Virgin must take steps on illegal music downloading, court rules

Appeal court upholds decision requiring UPC owner to impose ‘three strikes’ policy on customers

The country's second largest internet service provider, Virgin Media, must take steps to deal with illegal music downloading, the Court of Appeal has ruled.

The court upheld a March 2015 High Court decision requiring UPC, since taken over by Virgin, to set up a regime whereby infringers of copyright are identified, warned and their service withdrawn if they do not desist.

Subject to a minor variation, the High Court order in favour of Sony, Warner and Universal companies should apply, Mr Justice Gerard Hogan said on behalf of the three-judge appeal court.

That variation is that a five year review of the regime would not apply.

Virgin would be entitled to apply to the court again if there are fundamental changes in circumstances or other significant changes which may merit a change in the order, or even its discharge, the judge said.

UPC/Virgin had appealed the High Court decision arguing, among other reasons, that because it (UPC) was not the infringer of the copyrighted music, the court had no jurisdiction to make the orders it had.

It was argued the order would more appropriately apply to a specialist regulator vested with the appropriate expertise and best placed to make policy decisions of this kind.

The music companies disputed those arguments and said, under EU directives protecting copyrighted material, the court had jurisdiction to make the order.

The appeal also raised questions about the jurisdiction of the Irish courts to grant injunctions and the interaction of national and EU procedural law in regard to this.

Mr Justice Hogan said the order was necessary and it satisfied the requirements of a 2001 EU directive on copyright.

He also found the regime proposed by the High Court for the sharing of the capital costs of a software programme for detecting the illegal downloading was correct.

Under this system, estimated to cost between €800,000 and €940,000 over eight years, UPC/Virgin is to pay 80 per cent of the costs while the music companies pay for the rest. UPC argued the music companies should pay three-quarters of it.

It would be hard to improve on this reasoning, Mr Justice Hogan said.

The appeal court also backed a proposal the number of notifications to downloaders should be limited to 2,500 per month.

These notifications will involve a “three strikes” policy whereby the subscriber is warned in two letters to desist before being cut off after the third warning.

Mr Justice Hogan also found it was not necessary to make a reference to the Court of Justice of the EU in relation to a number of questions raised by UPC/Virgin, including whether the “three strikes” policy was compatible with the 2001 EU copyright directive. He said the EU court had already indicated, in another context, where certain principles had already been determined by that court, then no further question of interpretation of EU law arose.