EIRCOM HAS agreed before the Commercial Court to consider information from experts relating to the operation of filtering or blocking systems intended to deter the illegal downloading of music.
While Eircom was prepared to agree to its own experts getting advice about such filtering systems, its counsel Paul Coughlan said yesterday there was an issue as to whether such filtering systems may damage Eircom's own.
Michael McDowell SC, for four record companies who are suing Eircom over illegal downloading, said if Eircom took a filtering system on board, it would address a lot of the companies' complaints.
He said such systems worked by monitoring material being downloaded and identifying "tagged" copyright items so as to interrupt their transmission.
The record companies say certain specialised software, such as that provided by the US-based Audible Magic Corporation, can filter peer-to-peer traffic and block specified recordings from being shared.
Eircom told the companies last October it was not in a position to run the Audible Magic software on its servers. It also claimed it was not on notice of specific illegal activity which infringed the rights of the companies and had no legal obligation to monitor traffic on its network.
Dealing with preliminary issues yesterday before the trial of the record companies' action against Eircom, Mr Justice Peter Kelly expressed the hope that the sharing of information about filtering systems may narrow the issues in the action and reduce the number of documents which would need to be discovered.
The action had "tentacles which could involve huge discovery", he remarked.
In those circumstances, Mr Justice Kelly said discovery of documents, as agreed and ordered yesterday, should await the outcome of the exchange of information between the experts in the hope that that would reduce the discovery required.
Earlier, the record companies had sought orders requiring Eircom to discover all documents relating to its knowledge of infringement of copyright in sound recordings.
Eircom had objected to that category as too broad and the judge said he would confine it to documents disclosing Eircom's knowledge of the unlawful downloading of music by subscribers to Eircom's own network. The sides agreed other discovery issues between themselves.
In the proceedings, the record companies claim that Eircom, as the largest broadband internet service provider in the State, must bear some liability for the alleged use of its networks for the illegal free downloading of music "on a grand scale" by computer users.
The action is the first here aimed at internet service providers, rather than individual illegal downloaders.
It reflects growing concern within the music industry about the scale and cost of illegal downloading. The most recent figures, for 2006, indicate that 20 billion music files were illegally downloaded worldwide in that year alone.
Eircom has filed a defence rejecting the claims and contending the record companies have established no cause of action against it.
The action is by EMI Records (Ireland) Ltd, Sony BMG Music Entertainment (Ireland) Ltd, Universal Music (Ireland) Ltd and Warner Music (Ireland) Ltd.
The firms want orders - under the Copyright and Related Rights Acts 2000 - restraining Eircom from infringing copyright in the sound recordings owned by, or exclusively licensed to them, by making available (through Eircom's internet service facilities) copies of those recordings to the public without the companies' consent.
Willie Kavanagh, managing director of EMI Ireland and chairman of the Irish Recorded Music Association (Irma), has said illegal downloading and other factors are causing "a dramatic and accelerating decline" in income in the Irish music industry, with total sound recording sales falling from €146 million in 2001 to €102 million last year.
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