UPC file-sharing court action begins

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Five major record companies have taken legal action against another internet service provider here in a further bid to stop illegal downloading of music which they estimate is costing them and performers almost €20 million a year.

The latest case is against cable operator UPC Communications Ireland Ltd, the third biggest broadband provider here with some 15 per cent of the market and 148,000 subscribers.

Opening the case at the Commercial Court yesterday, which is expected to last two weeks, Michael McDowell SC, for the companies, said they do not accept UPC’s claims it is a “mere conduit” which can do nothing to prevent illegal downloading.

The companies contend UPC is itself liable for acts of infringement by persons using its services, including persons accessing the Pirate Bay and other websites which allegedly facilitate illegal downloading.

They want orders requiring UPC to block or disable access to such sites by infringing subscribers and allege UPC’s failure to do so constitute infringement of the copyright of the companies and breaches Irish and European law.

Mr McDowell said UPC had written to the companies asking them to discontinue the legal action pending the issue of illegal downloading being addressed by legislation but there was no indication if or when legislation would be enacted or even that there was a consensus in the Dáil about any form of legislation.

UPC was in fact saying they don’t want different responses from different service providers but a uniform response across the industry enforced by legislation and all of that seemed to be based on a fear of competition, counsel said. This was not a
basis to discontinue the case.

Similar proceedings were brought previously by the companies against Eircom which settled on terms including the companies providing Eircom with the internet protocol (IP) addresses of all persons detected as illegally file-sharing copyright works.

Eircom has also agreed to operate a “three strikes and you’re out” policy against subscribers who ignored warnings to cease infringements.

Under that system, subscribers get three warnings they have been detected sharing copyrighted music owned by Irma members. If they are found doing it a fourth time, their broadband connection will be cut off for a year.

The music companies are also in talks with Vodafone and Eircom subsidiary Meteor Ireland aimed at securing their agreement to operate a similar system. Vodafone is the second biggest broadband provider here with some 21 per cent of the market while Eircom is the largest provider with about 42 per cent.

The Eircom case was the first here aimed at internet service providers, rather than individual illegal downloaders.

In the latest proceedings, being heard by Mr Justice Peter Charleton, EMI Records (Ireland) Ltd, Sony Music Entertainment Ireland Ltd, Universal Music Ireland Ltd, Warner Music Ireland Ltd and WEA International Incoporated want UPC to give similar undertakings to prevent “peer-to-peer (P2P) infringers” illegally downloading music.

In an affidavit, Willie Kavanagh, chairman of the Irish Recorded Music Association (IRMA), said it had asked UPC and another ISP, BT Communications, in February 2009 to agree to implement the measures in the Eircom settlement but both declined. BT had since been taken over by Vodafone.

UPC said the companies’ proposals were unacceptable because they did not take into account the rights and interests of subscribers or of UPC itself. It also denies that copyright law applies in the manner alleged by the companies.

The record companies had experts carry out a “48-hour scan” of the two service providers’ networks which found some 37,500 copyright infringements on UPC per month, Mr Kavanagh said. UPC had refused to take steps, including filtering technology, to stop the illegal downloading.

The record companies have also initiated proceedings against O2 and 3 Ireland aimed at securing their agreement to implement a similar system to that agreed with Eircom.

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