ANALYSIS: GIVEN THAT Mr Justice Peter Charleton had previously been lauded by the music industry, and U2 manager Paul McGuinness in particular, for his tough stance against copyright infringement online, his decision that there is no basis in Irish law to disconnect persistent filesharers was not expected.
In his 78-page judgment the judge makes it clear that he believes “the business of the recording companies is being devastated by internet piracy”.
He is also highly critical of UPC’s approach. In particular he notes that the company is able to manage traffic on its network for its own commercial reasons. It also pursues customers who exceed their monthly download limits and ensures they are moved to a more expensive monthly package when this occurs.
Despite this his reading of the relevant Irish laws is that he has no power to force ISPs (internet service providers) to terminate the connections of users engaged in copyright theft.
In practical terms what this means is that Irish internet users will not be disconnected for engaging in music piracy. Charleton noted that in the majority of cases it is the children or employees of the bill payer who are engaging in illegal activity.
Following its January 2009 out-of-court settlement with the Irish Recorded Music Association (Irma) Eircom had been trialling a three-strikes approach, while Vodafone has been in discussions with Irma about implementing a similar system. Eircom has yet to disconnect any customers for illegal downloading.
Last night, David Cullen, a partner with William Fry solicitors, said the ruling “will have ramifications” for Eircom’s agreement with the labels.
The internet providers, Irma and the Government are now going to have discussions to try and produce a workable system.
One proposal that will have to be on the table is that the ISPs pay an annual licence fee to cover their users’ consumption of music. Although it’s an idea that is gaining traction internationally it is not one favoured by the record industry.
But as Charleton noted, a whole generation of young people are being lost to music piracy. The move to digital transmission means it is just not possible to stamp out piracy completely. It is just too easy for people to share music online.
The Irish record labels have to date largely focused on enforcement but yesterday began to talk more about a “carrot and a stick” approach. The carrot will be a new Eircom music service, similar to those already available in other European countries, whereby people will be able to listen to as much music as they want on their PCs for a flat monthly fee.
While Charleton said he believes ISPs have “an economic and moral obligation to address the problem” as it stands now there is no legal basis to force them to do so.
Speaking to reporters outside the court Irma chief executive Dick Doyle called on the Government to introduce new legislation and suggested his members may seek compensation for loss of earnings. Given the current state of the public finances any such move would be fiercely opposed by the State.