Legal action to stop UPC users downloading illegally

UPC argue a graduated response proposal raised a ‘serious question of freedom of expression and public policy’

Three major music and entertainment companies have brought a legal action aimed at compelling UPC, Ireland’s second largest internet service provider, to move against subscribers involved in illegal downloading here of music, film and other material.

Willie Kavanagh, chairman of the Irish Recorded Music Association, said UPC’s refusal to implement a graduated response process similar to that being operated by Eircom was “profoundly disturbing” in a context of several court decisions supportive of the companies’ moves to combat illegal file sharing.

In an affidavit for the companies, Mr Kavanagh said IRMA had provided evidence of infringement of the companies’ copyright by subscribers to UPC.

Evidence of 7,757 infringements of copyright in a sample 250 sound recordings over the month of November 2013 was provided to UPC, plus details of the infringing subscribers’ IP addresses, he said.


Mr Justice Peter Kelly today agreed to fast-track in the Commercial Court the action by Sony Music Entertainment (Ireland) Ltd, Universal Music Ireland Ltd and Warner Music Ireland Ltd against UPC Communications Ireland Ltd.

The parties are to exchange legal documents before the case is mentioned before the court again in April.

Jonathan Newman, for the companies, said yesterday there would be an issue whether new copyright regulations introduced in 2012 gave the court power to make the order sought by the companies.

Cian Ferriter SC, for UPC, said the application raised “novel and significant” issues.

In his affidavit, Mr Kavanagh said UPC’s own terms of use prohibit subscribers using the internet service for copyright infringement.

He also referred to High and Supreme Court decisions of 2010 and 2013 relating to illegal downloading.

UPC was being asked to adopt a process similar to that being used by Eircom, the ‘three strikes and you’re out’ protocol involving infringers being warned about the consequences of infringement before any step is taken to terminate their internet service contracts, he said.

The graduated response process as used to date had proven “remarkable effective” with less than 0.2 per cent of users proceeding to the point of their contracts having to be terminated, he said.

However, UPC, in a letter last month responding to the companies warning of legal proceedings unless a graduated response process was implemented, had described the threatened action as “a test case”.

UPC argued any graduated response system should be the subject of specific legislation and said the graduated response proposal raised a “serious question of freedom of expression and public policy and demands fair and impartial procedures in the appropriate balancing of rights”.

The letter also complained there was no legal basis for taking legal action against UPC alone.

Mr Kavanagh said those claims that a graduated response would violate the rights of subscribers and be unfair to UPC were rejected by Mr Justice Peter Charleton at the High Court in 2010.

The Supreme Court had also last July dismissed the Data Protection Commissioner’s appeal against a High Court decision setting aside his notice requiring Eircom to stop operating the graduated response process.

The companies were also “confused” by UPC’s attitude to this matter when it had not previously objected to orders requiring it and a number of other ISP’s to block access by their subscribers to the Pirate Bay and Kat file sharing websites, he added.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times