Andyaz | Personal blog of Aubrey Robinson

The following is a series of questions concerning the recent settlement between Eircom and the major record labels in Ireland. I’ve posted an overview here, and you can visit Blackout Ireland for more information on the campaign.

I must stress that I’m not a legal expert. The following is an amalgamation and interpretation of what is already online.

The Settlement

What is the nature of the settlement?

We know two things:

Firstly, Eircom is adopting a “three strikes” approach, and will disconnect customers that it suspects are downloading music illegally. The evidence of illegal downloads will be provided by IRMA, and Eircom will take action without the need for a court hearing. Eircom will not, however, share any user data with IRMA.

Secondly, as stated in a letter from IRMA to the other ISPs, Eircom will not oppose any application seeking the blocking of file-sharing websites from their network.

Will the details be published?

To my knowledge, the details of the settlement have not been published. As Daithí points out, this is a closed door settlement between companies and the details need not be made public.

Illegal downloading

What surveillance or tracking technology will IRMA employ to catch suspected illegal music downloaders and how effective is it?

It seems IRMA will be using DtecNet to monitor peer-to-peer networks. Any ip addresses suspected of being involved in illegal downloads will be passed on to IRMA, who in turn will “present the evidence” to Eircom, without the need for a court hearing and in the absence of the accused.

An Eircom spokesman had this to say:   

“Under the compromise, they [IRMA] will come to us, using the same standard of proof they would have given the court. We need to be convinced that our subscriber is file-sharing illegally.”

The relative effectiveness of IRMA’s third party surveillance is unknown, though the music industry has got it wrong in the past. Under the new agreement it will be up to the ISP, and not a court, to decide.

What proposed steps will Eircom take, under the new deal?

The only details we have are the following from Adrian Wecker:

If the music labels come to it with IP addresses that they have identified as illegal file-sharers, Eircom will, in its own words:

“1) inform its broadband subscribers that the subscribers IP address has been detected infringing copyright and

2) warn the subscriber that unless the infringement ceases the subscriber will be disconnected and

3) in default of compliance by the subscriber with the warning it will disconnect the subscriber”

Who is responsible for an ip address?

This is an important question. Are the parents of a child accused of illegal downloading ultimately responsible? What about multiple computers on a shared network, or people using their neighbours open connection (piggybacking)?

It is quite possible for those with some technical knowledge to frame others by hijacking their ip address. One famous case in the University of Washington saw a computer printer being flagged as an illegal downloader.

What are the proposed sanctions against users? How long will users be cut off/blacklisted?

This is yet unknown. Under Eircom’s existing Broadband Terms and Conditions, suspected misuse leads to termination. In France, the “three strike” rule will cut users off for 12 months.

It also remains unclear how users will be prevented from merely switching ISPs (a chief reason that IRMA need to get the other ISPs on board). If all the ISPs do agree to play ball with IRMA, will details of banned individuals be shared between them?

Is disconnection fair/proportionate?

Daithí , a cyberlaw expert, makes a strong argument for why the punishment may not fit the crime:

“The present-day Internet includes communication (email), socialising (IM, social networking etc), media consumption (websites, blog, streaming, etc), media creation (ditto), access to Government services, online commerce, etc. Now imagine that the sanction for a, let’s face it, relatively minor crime (copyright infringement, while economically significant, is hardly manslaughter), includes no use of the postal services, highly limited access to shops, no permission to read a newspaper, reduced ability to use public services or get public information, and more. That’s no minor sanction.”

Germany’s Secretary of Justice Brigitte Zypries had this to say:

“I don’t think that (Three Strikes) is a fitting model for Germany or even Europe. Preventing someone from accessing the Internet seems like a completely unreasonable punishment to me. It would be highly problematic due to both constitutional and political aspects.”

What are the rights and mechanisms of appeal?

No details have been released on how users can appeal alleged violations, either upon receiving a warning from Eircom or when they are eventually cut off.

Will the three strikes hold up in court?

Blacklisted users may choose to appeal their case to court, where the whole “three strikes” policy could be tested. Oisin makes the following comment:

“If, and when, Eircom seeks to terminate someone’s service, we may finally get some litigation as to whether or not these often unfair, impenetrable user agreements are actually enforceable or not. We’ll finally get to see if the Unfair Terms Directive, along with all the old common law and equity cases on enforcing one-sided terms that weren’t negotiated or drawn to the parties attention have any bearing on user agreements.”

TJ McIntyre suggests that, if challenged, the three strikes rule may receive “much less judicial deference than if it had been adopted as part of an industry wide deal with explicit government support”.

File-sharing websites

How will IRMA determine which file-sharing sites to block?

This is an extremely important question, as we don’t yet know what the criteria will be for seeking to ban sites.  Blackout Ireland question where IRMA will draw the line:

“Will they seek to ban websites that merely link to copyrightable content, without actually hosting it? Proxy websites that could serve to circumvent the ban? Sites like riaaradar.com that promote boycotting members of record label associations? Blogs that criticize IRMA’s actions? This very website?”

Interestingly, Eircom have announced they will not block the Pirate Bay until they get court order, though, as Arstechnia reminds us, this is not required under their agreement with IRMA .

What process will they follow in blocking sites?

It seems that IRMA will have to present a basic standard of proof in court when seeking to ban a site. This is at least some good news, as IRMA faces the possibility of being challenged. However, as Adrian Weckler notes: 

“Our judicial system is an adversarial one: it depends on someone opposing the action for a judge to come to a conclusion. If the opposing party enters no opposition, a basic standard of proof will be enough to satisfy the court.”

This requirement for proof may, at the very least, prevent IRMA from taking a wider censorship role, as is feared.

Moving forward

What case do the record companies have against ISPs?

Record companies have the right to protect their copyright, but in order for them to have a case, they must present clear evidence of copyright infringement in court.

Under current law, ISPs are protected as “mere conduits” of data and cannot themselves be prosecuted unless they fail to take action against an offending user, once sufficient evidence of the offence has been presented in court.

IRMA was able to pressure Eircom with the threat of a drawn-out and expensive court case, and could hold to question the seriousness of Eircom’s stance on piracy given their previous nonchalant statements.

Presumably, given the tone of the letter sent to Ireland’s other ISPs, the record labels will attempt a similar route and file a lawsuit for losses in earnings. The question is whether the ISPs will choose, and can afford, to see the case through.

What is the best outcome, moving forward?

• ISPs need to remain conduits and should not monitor or filter.
• Copyright holders should have a right to prosecute serial offenders in the courts.
• The music industry should look at alternative means of securing income from downloads.
• The internet needs to be protected with strong neutrality laws.

What can we do?

The ISPs are deciding now on what course of action to take and need to hear our voice. Visit Blackout Ireland’s website for steps you can take.

Does the Blackout Ireland movement support illegal downloading of copyright music?

No. The Blackout Ireland campaign does not condone piracy. We believe that music companies and individuals have every right to protect their copyright ownership through legal means. We are, however, against the notion that copyright holders can police the internet and seek to blacklist individuals or block websites without due legal process.

I don’t download illegal music. Why should I have a problem with this?

This issue concerns the threat of internet censorship by private companies and therefore affects every internet user. As Daithí muses, “why bother with expensive courts and complicated statutes and messy democracy when you can just leave it to two private companies to sort out right from wrong?”

If IRMA get their way, what is to stop other companies from seeking similar powers in deciding what can and cannot be online.

Damien Mulley suggests where this slippery slope could take us:

“So first they’ll start with the Pirate Bay. Then comes Mininova, IsoHunt, then comes YouTube (they have dodgy stuff, right?), how long before we have Boards.ie because someone quoted a newspaper article or a section of a book? And don’t think they’ll stop there too, any site that links to The Pirate Bay and the others on the hate list will probably be added to the list too. Are you now, or have you ever been a member of the Communist Party?”