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File Sharing: The Music Industry v. Ireland - EMI v. UPC and related cases.

File Sharing: The Music Industry v. Ireland - EMI v. UPC and related cases.

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Published by Mícheál O'Dowd

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Published by: Mícheál O'Dowd on Nov 17, 2010
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07/19/2011

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The Music Industry v. Ireland
 – 
A Chronology
Mícheál O
‟Dowd
 
 In the Beginning there were tapes
It is hard to say where the story of the unauthorised copying of music began. The
1980s brought with it the British Phonographic Industry‟s infamous slogan “Home
Taping is killing m
usic”
, but by the turn of the century few people were still hoveringover the record button on their radio cassette for the top 40 countdown. They hadmoved onto using the internet for same purpose.There can be no question but that the Music Industry has a right in most developedlegal systems to control who can download or otherwise deal in what is their property.In Ireland this is enshrined in the Copyright and Related Rights Act 2000.Metallica can perhaps be credited with launching the first legal salvo againstunauthorised music downloading. The target was the then pre eminent file sharingprogramme, Napster, in a California Courtroom in 2000
1
. In A&M Records, Inc. v.Napster, Inc. it was held by the Ninth Circuit that the owners of Napster the softwarewhich was facilitating the breach of copyright, could control the infringing behaviourof users, and as such were obliged to do so.The simple solution to the ruling A&M Records, Inc. v. Napster, Inc. was that lateriterations of similar software such as Gnutella removed discretion from the equation.Technology, rather than law tends to govern what is possible and not possible in therelm of sharing data and the Gnutella network was designed to be decentralised, withno one having any control over the content that it carried. No one could then shut itdown. For the Music Industry there was no longer any practical gain in pursuing thesoftware developers through the courts. To paraphrase WB Yeats, all changed,changed utterly and a terrible beauty was born.While the music industry proceeded to shut down another first generation centralisedmusic sharing service in 2005
2
, the new approach was to target individual users, theiremployers, universities, and in some cases parents. Hard case stories abounded,
including one where a woman described by a Federal Judge as an “Internet
-illiterateparent, who does not know Kazaa
3
from kazoo, and who can barely retrieve her e-
mail” was sued for having a large amount of Gangs
ta Rap on her PC. The individualin question, Patricia Santangelo had two adult children, who had downloaded themusic. After 4 years, two court cases and hundreds of thousands spend on legal feesthe Recording Industry Association of America settled the case for $7,000.
4
Thepolicy of suing individuals was publically discontinued in the US in the 19
th
 December 2008 in favour of reaching individual agreements with Internet Service
1
2
3
A file sharing program
4
 
Providers to cut off users.
5
 
The era of the “Three strikes” had begun
in the US andwould soon be followed in Ireland.
6
 
 EMI v. Eircom (I)
 – 
The Norwich Pharmacal Order
In Ireland, the approach of the music industry has largely mirrored the US. In EMIRecords (Ireland) Ltd & Ors v. Eircom Ltd & Anor [2005] IEHC 233
7
the music
industry applied to the High Court for a “Norwich
 
Pharmacal Order”
requiring anInternet Service Provider to disclose the names of downloaders. The MusicCompanies had through their use of the Mediasentry sniffing programme uncoveredthe internet protocol (IP) addresses of people who had made music available fordownload. An IP address contains 4 sets of three numbers varying from 0 to 255separated by full stops i.e. 192.168.1.2, and allows data be routed over the internetfrom one computer to the other. While it can identify a particular computer, it doesnot generally allow for an individual be personally identified.Using the UK precedent of Norwich Pharmacal
8
they sought to find out the names of the 17 people behind the mask of cryptic numbers. The rule in Norwich Pharmacalprovides as follows:
“If t 
hrough no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing, he may incur no personal liability,but he comes under a duty to assist the person who has been wronged bygiving him full information and disclosing the identity of the wrongdoers.
This was accepted in Irish law in
 Megaleasing UK Ltd. -v- Barrett 
and the ordersought by the Music Industry was granted by Mr. Justice Peter Kelly.The High Court Judge also noted that there was no suggestion of any wrongdoing onthe part of Eircom, and that their opposition to releasing the names stemmed from theduty of confidentiality they owned to their subscribers. He made the order releasingthe names of the 17 conditional on their names being kept from the public domainsave in circumstances where it might arise in the context of infringement proceedingsbeing as a result of the information gathered on foot of the order. Whether thiscondition protected the privacy of the 17 or gave them an added incentive to settle forwhatever amount requested by the Record Companies is arguable.A second round of proceedings seeking the identities of 49 subscribers from IrishISPs was brought to a successful conclusion in January 2006 in similar terms, and theprocess continued on into 2007
9
. Of the subscribers identified by court action allsettled and none proceeded for full hearing.
10
 While there was no official announcement like their US counterparts, the RecordCompanies in Ireland must also have felt their approach was laborious and expensive.
5
6
7
8
9
10
EMI Records (Ireland) Ltd. & Ors, v. UPC Communications Ireland Ltd., p32
 
It cost the Music
Industry €680,000 in legal fees to
identify 89 individuals from
whom €80,000 was recouped in settlements.
11
 The record companies clearly felt they had to change their enforcement tactics. Whilethey still recognised the ISP to be an innocent bystander in grand scheme of events,they came to the opinion that they should be doing more to uphold copyright inrecorded music. An action was brought against Eircom Ltd., the largest ISP in Irelandon the basis it had facilitated the breach of copyright.
 EMI v. Eircom (II) - The Three Strikes Settlement
The basis of the action lay in section 40(4) of the Copyright and Related Rights Act2000. This provides as follows:
(3) Subject to subsection (4), the provision of facilities for enabling the makingavailable to the public of copies of a work shall not of itself constitute an act of making available to the public of copies of the work.
(4) Without prejudice to subsection (3), where a person who provides facilities referred to in that subsection is notified by the owner of the copyright in the work concerned that those facilities are being used toinfringe the copyright in that work and that person fails to remove thatinfringing material as soon as practicable thereafter that person shall also be liable for the infringement.
The record companies no doubt contended as they later would in EMI v. UPC that bytheir inaction in refusing to disconnect users who could be identified as file sharersusing sniffing software (by 2009 Dtecnet rather than Mediasentry was the preferredsoftware) were complicit.Eircom settled the action before it went to hearing with the first Irish implementationof the three strikes rule. It was agreed that the Irish Recorded Music Association(IRMA) would send Eircom notifications containing among other things the IPaddresses of individuals they had detected as engaging in file sharing. Eircom wouldthen match the IP address to the account it was assigned to at the time the alleged filesharing took place. The end result was that on the third written warning the user couldrun the risk of having their internet connection cut off.
 EMI v. Eircom (III) - The Blocking of Piratebay
Despite th
e “three strikes settlement”
, Eircom found themselves in Court again in Julyof 2009
12
, again pursuant to section 40(4) of the Copyright and Related Rights Act2000. In this case the representatives of the music industry sought an injunctionagainst Eircom to block access to the website
“thepiratebay.com”
. A pattern in
Eircom‟s attitude to these cases was beginning
to emerge.
11
ibid
12

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