The IPKat: copyright liability for ISPs

Browsing through last week's World Media Law Report the IPKat spotted that the copyright infringement action brought in Ireland by recording companies EMI,SONY BMG, Universal Music and Warner against Eircom, Ireland’s flagship internet service provider, was settled at the end of January. The four rights-owners had sued Eircom under the Copyright and Related Rights Act 2000, seeking to restrain the ISP from infringing by making available copies of their recordings to the public through Eircom’s internet service facilities but without their consent. This made a change from the usual actions that were brought against individual illegal downloaders.

To the disappointment of many, the trial -- scheduled for four weeks in court -- only ran for eight days before it settled on terms (here) that Eircom would operate a “three strikes and you are out” regime against any of its customers who upload/download music illegally. Meanwhile, the record companies will deploy a service that poses as a P2P file sharer in order to entrap and identify illegal downloaders. Once Eircom gets the identified IP addresses, it will have to notify the fingered subscribers that they have been identified as infringers, warning them that unless the activity ceases their subscription will be disconnected -- the ultimate punishment.

The record companies had wanted Eircom to install special software to detect the unique “fingerprint” of illegal up/downloaded copyright music files but Eircom refused, saying it was not technically feasible and that it would have interfered with the operation of its network and services. As things stand, Eircom does not have to provide details of any of its subscribers who are suspected of copyright infringement to the music industry, since this would give rise to significant privacy and data protection implications.

The IPKat suspects that, in the long haul, this settlement will make very little difference to the vast majority of file sharers. Those who are law-abiding can sleep soundly anyway; the small-timers who infringe a little bit here and there remain below the threshold above which legal action makes sense for the copyright owners, while the serious infringers will exercise their ingenuity in order to persist in their activity, whether through multiple accounts, identity thefts or anything else. That's not to say that it's not important, though: it establishes the principle that at least one Irish ISPs is not merely a neutral carrier, but has a commitment to cooperate with the copyright owners. How far this principle can be meaningfully exploited by the recording companies will presumably become apparent over the next couple of years.

After Eircom, what about the other Irish ISPs? Click here for more
Has Eircom betrayed its subscribers? Find out here

Courtesy of his good friend Simon Haslam (Abel & Imray), the IPKat reports on the BBC's account that rock band U2 manager's Paul McGuinness has urged internet service providers to help end illegal music downloads, pleading for the disconnection of those who acquire tracks illegally. Speaking at the Midem conference in Cannes, he emphasized that it was time for artists to stand up against what he called the "shoddy, careless and downright dishonest way they have been treated in the digital age". To blame are record labels and governments who "created a thieves' charter" by agreeing that ISPs should not be responsible for what passed along their networks, adding:

"If you were a magazine advertising stolen cars, handling the money for stolen cars and seeing to the delivery of stolen cars, the police would soon be at your door. That's no different to an ISP, but they say they can't do anything about it. If you steal a laptop from a store or don't pay for your broadband service, you'll soon be cut off and nicked".

The Internet Service Providers Association has always maintained that it cannot be held responsible for illegal peer-to-peer traffic because it is "merely a conduit" of such material.

Says Simon,

"If I recall correctly, U2 used to provide tapes (remember those?) with U2 music on one side but blank on the other so that you could tape someone else's music on to the blank side".

U2 position on taping here