Why be creative if you can be a mere conduit?

"Music labels lose downloads case" is the title of an article in today's Irish Times which has been thoughtfully sent to the IPKat by his Irish friend Gemma O'Farrell.  The story is a sequel to the efforts made in Ireland to get a "three strikes" policy up and running in the Emerald Isle in respect of unauthorised copying and file-sharing by internet users. Big-name recording companies Warner Music, Universal Music, Sony BMG and EMI Records brought an action in which they sought to have unauthorised internet copyists identified and then cut off, but in today's High Court judgment Mr Justice Peter Charleton held that there was no legal basis for such relief in Ireland.

According to the press report, the judge agreed that online infringement not only undermined the recording companies' business but "ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living. It is destructive of an important native industry". However, there were no laws in place in Ireland to enforce disconnections over illegal downloads despite the record companies’ complaints being merited. He also said this gap in legislation meant Ireland was not complying with European law.

Meanwhile defendant internet service provider UPC predictably said it would work to identify and address the main areas of concern in the file-sharing debate, doing everything it could, short of actually being helpful:

"UPC has repeatedly stressed that it does not condone piracy and has always taken a strong stance against illegal activity on its network. It takes all steps required by the law to combat specific infringements which are brought to its attention and will continue to co-operate with rights holders where they have obtained the necessary court orders for alleged copyright infringements. Our whole premise and defence focused on the mere conduit principle which provides that an internet service provider cannot be held liable for content transmitted across its network and today’s decision supports the principle that ISPs are not liable for the actions of internet subscribers".

It is not yet known what effect this decision will have on ISP Eircom's agreement with record labels, which it settled on out of court last year. Meanwhile the recording companies have consoled themselves with the small solace that for once they are characterised as occupying the moral high ground.

The IPKat can't help feeling sorry for the recording companies and for those whose employment and well-being depends on them, but the technology that facilitates illicit downloads and file-sharing is now available and isn't going to disappear.  New business models for investing in and promoting recordings aren't going to magic themselves into existence, and a public that has become addicted to free access to whatever it wants on the internet isn't willingly going to pay. The old order is dead, but the shape of the new order has yet to crystallise.  Meanwhile, it looks as if it's better to be a conduit than a creator.

Merpel wonders why the full text of this decision is not yet available on BAILII, and indeed why there have been no Irish High Court cases posted on BAILII since August.