet Protocol Address was allocated at the time in question.

maidhc

dahamsta wrote:

Any chance of a little background before I immerse myself in a document that might have zero interest for me? An opinion ("this is great" / "this is awful") wouldn't go far astray either.

adam

The name of the case should be self explanatory, but, for the record, its awful.

It's a disappointing judgment to be honest. It doesn't really go into much detail about anything. You will read it in 3 mins.

Pa ElGrande

Thanks for the post - reading it now

theking

The Dutch BRIEN case seems to have had more attention to the specifics of the Media Sentry info collection paid to it.

woodentopz

is this newer than the recent round of ISP IP disclosures to IRMA? It says June on the court document, so does it relate to the letters already sent by IRMA?

In any case, it reveals FOR CERTAIN that IRMA has used MediaSentry and have therefore most likely broken European data protection directives and committed a tresspass on the PCs belonging to the alledged file sharers.

see the DID YOU GET A LETTER FROM IRMA thread?

maidhc

The case relates to the letters IRMA has already sent.

It is a pity the interesting point about safe harbour wasnt raised.

For those interested in the law behind the judgment they could do worse that read TJ McIntyre's CLP article on internet anonymity and megaleasing orders at:
www.tjmcintyre.utvinternet.com/Online%20anonymity.pdf

Pa ElGrande

Irish ruling raises privacy worries
September 8, 2005
Nick Parker[Slyck.com]

Only a very naïve person would believe that their identity is secure when using the internet, although most of us would like to think that our rights to privacy are protected in law.

Not so, according to a ruling of the Dublin Court in favor of the Irish Recorded Music Association (IRMA), the Irish equivalent of the RIAA. The IRMA had recently sought disclosure of the identities of 17 people from their ISPs, who had allegedly used P2P to distribute files. It was especially disturbing that these individuals apparently did not even know that the IRMA was pursuing them for alleged copyright infringement, thus denying them the chance of fair representation.

The principle of forcibly disclosing the identities of others dates back to 1973, when the English courts ruled in the case of Norwich Pharmacal v Commissioners of Customs & Excise that a third party “comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers". This precedent has become known universally as the Norwich Pharmacal ruling.

ISPs can become involved in the transfer of infringing material, not because they have had any involvement in the act itself but simply because they have provided the means of communication.

In July 1998, the Federal Court of Canada ruled that internet service providers must reveal the identity of their users, ordering the disclosure of all messages sent by disgruntled ex employees of the Philips Services Corporation. In this instance the Philips Services Corporation took their action further, and issued proceedings in the Californian court against Yahoo, who had hosted the bulletin board concerned. Both actions were based on the Norwich Pharmacal ruling. Faced with a protracted and costly legal action, Yahoo decided to volunteer the information rather than fight the case. The protection offered by the American First Amendment failed to prevent other actions of a similar nature (America Online Ltd -v - Anonymous Publicly Traded Corporation 2001 is one of several examples of such an action).

The Norwich Pharmacal ruling that originated in the English courts has therefore acquired a distinctly international flavor, migrating to Canada and hence the Commonwealth, across to the USA and most recently, to this highly relevant case in Ireland.

In his judgment, Justice Kelly of the Dublin Court stated, “On the evidence which has been put before me I am satisfied that there is prima facie [or reasonably clear] demonstration of a wrongful activity, namely infringement of the Plaintiff's copyright.”

Justice Kelly went on to say in his comprehensive ruling, “I am satisfied that whether the right to confidentiality arises by statute or by contract or at common law, it cannot be relied on by a wrongdoer or a person against whom there is evidence of wrongdoing to protect his or her identity. The right to privacy or confidentiality of identity must give way where there is prima facie evidence of wrongdoing. There is such evidence here.”

This naturally raises concerns that ISPs will simply start handing over details of all their clients to the music industry. Indeed, their acceptable use (AUP) and privacy policies usually give them the right to do so. One British Telecom subsidiary states : “BT reserves the right to edit or disclose the contents of your private communications to law enforcement authorities, if in BT’s good faith belief that such action is reasonably necessary to conform to the edicts of the law or comply with legal process served on BT.”

It is also worth bearing in mind that data protection laws may offer far less protection than we would hope for. In the UK in particular, the Data Protection Act 1998 states in section 35 that personal data "may be communicated to third parties for the purpose of, or in connection with, any legal proceedings".

However, it should be remembered that such rulings are specific to individuals and do not confer blanket authority to ISPs to disclose personal information without being ordered to do so. Otherwise they could be liable for extensive damages themselves. It should also be remembered that the court first had to be satisfied that those individuals who had been identified had probably done what they were accused of in the first instance.

Perhaps the IRMA may care to reflect that their action could backfire in a spectacular home goal. They have had to disclose details of both their allegations and their case, therefore immeasurably helping anyone brave enough to defend themselves against prospective action.

Furthermore, if the recent Irish ruling were to be contested under the European Convention on Human Rights on the grounds that the defendants were denied their right of representation, it would almost certainly be overturned.

A good analysis of the ruling from our friends in the UK.

maidhc

Interesting article:

"BT reserves the right to edit or disclose the contents of your private communications to law enforcement authorities, if in BT’s good faith belief that such action is reasonably necessary to conform to the edicts of the law or comply with legal process served on BT."

I hope the music industry dont consider themselves that now...