UPC Wins

UPC, Ireland's third largest ISP, has prevailed in a court case brought against them by the Irish Recorded Music Association. IRMA had argued that UPC should enforce a three strikes rule against alleged file-sharers on their network using details provided by IRMA without any judicial oversight. Such a system makes the assumption that everyone accused is guilty and punishes entire households for the actions of one family member, it is abhorrent.

Previously Eircom, the largest ISP, had folded to these demands in an out of court settlement, followed shortly and meekly by the second largest, Vodafone.

Since the Irish arm of the recording industry began its efforts to bargain its way out of the grave, UPC had vowed to fight their demands for customer disconnections. Their argument was that, as a mere conduit, they could not be held liable for any supposedly illegal activities conducted by their users.

Is his judgement Justice Charleton pointed out that, just as UPC had indicated, the law does not require them to act against their customers in cases of alleged copyright infringement:

"It is not surprising that the legislative response laid down in our country in the Copyright and Related Rights Act 2000, at a time when this problem was not perceived to be as threatening to the creative and retail economy as it has become in 2010, has made no proper provision for the blocking, diverting or interrupting of internet communications intent on breaching copyright"

Word has it that two smaller ISPs, confusingly called O2 and 3, have been waiting on the outcome of these proceedings before deciding whether or not to contest similar cases brought against them by IRMA.

Looks like the floodgates of common sense have opened.

The question remains: how will this affect the agreement between IRMA, Eircom and Vodafone? Eircom were well aware that being the only ISP implementing a three strikes policy (especially one so biased toward the accuser) would put them at a competitive disadvantage in the broadband market. To mitigate this, part of their agreement included a mandate that IRMA would pursue similar cases against other Irish ISPs, essentially eliminating Eircom's handicap by breaking every other player's legs. Since Vodafone is also colluding with IRMA it seems safe to assume they were making the same demands. Now it looks like that part of the deal has fallen through, so does this mean the whole thing will be called off? Hard to say, but it seems unlikely considering Eircom did not wait until the case was over before sending out the their initial round of first strike warnings.

From the sounds of things, IRMA's next course of action will be to lobby the Irish government for changes to the law that would force everyone to buy buggy whips. Well, even if they succeed in this, at least there is a better chance of a presumption of innocence.

Naturally I would prefer that this industry not mutilate our laws as its final act of defiance. Better for them to fade away quietly and send musicians back to making money they way they are supposed to: by getting up on a stage and performing. After all, one cannot share "being there" over P2P.

  • Irish Times: "Last night, David Cullen, a partner with William Fry solicitors, said the ruling 'will have ramifications' for Eircom's agreement with the labels."
  • Independent: "Unlike many European countries, including the United Kingdom and France, Ireland has not made any provision for blocking internet sites intent on breaching copyright."
  • TechDirt: "Unfortunately, the judge did trot out debunked claims that file sharing was some how destroying the industry, even as more and more evidence has shown the exact opposite."
  • ISP Review: "the case itself revealed, above all else, that the legal system simply doesn't understand internet technology and Rights Holders (RH) are continuing to abuse that ignorance."

Recording Industry Now Owns 63% of Ireland's Internet

The story so far: The Irish Recorded Music Association (IRMA) have successfully persuaded Eircom, Ireland's largest broadband provider (42% of the market), to censor their service and threaten their own customers with disconnection if they are merely accused of illegal file sharing. In effect the recording industry have introduced a de facto three-strikes law with none of that pesky judicial oversight that might actually require them to spend money on lawyers. Of course this has put Eircom at a competitive disadvantage since both accused customers and actual files sharers will be compelled to jump ship for friendlier ISPs. So as part of their agreement IRMA have begun chasing down other Irish ISPs to force them to introduce the same conditions.

The news did not improve when Vodafone (also serving departed BT Ireland's customers) folded under IRMA's threats and is now in talks with them over the introduction of filtering and three-strikes on their service. Vodafone is the second largest provider with 21% of the market.

That's now 63% of all internet users subject to these draconian restrictions.

The one hope is UPC Ireland, the third largest provider with 15% of the market, who have vowed to fight IRMA on the grounds that there is absolutely no legal requirement for them to protect other people's intellectual property. There is some hope here for them as IRMA have not yet won a court case against an ISP. But with such a small fraction of the market at stake it seems unlikely that Eircom and Vodafone will use a win by UPC as grounds for cancelling their agreements with IRMA. Of course, IRMA can just keep suing UPC until their continued defiance starts to eat away profits -- after all, while UPC is a large international, IRMA is several large internationals.

There is a very real possibility that, over the next two or three years Ireland will become the first nation on Earth who's primary information infrastructure has fallen entirely under the control of the recording industry.

The reason for this totalitarian response? Mr Willie Kavanagh of EMI Music Ireland and chairman of IRMA claims that the recorded music industry in Ireland has halved in the last four years and that sales of recorded music are expected to drop another 12% this year. Against all available evidence from independent studies Mr Kavanagh and IRMA seem to be of the opinion that the blame for this decline can be laid squarely at the feet of illegal file sharing.

It is conceivable that their hypothesis will soon be put to the test.

I don't pirate music (not intentionally at least), but nor do I buy a lot of it. The little music I do purchase these days comes directly from the artists or, where that's not possible, from independent labels. If I can do neither of these things then I simply don't buy at all. This new regime will not alter this, it won't make me pay for more music. But how will it affect the music buying and listening habits of everyone else? Are the file sharers really going to start buying more CDs?

If sales continue to fall will the recording industry simply dry up and disappear from our shores (as Mr Kavanagh predicts in the next fives years without internet filtering and three-strikes)? Would that be enough to prove that it is not file sharing that is killing the industry but the simple fact that their services are no longer required? Would they use continued decline as justification for even more restrictions on ISPs? Might they massage their figures to show a levelling or even a rise in sales in an attempt to show that the measures are working and use that as "proof" that they need to be introduced in other countries?

How long will it be, at the current rate of decline, before the recording industry as a whole simply does not have enough money to continue this ill-considered war?

Time will tell.