Case against UPC over illegal downloading begins

Three music companies claim UPC Communications, the country's second largest internet service provider (ISP), must be forced by court order to move against those of its subscribers who illegally download music and other copyrighted material.

Such activities amount to “wholesale theft”, the Commercial Court was told.

The Irish companies of Sony Music, Warner Music and Universal Music want injunctions requiring UPC to apply rules to combat illegal downloading which have already been agreed with the largest ISP, Eircom.

The Commercial Court has begun hearing the three companies' application for injunctions against UPC in proceedings before Mr Justice Brian Cregan due to last up to eight days.

The court heard evidence had been provided of copyright infringement by UPC subscribers.

In the month of November 2013, evidence of 7,757 infringements of copyright in a sample 250 sound recordings was provided to UPC, plus details of the infringing subscribers’ internet addresses, the court heard.

UPC was asked, but declined, to adopt the “three strikes and you’re out” protocol being used by Eircom. That involves infringers being warned twice about the consequences of infringement before a third step is taken to terminate their internet service contracts.

It is claimed, where this process was used, it had proven “remarkably effective”.

UPC argues a graduated “three strikes” policy should be subject to legislation as it involved the question of freedom of expression and the balancing of rights.

Opening the case for the music companies, Michael McDowell SC said a graduated response system is a reasonable, achievable, practicable and affordable step for UPC to take. UPC could come up with its own alternative graduated approach, whether it be "two strikes" or "five strikes", he said.

Mr McDowell said it was an “illusory remedy” to suggest illegal downloading, through “peer-to-peer” file sharing, could be dealt with by shutting down “Pirate Bay” type websites as the providers of these sites simply circumvented these measures.

Mr McDowell said there were a number of agreed facts between his clients and UPC including that the illegal downloading was taking place and that its internet service was being used to facilitate “wholesafe theft”.

He also argued UPC was refusing to adopt the graduated response because it knew that refusal gave it an advantage over competitors.

Cian Ferriter SC, for UPC, said his client had no difficulty in handing over information, subject to court order, which the music companies can then pursue but what was actually being sought was that UPC set up an "entire system" to deal with this issue itself.

Counsel said suggestions that people were “flocking” to UPC because it did not operate a “three strikes” policy were unfair and not borne out by the evidence.

The case continues.