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?”

It means that IRMA can now remove internet users who it deems have infringed copyright laws without any legal process or appeals mechanism.

Regardless of your stance on illegal downloading, the immediate enforcement of this new policy has serious implications for internet freedoms. It opens the door for other private companies to obtain similar powers in dictating, without due legal process, who or what is permissible online.

Join Blackout Ireland and voice your opposition to this move. Other ISPs have been issued legal letters by IRMA and need to hear your voice now.

Background

Frustrated by the costly and time-consuming nature of convicting individual offenders in the courts (i.e. following due legal process), the record labels decided to put the squeeze on internet access providers.

Last year, EMI, Sony BMG, Universal Music and Warner Music brought legal proceedings against Eircom, under the Copyright and Related Act (2000). Their case was that Eircom, as an Internet Service Provider, were enabling downloads from file-sharing (torrent) sites and were therefore obliged to incorporate filtering technology that would block these sites.

Eircom refused, stating that it was merely a carrier and, as stated in Article 15 of the EU’s E-Commerce Directive (2000) was not obliged to monitor or filter user’s traffic.

The four record labels therefore sought damages of between €4-5 million (or 40% of their annual losses to piracy) but the case was cut short after eight days due to a settlement, which RTE reported as follows:

“Under the settlement, the record companies will supply Eircom with the internet provider addresses of all persons who they detect illegally uploading or downloading copywrite (sic) works on a peer to peer basis. Eircom has agreed that it would disconnect any broadband subscriber who failed to comply, following a warning they were acting illegally.”

The new agreed terms work as follows: IRMA sends Eircom any customer ip addresses that it suspects have been used to download illegal music. Eircom then sends a warning letter to those customers, followed by a letter threatening disconnection. Should those users continue to download illegal music (according to IRMA), they will be disconnected.

Most importantly, according to torrentfreak:

“Under the terms of an agreement between Eircom and Irma, Eircom will not oppose any court application, meaning that orders requesting the blockage of a particular website will be automatically granted…By agreeing to censor the Internet at the behest of not the police, but a private and commercially driven organization, it has effectively dumped its own common carrier protection.”

The details of the settlement remain unpublished and, being a settlement, there are no grounds for appeal.

The result is ideal for IRMA: No messy courts or unyielding democracy. They decide.

Heavy pressure is now being put on other ISPs to follow suit.

International context

The music industry has been pursuing this legal route internationally for some time.

In December 2008, the Recording Industry Association of America (RIAA) decided to abandon its widespread lawsuit campaign against individuals in favour of a similar “graduated response” partnership with ISPs, though this is still voluntary.

The UK government decided against forcing the ISPs to disconnect users, citing the “complex legal issues wrapped up in enforced disconnection”

To the ire of the music industry officials, David Lammy, the Intellectual Property Minister, had this to say:

“We can’t have a system where we’re talking about arresting teenagers in their bedrooms. People can rent a room in an hotel and leave with a bar of soap - there’s a big difference between leaving with a bar of soap and leaving with the television.”

New Zealand recently approved section 92 of their Copyright Amendment Act which assumes “guilt upon accusation”, calling for ” internet disconnection based on accusations of copyright infringement without a trial and without any evidence held up to court scrutiny.”

The amended act is a crucial blow to internet freedom, with headings such as “Internet service provider liability if user infringes copyright” and “Internet service provider liability for storing infringing material”. Due to ongoing protest, the law has currently been postponed.

The Pirate Bay, Torrent site and bête noire of music industry, is currently on trial in Sweden for facilitating illegal downloads. Charges relating to the “aiding in the copying of copyright works” have been dropped and they are now being prosecuted for “making available” those works.

And now?

Yesterday, Blacknight Internet Solutions published the contents of a letter they had received from lawyers acting for IRMA, threatening action if Blacknight (who are not themselves an ISP) did not agree work with them in a similar fashion.

The bullying but essentially vacuous letter states IRMA’s position fairly categorically:

“In the event of a positive response to this letter, it is proposed to make practical arrangements with Blacknight of a like nature to those made with Eircom. In the event of a negative response to this letter, section 40(4) of the Act will be invoked against Blacknight and proceedings instituted”.

Section 40(4) of the Copyright and Related Act reads as follows:

“where a person who provides facilities referred to in that subsection is notified by the owner of the copyright in the work concerned that those facilities are being used to infringe the copyright in that work and that person fails to remove that infringing material as soon as practicable thereafter that person shall also be liable for the infringement.”

Fortunately, IRMA has no direct case against the ISPs being targeted. They are entitled to take ISPs to court to seek an injunction against individual offenders using their service, but have no actual case against them without any specificevidence of the ISP’s involvement in providing access to copyrighted material. Furthermore, the “Mere conduit” defence in article 12 of the E-Commerce Directive states that:

” Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:

(a) does not initiate the transmission;

(b) does not select the receiver of the transmission; and

(c) does not select or modify the information contained in the transmission.”

Therefore, ISPs cannot themselves, under European law, be convicted for transmitting copyright information.

Well, that’s where the law is now, but laws can change.

And as Blackout Ireland have pointed out, ISPs are deciding right now on what direction to take.