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Eircom To Tell Filesharers: “Three Strikes You’re Out”

26 February 2009
Category: Legal Articles

On 28 January 2009, following eight days in the High Court, leading Irish internet service provider (ISP) eircom reached a settlement with four major record companies (EMI, Sony, Universal and Warner), under which eircom will implement a "three strikes and you're out" process against subscribers who upload or download files in breach of copyright.

Proposals for laws imposing an obligation on ISPs to implement “three strikes” policies against file-sharers have been debated across the EU and beyond.  In April 2007, the European Parliament issued a non-binding declaration rejecting the principle of termination of services as a sanction for copyright infringement. Yet a French bill for an obligation on ISPs to impose a “three strikes” policy appears to be on track to be passed into law later this year.  Against this background of international debate and controversy, the settlement reached between eircom and the record companies is widely seen as a world first.

Under the settlement, where eircom is notified that a subscriber has been detected using its network to upload or download files in breach of copyright, it will carry out the following steps:

  1. inform such subscribers that their IP address is being used to infringe copyright;
  2. issue a warning that if they do not cease, they will be disconnected; and
  3. disconnect them if they fail to heed the warning.

The record companies had initially pushed for eircom to install software designed by a US company, which could detect the characteristic fingerprint of copyrighted music files being sent over eircom’s network.  eircom had resisted this on technical grounds and on the basis that it could infringe its subscribers’ privacy rights.  Under the settlement, there will be no obligation on eircom to seek to detect infringers itself: the record companies will supply eircom with the IP addresses of persons they detect sharing files in breach of copyright, and this will trigger eircom’s obligation to initiate the “three strikes” process,

EMI Managing Director and Chair of the Irish Recorded Music Association (IRMA) Willie Kavanagh expressed delight at the settlement and said he hoped similar agreements could be reached with other Irish ISPs.  Many online commentators were hostile to the agreement, raising doubts as to the technical feasibility and privacy implications of implementing the settlement, in particular in relation to the detection of copyright infringement.

Belgian precedent?

It is possible that eircom’s willingness to settle the case may have been influenced to a certain extent by the recent decision of the Belgian Court of First Instance in SABAM v Scarlet (Tiscali), where Belgian Society of Authors, Composers and Publishers (SABAM) took an action against the Belgian ISP, Scarlet, seeking an injunction requiring Scarlet to install software which would monitor for, and block, peer to peer file sharing. 

In a surprise decision in 2007, the Belgian CFI granted the injunction against Scarlet.  The Belgian Court’s decision is surprising because it imposes a pro-active monitoring obligation on the ISP, notwithstanding that the E-Commerce Directive provides that the ISP is only liable when actually aware of infringing activity.  Whilst this decision would not be binding on an Irish Court, it is possible that if the eircom case had proceeded, the High Court would have had some regard to the Belgian case and might have been persuaded by it. 

Scarlet has since been granted a stay by the Belgian Court on the basis that the monitoring software was not compatible with its systems.  The case is being appealed to the superior courts in Belgium and it is very likely this will result in a reference to the European Court of Justice.  A ruling of the ECJ on this issue would provide welcome clarity on this issue.

For further information, please contact:

Emma Keavney, Senior Associate, Tel: + 353 1 614 5288 E:ekeavney@mhc.ie, Brian Harley, Solicitor, Tel: + 353 1 614 5071, Email: bharley@mhc.ie

The content of this piece is provided for information purposes only and does not constitute legal or other advice. Mason Hayes & Curran (www.mhc.ie) is a leading business law firm with offices in Dublin, London and New York. 

© Copyright Mason Hayes & Curran 2009. All rights reserved.

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