Irish majors aim a punch at Eircom
Mary Carolan caught this one. The big boys in the Irish record business - EMI Music, Warner Music, Universal Music and Sony-BMG - are gunning for Eircom and it’s a battle about to feature in a Commercial Court room near you. The case is the first in Ireland taken by labels aimed at internet service providers, rather than individual downloaders.
The companies want orders - under the Copyright and Related Rights Acts 2000 - restraining Eircom from infringing copyright in the sound recordings owned by, or exclusively licensed to them, by making available (through Eircom’s internet service facilities) copies of those recordings to the public without the companies’ consent.
The record companies are also challenging Eircom’s refusal to use filtering technology or other measures to voluntary block, or filter, material from its network that is being used to download music in violation of the companies’ copyright and/or licensing rights.
Eircom’s retort?
Eircom’s lawyers said the company was not on notice of specific illegal activity that infringed the rights of the companies and had no legal obligation to monitor traffic on its network.
Interestingly, this case is being taken by the four labels rather than the Irish Recorded Music Association (IRMA), the lobby group for Irish record labels.
Any legal eagles who want to break this one down for us?
UPDATES Here are the links to further analysis of this move by Daithí and Jason.
Why Eircom and not any of the other ISPs?
Record companies really are arrogant cunts. Did they take BASF or TDK or the people who made 5-pin din cables to court for enabling home taping?
Cunts.
Comment by Twenty Major | March 10, 2008 at 10:05 pmSounds to me like the record companies are p*ssing against the wind on this one. Even if they (the record companies) win the case, I can’t see how the ISPs can successfully block illegal downloading.
Comment by Sean | March 10, 2008 at 10:21 pmCan’t comment on the legality but its very easy for ISP’s to block P2P traffic for example. A lot of smaller ISP’s do it.
Comment by toto | March 10, 2008 at 11:21 pmThe record companies did sue Amstrad for selling equipment that allowed high speed dubbing. They lost the case on the grounds that such equipment could just as well be used for legitimate purposes, whatever they might be.
Comment by Tom Ennis | March 11, 2008 at 12:59 amReckon this case shouldn’t succeed. AT&T (I think) established early on in the development of telephony that any person could place any call without favour or censorship. Pretty sure this principal will hold up when applied to data exchanged over the same networks.
I’d imagine they’ve taken the case against Eircom because its the largest provider by a country mile. If they win, could conceivably knock out a bloody great chunk of ‘illegal’ downloading and also establish a precedent for working down the list of other providers.
In fairness even if they win it’ll be fairly Pyrhhic- can’t see people suddenly flocking back to buy CDs. There are already many ways to avoid any filtering that Eircom could possibly apply and relatively simple enough for the average person to avail of.
Strange feeling though- I actually wish Eircom well
You won’t find a better discussion of this case than Dathai Mac Sithic’s post on Lex Ferenda http://www.lexferenda.com/11032008/the-record-companies-vs-the-isp-in-ireland/
Comment by Simon McGarr | March 11, 2008 at 7:44 ameircom is written with a lower case ‘e’. Now.
Comment by Brock Landers | March 11, 2008 at 9:27 amre: toto. Which ISPs block P2P? As has been touched on above, ISPs have no right to ban P2P/BitTorrent traffic as it has perfectly legal and indeed, critical tasks to perform for internet users.
As has been said above and no point in repeating it, most of us are aware at this stage that “filtering” will have no long-term effect against file-sharing.
It’s here to stay folks, and that’s that.
Comment by Steve K | March 11, 2008 at 9:47 amFrom section 7(3) of the Act:
“(3) Copyright in a work is infringed by any person who, not being the owner of the copyright, and without the licence of the owner thereof, does, or authorises another person to do, in the State any of the acts referred to in subsection (1) of this section.”
On that basis I think the record companies will lose the case as they will have difficulty (under subsection 3) proving that Eircom has breached copyright itself or authorised others to breach copyright. The record companies claim that eircom have failed to take measures to prevent copyright infringement; however, failure to take preventative action is not an offence.
Comment by Mumblin Deaf Ro | March 11, 2008 at 9:53 amI’ve tried to summarise some of the legal issues here although it’s hard to say anything concrete at this early stage…
Comment by Daithí | March 11, 2008 at 10:22 am“Can’t comment on the legality but its very easy for ISP’s to block P2P traffic for example. A lot of smaller ISP’s do it.”
Not if the traffic is encrypted by the client software.
Comment by Sean | March 11, 2008 at 10:31 amI blogged about this [over here on taint.org](http://taint.org/2008/03/11/113449a.html).
by the way toto, it is indeed easy to block p2p traffic — including the legitimate uses. There’s a good deal of legit BitTorrent usage out there. You can see how well that worked for the record companies, in the Amstrad case Tom Ennis mentioned.
Comment by Justin Mason | March 11, 2008 at 10:46 amdammit, forgot to switch my markup formats
here’s that link again.
Comment by Justin Mason | March 11, 2008 at 10:47 amban cassetttes and tape recorders and other such witchcraft. the record companies are right, they should be allowed make the same huge profits they recieved in the past.
Comment by petee | March 11, 2008 at 10:52 amIf this succeeds, it’s unclear how ISPs couldn’t be held culpable for all kinds of copyright infringement: if someone downloads something to their hard drive off google image search, would the onus not now be on the ISP to stop this (ridiculously difficult as it may be) given the precedent set? And what if an employee of one of the record labels, legally allowed to go to a secure site of the record label and download artist mp3s … how would the ISPs intercept and then allow that? There’s so many reasons why technologically this won’t work. I just hope that the courts don’t bow to the ridiculous whims of a corporate interest group trying to protect their dieing industry.
Comment by jazz biscuit | March 11, 2008 at 11:54 amISPs can block anything until they drive users to encrpt (end to end) everything, but they can go out of business not forwarding traffic. Compelling ISPs to block P2P is a short ride to oblivion since some large CDNs have already started using P2P for pay-per-view live and on-demand TV and bittorrent also has legit users -these will
a) argue that this legitimate set of use means that blanket blocking by ISPs is not reasonable
and seperately
b) that monitoring use is almost certainly illegal in european law, so one cannot ask ISPs to take on this responsibility just because some users might be downloading (or uploading) unpaid for copies of something
and
c) the performance and therefore cost of such a monitoring system probably makes the ISPs business non viable
what you should ask is why someone doesn’t sue these record companies for
i) wasting court time (and the public’s)
ii) wasting musicians revenue on lawyers instead of trying to ship larger numbers of cheaper copies to more people (sell more at lower price coz the overheads are lower = larger revenue)
oh, i forgot - of course, people on the net have more discernment than to buy drivel like britney spears or U2..
Comment by crowcroft | March 11, 2008 at 12:20 pmAccording to the bill cited by these companies, illegal lending of music “does not include loan to family or a friend for private and domestic use”. Criminality of simply giving copyrighted materials away is not discussed. Even excluding the specifications regarding the term “lend/loan”; making available an “infringing” or pirated copy is illegal, not a legal copy. It is also important to note that accessing the illegal/legal copy is not criminal. I would like to know what part of this law the Record Labels are referring to.
The Bill is available at http://www.irlgov.ie/bills28/acts/2000/a2800.pdf
The relevant section is 140.
Comment by Vita Coleman | March 11, 2008 at 1:24 pmReally surprised this hasn’t generated more comments…
Comment by Twenty Major | March 11, 2008 at 2:12 pmTwenty - I’m in Texas at South By Southwest all week hence why comments are a little later than usual in getting approved.
Comment by Jim Carroll | March 11, 2008 at 2:23 pmAhh, didn’t realise you were doing the approval thing. Carry on!
Comment by Twenty Major | March 11, 2008 at 2:33 pmHave to do the approval thing because of the very nice people trying to get me to link to their poker and porn sites.
Comment by Jim Carroll | March 11, 2008 at 2:34 pmcrowcroft puts it just right. ISPs can’t ban P2P or BitTorrent, as it’s legitimate uses are too critical. Tt would be akin to banning the German language in order to stop the spread of Nazism.
They can’t successfully monitor if copyrighted material is being shared because of encryption.
There’s no technical solution and surely the record companies know it. Something should be done about these sarcastic sons of bitches.
Comment by Steve K | March 11, 2008 at 2:35 pmAS far as I know NTL/UPC or whatever they call themselves have blocked P2P traffic. Other smaller ISP’s also have. They just block the ports used by P2P networks..i know there is a load of variables around that but thats a simplified version of how they block it
Comment by toto | March 11, 2008 at 3:08 pmJim, we could all use some mid-afternoon titillation. Let us at those blueys!
Comment by Steve K | March 11, 2008 at 3:37 pmAS far as I know NTL/UPC or whatever they call themselves have blocked P2P traffic.
I don’t think they have.
Comment by Twenty Major | March 11, 2008 at 4:01 pmI’m pretty sure NTL aren’t blocking p2p; they’re attempting to throttle it, but this thread on boards.ie seems to suggest that turning on encryption defeats that.
Comment by Justin Mason | March 11, 2008 at 9:30 pmIt’s all a bit like bolting the stable door when the horse has already legged it, is living in a new valley and has sired a few generations of grand kids. Too little, too late.
Comment by Hamlet Sweeney | March 16, 2008 at 2:05 pm