THE HIGH COURTCOMMERCIAL[2009 No. 5472 P]BETWEENEMI RECORDS (IRELAND) LIMITED, SONY MUSIC ENTERTAINMENTIRELAND LIMITED, UNIVERSAL MUSIC IRELAND LIMITED, WARNERMUSIC IRELAND LIMITED AND WEA INTERNATIONALINCORPORATEDPLAINTIFFSANDUPC COMMUNICATIONS IRELAND LIMITEDDEFENDANT JUDGMENT of Mr. Justice Charleton delivered on the 11
th
day of October, 2010
1.
The plaintiffs, who I will call the recording companies, record andrelease music and video for sale. They seek injunctions againstthe defendant, an internet service provider, to prevent the theftof their copyright by third parties illegally downloading it overthe internet. The form of injunction sought is left to thediscretion of the court. Hence, I will analyse various technicalsolutions.
2.
Those enthused by music and video may legally buy it in a discformat or download it on the internet for a fee. Prices vary, butmusic in CD format or film captured on DVD can typically costbetween €10 and €20 in a shop. A CD will contain up to 80minutes of music, perhaps 15 tracks, and a DVD can store a 180minute film. This case is about music. Both music and films arewidely available for purchase to one’s home computer over theinternet. Because the material is in digital format, in the form of downloadable files, the quality is the same as that on a disc. Todownload a music track from the internet typically costs under€1 per music track but films are more expensive. All of thesedigital files are of original creative work. They are, as a matter of law, protected by copyright. Increasingly, as the evidence in this
case has demonstrated, such protection has been undermined tothe status of an empty formula. The recording companiescomplain that their entire business has been decimated bypiracy on the internet. They claim that a whole generation isgrowing up, who instead of purchasing recordings in hard formator by legal download, simply access the sites on the internet thatenable them to download for free the millions of music tracksthat are available illegally worldwide.
3.
The defendant, who I will call UPC, sells internet service to about15% of the Irish market. Its turnover is in the order of €250M peryear and the underlying nature of the business is profitable. Itemploys 800 staff. In its interface with customers it deals withabout 35,000 inbound calls per month, of which it answers about90%. Later in this judgment, I will refer in detail to the fact thata substantial portion of its 150,000 customers, or the children intheir teenage and twenties years of these customers, are usingthe internet service provided by UPC to steal copyright materialwhich is the property of the recording companies. UPC, as theinternet service provider, transmits, in digital form, this copyrightprotected music through its system and into, and out of, thehome personal computers that are used for copyright piracy.UPC claims it has no liability in respect of this activity because itis merely a conduit. The recording companies disagree.
4.
The recording companies say they are entitled to an injunctiveorder of the Court requiring UPC to stop this infringing activityfrom taking place over its network. The recording companiessay that UPC is in the best position to do this. The recordcompanies have communicated with UPC not only as to thenature of the problem, but by actually giving it details wherebythe infringers of copyright were detected, by the unique IPnumbers assigned to their computers, illegally downloading theirsongs; but that they have been ignored. The recordingcompanies claim that UPC is turning its face aside from thisproblem while maintaining a front of righteousness by having inplace a customer use policy that condemns internet piracy butwhich it ignores deliberately in order increase its profit. The
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customer use policy of UPC makes it very clear that the internetservice of UPC cannot be used to steal copyright material. This isa matter of contract, and for a breach of this obligation by thecustomer, UPC can terminate the contract. It never does. It isnot so inclined.
5.
At the end of their amended statement of claim, the recordingcompanies are specific only to this extent as to what they seek:-“1.An injunction, pursuant to s. 37 and s. 40(4) of the Copyrightand Related Rights Act, 2000, restraining the defendantinternet service provider from infringing the copyright insound recordings owned by, or exclusively licensed to, theplaintiffs by making available to the public copies of thosesound recording without the plaintiffs’ consent using itsinternet service facilities.2.Without prejudice to the generality of the foregoing order, anorder pursuant to s. 40(4) of the Copyright and Related RightsAct, 2000 that the defendant block or otherwise disableaccess by its subscribers to the website thePirateBay.org andrelated domain names, IP addresses and URL’s, as set out inthe schedule hereto attached, together with such otherdomain names, IP addresses and URL’s as may reasonably benotified as related domain names by the plaintiffs’ to thedefendant from time to time.”
6.
Preferably, the recording companies seek a three strike solution:they would monitor the internet for infringements, inform UPCwho then would be required on each occasion of breach of copyright to warn the infringer, up to three times, and then todiscontinue service. In the alternative, blocking and diversionequipment is sought to be imposed on UPC by court order. Thesealternatives are later described in detail.
7.
In defending this claim, UPC state that there is no liability in lawfor acting as a mere conduit for copyright infringement, and thatit neither initiated the communication involved in piracy, chosethe recipient, altered the information nor condoned the activity.In other words, sections 37, permitting an injunction, and 40(4)of the Copyright and Related Rights Act 2000 (“the Act”),
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EMI v. UPC
This is the full text of the judgment of Charleton J. in EMI v. UPC on 11 October 2010 which considers whether Irish ISPs may be required to block access of users to filesharing services.
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