Judge says ‘scandal’ of illegal downloads devastating business

IrishTimes.com 1012/10

COURT HEARING: ILLEGAL MUSIC downloading was described by a judge as a “scandal” yesterday as five major record companies failed in their High Court action aimed at compelling internet service provider UPC to take action to prevent the practice.

Mr Justice Peter Charleton, while strongly criticising UPC Communications Ireland Ltd over its failure to act against music pirates, said the legislative response to the problem of internet piracy, the Copyright and Related Rights Acts 2000, made no proper provision for the blocking, diverting or interrupting of internet communications intent on breaching copyright.

While injunctions directing UPC to act against piracy were merited on the facts of the case, the lack of any provision in the 2000 Act prevented the granting of the orders sought, he said.

Ireland was not yet fully compliant with its obligations under European law in relation to such copyright breaches, he added.

The companies, EMI Records (Ireland) Ltd, Sony Music Entertainment Ireland Ltd, Universal Music Ireland Ltd, Warner Music Ireland Ltd and WEA International Inc had wanted UPC to give undertakings to prevent “peer-to-peer (P2P) infringers” illegally downloading music. The companies said they had given UPC details of those involved in illegal downloading but UPC had done nothing about it. Similar undertakings were given in the companies’ action against another internet provider, Eircom.

The companies had claimed UPC, the third biggest broadband provider here with 15 per cent of the market and 148,000 subscribers, was liable for acts of infringement by its service users, including persons accessing the websites in question.

They alleged UPC’s failure to take action against those involved in illegal downloading constituted infringement of the copyright of the companies and breached Irish and European law.

UPC denied that copyright law applied in the manner alleged by the companies and claimed it had no liability because it was merely a conduit for illegal downloading. It claimed the companies’ proposals were unacceptable because they did not take into account the rights and interests of subscribers or of UPC itself.

The judge said internet piracy was “devastating” the recording companies’ business in Ireland. Not only did it “undermine their business” but it was also “ruining the ability of creative people in Ireland to earn a living”. The retail sector was also affected by this “wholesale theft”. Solutions are available to the deal with the problem of internet piracy but the 2000 Act lacked the proper provision for blocking, diverting and interrupting of illegal downloads from the internet, he found.

The only relevant power the courts have is to require an internet hosting service to remove copyright material, he said. He said he was not satisfied UPC’s attitude towards illegal downloading “was either reasonable or fair” and it appeared UPC intended “to do nothing” about copyright piracy.

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