EMI Records (Ireland) Ltd and Others v Eircom Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 16 April 2010
• Neutral Citation: [2009] IEHC 411,[2010] IEHC 108
• Court: High Court
• Docket Number: [2008 No.
• Date: 16 April 2010

[2009] IEHC 411

THE HIGH COURT

[1601P 2008]

EMI Records (Ireland) Ltd & Ors v Eircom Plc

[2009] IEHC 411

BETWEEN

EMI RECORDS (IRELAND) LIMITED, SONY BMG MUSIC ENTERTAINMENT (IRELAND) LIMITED, UNIVERSAL MUSIC (IRELAND) LIMITED, AND WARNER MUSIC (IRELAND) LIMITED

PLAINTIFFS

AND

EIRCOM PLC

DEFENDANT

COPYRIGHT & RELATED RIGHTS ACT 2000 S40(1)

COPYRIGHT & RELATED RIGHTS ACT 2000 S40(1)(G)

COPYRIGHT & RELATED RIGHTS (AMDT) ACT 2007

COPYRIGHT & RELATED RIGHTS ACT 2000 S40(4)

COPYRIGHT & RELATED RIGHTS ACT 2000 S40(3)

EEC DIR 2001/29 ART 8

EEC DIR 2001/29 ART 9

SUPREME COURT OF JUDICATURE ACT 1875

INJUNCTION

Interlocutory injunction

Copyright law - Infringement of copyright - Internet - Internet provider - Innocent transmitter of infringing material - Users of defendant service accessing copyright breaching website - Damages as alternative - Statutory interpretation - Whether statute provided for relief sought -Whether damages could be ordered as alternative - Whether applicant entitled to injunction against defendant - Copyright and Related Rights Act 2000 (No 28) s 40 - Copyright and Related Rights (Amendment) Act 2007 (No 39) - Relief granted (2008/1601P - Charleton J - 24/7/2009) [2009] IEHC 411

EMI Records Ltd v Eircom plc

Facts The plaintiffs applied for an interlocutory injunction requiring the defendants to block access by its internet subscribers to the website thePirateBay.org, which permits the stealing of copyright owned by the plaintiffs in their musical works. The plaintiffs also sought, inter alia, an injunction requiring the cancellation of the defendant's domain name and email address.

Held by Charleton J in granting the injunctive relief (on the basis of affidavit evidence) that an innocent party whose facilities are being used (publicly available channels over the internet) for the transmission of copyright materials thereby infringing copyrighted works can be made the subject of injunctive relief under the Directive 2001/29 EC, as implemented in s. 40(4) of the Copyright and Related Rights Act as amended. No decision made in relation to damages.

Reporter: C. O'C

1 JUDGMENT of Mr. Justice Charleton delivered on the24th day of July, 2009 ex tempore

2 In this ruling, I just want to make it clear that I have only heard one side, and that therefore any decision I am making in relation to the law is on the basis of one side putting forward an argument in the context of a settlement that was reached between the parties in the main proceedings, whereby it was agreed between the plaintiffs and the defendant that the defendant would not oppose this, the plaintiffs', application.

3 This is an application by the plaintiffs who are EMI Records, Sony, Universal, and Warner to require Eircom plc to block access to a site which is commonly called Pirate Bay, which is the subject of proceedings in its country of origin, and which is a site dedicated, on a weird ideological basis, to basically stealing the copyright owned by the plaintiffs in mainly musical works. That copyright, I am satisfied, has been assigned to the plaintiffs often by hardworking artists, some of whom may indeed be very wealthy, but some of whom may be trying to do their very best to make a living out of the work that they love, namely, making music, making films, or other forms of entertainment, and that work, let us be clear, enriches the human race. Having created original work, copyright arises as a legal right under statute in the author. Apart from legislation, a natural human expectation arises that there should be such a right as a matter of simple fairness. As St. Colmcille, one of the patron saints of Ireland, said, "le gach bó a buinín agus le gach leabhar a chóip" (to every cow its calf and to every book its copy). This work is now being taken by people using the internet, going on to the Pirate Bay site, getting the appropriate information and/or software for their computers, thus identifying swarms of other people currently online who will share the material and then accessing these swarms whereby, in small portions from multiple individuals within the online swarms, entire songs, musical works, or video works, are appropriated by them free of charge from multiple individuals who already have taken the copyright material.

4 Now, as I understand it, as a matter of law up to the Copyright and Related Rights Act 2000 there was only the possibility of basically making an injunction against parties who were infringing copyright by doing any of the acts set out in s. 40(1) of the Copyright and Related Rights Act 2000, of which para. (g) has been in turn amended by the Copyright and Related Rights Amendment Act 2007. The legal wrongs against copyright could be making available copies of a copyright work, performing it, broadcasting it, including a copy of a work in a programme, issuing copies of the work to the public, renting copies of the work, or lending copies of the work without the payment of remuneration to the owners of the copyright work. These actions under the Act of 2000, and the legislation which preceded it, can all be unlawful methods of infringing copyright through making available without authorisation of the owner or her or his assignee a copyright work to the public.

5 There is no doubt that EMI, Sony, Universal, and Warner have copyright by way of assignment from musicians and other artists in a vast bulk of copyright work, and there is no doubt, on the affidavits before me, that they as plaintiffs in this action are facing a situation of undermining their intellectual property rights (and those who have assigned such rights to them) by virtually unrestrained unauthorised copying over the internet, which I regard as being theft. I note the quote from the Envisional report, in evidence before me, which is attributed to Mr. Peter Sunde who is one of the controlling minds of Pirate Bay:

"This is how it works: Whatever you sink, we build back up. Whomever you sue, 10 new pirates are recruited. Wherever you go, we are already ahead of you. You are the past and the forgotten; we are the internet and the future."

6 Well, that kind of statement I have just quoted is clear evidence of both an intention to flout the law and of an inflated personality which believes that Mr. Peter Sunde is on some kind of a white horse and carrying a lance on behalf of good. I am convinced, on the affidavits before me, that he is carrying a lance on behalf of self-interest. In part, that is proved in the affidavits before me by the amount of advertising which Pirate Bay carries, which is making him and those associated with him a very substantial amount of money from those accessing their sites. Those accessing the sites of Pirate Bay are shown on the affidavits before me to have advertising popping up in relation to what they do, and those advertisers are paying money to Pirate Bay.

7 It is clear to me at the moment, though it hasn't been argued in this case to the contrary, going back to the copyright point, that s. 40(4) of the Act of 2000 gives an entitlement in the right circumstances to the plaintiffs to seek an order against a party who is essentially innocent in relation to copyright infringement, in distinction to those actively stealing copyright material through the act of copying without authorisation and facilitating it, Pirate Bay and the illegal downloaders, and I put Eircom into that category of innocent transmitter of infringing material. For the sake of clarity, I quote the section:

8 2 " 40.-(1) References in this Part to the making available to the public of a work shall be construed as including all or any of the following, namely:

9 a ( a) making available to the public of copies of the work, by wire or wireless means, in such a way that members of the public may access the work from a place and at a time chosen by them (including the making available of copies of works through the Internet);

10 b ( a) making available to the public of copies of the work, by wire or wireless means, in such a way that members of the public may access the work from a place and at a time chosen by them (including the making available of copies of works through the Internet);

11 c ( c) broadcasting a copy of the work;

12 d ( d) including a copy of the work in a cable programme service;

13 e ( e) issuing copies of the work to the public;

14 f ( f) renting copies of the work;

15 (g) lending copies of the work without the payment of remuneration to the owner of the copyright in the work,

16 and references to "lawfully making available to the public" shall mean the undertaking of any of the acts referred to in paragraphs (a) to (g) by or with the licence of the copyright owner.

17 (2) References in this Part to the making available to the public of copies of a work shall include the making available to the public of the original of the work.

18 (3) Subject to subsection (4), the provision of facilities for enabling the making available to the public of copies of a work shall not of itself constitute an act of making available to the public of copies of the work.

19 (4) Without prejudice to subsection (3), 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.

20 (5) Without prejudice to subsection (4), the Minister may prescribe the form of the notice to be given under that subsection and the form shall specify-

21 (a) the name and address of the person claiming to be the owner of the copyright in the work concerned,

22 (b) the grounds that the person...