An important High Court decision today allowing Eircom proceed with cutting off internet access to illegal music downloaders, mainly peer-to-peer music sharing groups, has major implications for all other internet service providers.
Legal sources predict the judgment by Mr Justice Peter Charleton may compel other internet service providers to cut off services to illegal downloaders who fail to heed warnings to desist what the judge described as “theft”.
The judgment arose from a settlement last year of proceedings by four major record companies - EMI, Sony, Universal and Warner -against Eircom over the use by others of its services for illegal downloading. Other cases are pending.
Under the settlement, Eircom agreed to implement measures aimed at stopping illegal downloading, including disclosing to the companies the uploaders and downloaders’ identities through their IP addresses, and ultimately cutting them off if illegal downloading persisted.
Mr Justice Charleton today ruled concerns raised by the Data Protection Commissioner about those measures, including about the rights of access to the internet, did not prevent the measures being implemented. The measures were lawful and compatible with the data protection legislation, he found.
There was nothing in the criminal or civil law which legalises that which is otherwise illegal simply because the transaction takes place over the internet, he said.
The internet “is only a means of communication, it has not rewritten the legal rules of each nation through which it passes.”
Since the early days of the internet, copyright material was placed on the world wide web by those with no entitlement to share it and downloaded by others who would normally have expected to pay for it, he said.
Younger people were now so much in the habit of downloading copyright material they appeared to believe they were entitled to have for free what is not theirs, he added.
While the removal of internet access over illegal downloading was a serious sanction, there was “no freedom to break the law”.
There was “a fundamental right” to copyright in Irish law existing since the time of Saint Colmcille who was often quoted for his aphorism: “to each cow its calf and to every book its copy”, he said.
“The right to be identified with and to reasonably exploit one’s own original creative endeavour I regard as a human right.”
The courts were required to supply, even in the absence of legislative intervention, appropriate remedies for the undermining of rights within the scheme of fundamental law the Constitution represents and were obliged to protect the rights of copyright owners from unjust attack.
The owners of copyright have the exclusive right to undertake or authorise others to make that work available to the public but that legal entitlement was being “flagrantly violated” by peer to peer illegal downloading.
In the circumstances, it was completely within the legitimate interests of Eircom to act as a body which upholds the law.
There was nothing disproportionate about cutting off internet access because of three infringements of copyright as proposed by Eircom and the music companies. There were also adequate personal safeguards in the protocol agreed by the parties.
The companies and Eircom propose a “three strikes and you’re out” protocol for dealing with illegal downloaders under which Eircom will first give notice to the downloaders their activity is illegal and should be stopped. If it continues, they will be warned they risk having their broadband slowed down. If infringement continued, Eircom would send a third warning their internet access would be cut off altogether and they would be cut off.
The Data Protection Commissioner had expressed the view the Data Protection Act was an obstacle to implementation of the measures as these involved the release of “sensitive personal” information. The Commissioner’s concerns related not to the actual termination of the broadband service but whether the process leading up to termination amounted to an interference with subscribers’ personal rights.
The sides asked the High Court to rule on those issues. The Commissioner did not participate in the case due to concerns over legal costs.
Mr Justice Charleton ruled that IP addresses of suspected illegal downloaders in the possession of the record companies who intend to give them to Eircom are not “personal data” or sensitive personal data such as required the companies to comply with data protection issues.
None of the companies have any interest in personally identifying any living persons infringing their copyright and the entire purpose of the litigation was to uphold the law on copyright, he said.
He ruled the processing by Eircom of data of suspected illegal downloaders, as proposed under the settlement, did not amount to “unwarranted” processing on grounds it prejudiced the fundamental rights and freedoms or legitimate interests of the subscriber.
Neither the companies nor Eircom, as owners or assignees of valuable copyright, were in any way interested in prosecuting downloaders for criminal offences under copyright laws, he said. Noting in the protocol agreed would ever involve the disposal of criminal proceedings or any court sentence.
In all the circumstances, the graduated response process which could result in a subscriber being cut off was lawful and the sides could lawfully proceed to implement their settlement.
