Three strikes rule aims to knock out music sharing

JOHN COLLINSexamines the music industry's latest approach to online sharing of music – the "graduated response"

WHAT IS THIS THREE STRIKES SYSTEM?

Eircom has agreed a new process with the music industry which will see its broadband subscribers cut off if they are caught sharing certain copyrighted music online.

The first time the internet protocol (IP) address assigned to a particular subscriber is detected sharing the music, Eircom will contact them to discuss the issue. If it happens again, Eircom will send the subscriber a letter warning them that their service will be withdrawn for seven days should they be caught a third time. On the third occasion the subscribers IP address is detected the service will be withdrawn for a week. Should the same subscriber be caught sharing music a fourth time their broadband service will be cut off for one year.

The approach is known as three strikes, as in “three strikes and you’re out”, or the music industry’s preferred term, graduated response.

The system is being put in place following an out of court settlement in February 2009 between Eircom and the Irish Recorded Music Association (Irma) which represents the four major music companies: EMI, Sony Music, Universal and Warners.

WHAT IS BEING MONITORED?

Irma is only looking at peer-to-peer networks. These networks allow users legitimately to share files such as open source software, but are primarily used to share copyrighted music and films. As revealed by a Prime Time Investigates documentary earlier this week, these networks are also now being used by paedophiles to exchange imagery of child abuse.

Popular software used to access peer-to-peer networks includes BitTorrent, Limewire, Azureus, Kazaa, eMule and Gnutella.

WHO IS BEING MONITORED?

Irma has made it clear it is not interested in going after people who simply download music. Instead it is going after those who make their music available for others to download.

However, it should be noted that the default setting on most peer-to-peer software shares a user’s music library. As a result, many less-savvy users may be unwittingly in the firing line.

HOW DOES IT WORK?

Irma has employed US firm DTecNet to monitor traffic on a number of unnamed peer-to-peer networks. It has supplied DTecNet with a list of several hundred songs whose copyright is owned by their members. If DTecNet finds Eircom subscribers making these songs available for download it passes the details to Irma. The IP addresses are then passed to Eircom who contacts the subscriber. No details of Eircom subscribers are being passed to Irma.

Eircom is conducting a three-month pilot of the system during which time about 50 IP addresses a week will be processed for Irma. Eircom has said a pilot is necessary to iron out any issues before a full implementation.

IS MY SERVICE PROVIDER SIGNED UP?

Eircom is the only provider publicly admitting its involvement. Vodafone, now the second largest provider of fixed-line based broadband, and Eircom’s mobile subsidiary Meteor are understood to be in negotiations with Irma. Dick Doyle, director general of Irma, says two other operators have put three strikes in place but he has declined to name them saying this is a matter for the service providers.

Irma recently lodged initial legal papers against mobile operators O2 and 3 Ireland in an effort to get them to sign up. UPC Ireland has resisted any attempts by Irma to force it to introduce the system and is fighting this in the courts. Eircom provides DSL lines to other providers on a wholesale basis but these customers are not covered by the agreement.

WHAT SHOULD I DO IF MY ISP GETS IN TOUCH?

Eircom is stressing that it is keen to educate its customers and will not adopt a heavy-handed approach. It will write to the subscribers suspected of sharing copyrighted music and will also attempt to call them on the phone, according to Eircom head of communications Paul Bradley.

The first time a particular IP address is flagged Bradley says Eircom will talk to the customer about how they can prevent a repeat offence. This is clearly a reference to subscribers who may have children or other people in their home using the connection.

“During the pilot phase, we will work through issues with customers,” said Bradley. “If they believe their network is being used by someone they are unaware of, we will help them to secure it.”

The former state telco has 750,000 broadband customers. Given that Eircom is processing about 50 complaints a week for Irma during the pilot phase, the chances of being one of those contacted during the pilot phase is quite low.

WHAT IS THE STATUS OF ALLTHIS UNDER IRISH LAW?

The deal with Eircom was done out of court and so it is not binding on other providers. UPC’s case is due in court on June 17th and is listed for a three-week hearing.

The Data Protection Commissioner challenged the Eircom/Irma deal in the High Court earlier this year as it claimed a subscriber’s IP address was personal data and should not be shared between the two companies. This is the basis on which three strikes legislation has been blocked in other jurisdictions.

In April, Mr Justice Peter Charleton found in favour of the record labels ruling that an IP address is not personal data under the Data Protection Commissioner’s definitions. The decision gave the green light to Eircom to proceed with its pilot. The music industry, including U2 manager Paul McGuinness, was delighted with the High Court decision which found it was not disproportionate to cut off off internet access because of three infringements of copyright as proposed by Eircom and the music companies. Mr Justice Charleton also ruled that there were adequate personal safeguards in the agreement between the two parties.

IS IRELAND UNIQUE IN IMPLEMENTING THIS APPROACH?

Graduated response is emerging as the music industry’s preferred response to online sharing of its output. Previous attempts, –particularly in the US, to sue individual downloaders turned into a PR disaster and backfired spectacularly. Ireland is the first country where the system has been put in place for such a large proportion of the State’s broadband users.

The Digital Britain Act, passed by the outgoing Labour government, allows for the introduction of three strikes but there is no current plan to do so.

In France the so-called Hadopi law was passed with support from President Nicolas Sarkozy but was subsequently thrown out by the Constitutional Court for breaching privacy rights. Courts in Sweden, Germany and the Netherlands have ruled that IP addresses are personal data so a graduated response is not an option.

DOES IRMA BELIEVE IT CAN STAMP OUT ONLINE SHARING OF MUSIC?

Dick Doyle points to international research which suggests that 80 per cent of file sharers desist when formally contacted by their service provider. If it were to convert that amount of people to legal services in Ireland, it would easily have covered the costs of its various legal actions.

Eircom has created an information website about its graduated response to online file sharing at www.eircom.net/legalmusic