EMI Records v UPC – the case for legislative solutions to illegal file sharing

October 11th, 2010 by Barry Sookman Leave a reply »

Earlier today, the Irish High Court released its decision on whether it would grant an injunction against an ISP (in this case UPC) requiring it to implement a graduated response solution to reduce unauthorized file sharing of music. After reviewing a large amount of evidence and hearing from experts, the Court ruled that this type of order would be just and proportionate. However, it ruled that it lacked the jurisdiction to make such an order.

Here are some of the important findings made by Justice Charleton, the same judge who presided over the EMI Records & Ors -v- Eircom Ltd, [2010] IEHC 108 case :

  • The business of the recording industry is “being devastated by internet piracy”. Internet piracy undermines their business but also “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.”
  • The “scourge of internet piracy” strongly affects Irish musicians. Internet piracy is an economic and a moral problem.
  • Surveys show a loss of between 20% to 30% as a proportion of decline in sales to what is illegally downloaded. The ratio of unauthorized downloaders per broadband internet line is 1:0.42.
  • ISPs “have an economic and moral obligation to address the problem”. In the case UPC it did not do so, fully knowing it facilitated infringing conduct, to increase its levels of profits. UPC’s attitude towards illegal file sharing by its subscribers was neither reasonable nor fair. UPC had “no interest in doing anything other than making deceptive noises by reference to its acceptable usage policy”. UPC intended to do nothing about copyright piracy.
  • Norwich orders are available to identify persons sharing files illegally, as was recognized by the Canadian Federal Court of Appeal in the BMG case. However, this process “is burdensome and, ultimately, futile as a potential solution to the problem of internet piracy”.
  • A graduated response solution involving “detection, notification and termination” “is viable and proportionate”. According to Justice Charleton “The evidence analysed in the course of this judgment also establishes that detection, warning, and discontinuance are, each of them, proportionate to the vast scale of the problem established in evidence”.
  • A graduated response solution comprising detection and three warning notices with the threat of account termination “will succeed in strongly alleviating the problem of internet piracy”. “There is a strong probability that a graduated response would yield a majority level of desistence from the practice of illegal downloading on a first warning”.
  • Privacy considerations  would be no bar to granting the form of relief requested.
  • The evidence convinced the trial judge that “there is no just or convenient solution open to the record companies other than seeking injunctive relief against the” ISP, in this case UPC.
  • The record labels had also asked the court to grant an injunction requiring UPC to block access to the Pirate Bay. The court was willing to do so, but could not because Irish law did not authorize such relief, although it was available in other European jurisdictions.

A lot has been written about graduated response solutions to the problems of illegal file sharing over the internet. See, Prof.Bomsel Decreasing Copyright Enforcement Costs: The Scope of a Graduated Response,Prof. Bridy, Graduated Response and the Turn to Private Ordering in Online Copyright Enforcement, Prof.Strowel, Internet Piracy as a Wake-up Call for Copyright Law Makers—Is the ‘‘Graduated Response’’ a Good Reply?, Barry Sookman and Dan Glover Graduated response and copyright: an idea that is right for the times. The EMI v UPC case adds further reflections on the issue. This case is a must read for anyone concerned about internet piracy and the legislative solutions needed to help curb it.

The judgment in full is set out below.

EMI v. UPC

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