EMI Records (Ireland) Ltd and Others v UPC Communications Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 11 October 2010
• Neutral Citation: [2010] IEHC 377
• Court: High Court
• Date: 11 October 2010

EMI Records (Ireland) Ltd & Ors v UPC Communications Ireland Ltd

COMMERCIAL

BETWEEN

EMI RECORDS (IRELAND) LIMITED, SONY MUSIC ENTERTAINMENT IRELAND LIMITED, UNIVERSAL MUSIC IRELAND LIMITED, WARNER MUSIC IRELAND LIMITED AND WEA INTERNATIONAL INCORPORATED

PLAINTIFFS

AND

UPC COMMUNICATIONS IRELAND LIMITED

DEFENDANT

[2010] IEHC 377

[No. 5472 P/2009]

THE HIGH COURT

INTELLECTUAL PROPERTY

Injunctions

Copyright - Music - Internet piracy - Illegal downloading - Recording companies - Internet service provider - Peer-to-peer sharing - Blocking injunction - Right to privacy - Data protection - Proportionality - Whether injunction just or convenient - Whether legal power to grant injunction - Whether power to block or disable access to internet sites available under Irish law - Whether Ireland in compliance with European law obligations - Whether defendant should make identities of infringers available - Whether defendant mere conduit - Norwich Pharmacal v Custom and Excise [1974] AC 133; EMI v Eircom Ltd [2005] 4 IR 148; BMG Canada Inc v Doe [2005] FCA 193; X v Flynn (Unrep, Costello J, 19/5/1994); In re Employment Equality Bill 1996 [1997] 2 IR 321; McGee v Attorney General [1974] IR 284; Dudgeon v United Kingdom (1981) 4 EHRR 149; Douglas v Hello! [2001] 1 QB 967; EMI Records (Ireland) Ltd v Eircom Ltd [2010] IEHC 108 (Unrep, Charleton J, 16/4/2010); PPI Ltd v Cody [1998] 4 IR 504; Prince Albert v Strange (1849) 2 De & Sm 293; Marleasing SA v La Commercial Internacional de Alimentacion SA [1990] 4 ECR I-4135 (C-106/89); Wilhelm Roith v Deutsches Rotes Kreuz [2004] ECR I-8835 (C-397/01); Pupino [2005] I-5285 (C-105/03); Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd 545 (US) 913 and EMI (Ireland) Ltd v Eircom plc [2009] IEHC 411 (Unrep, Charleton J, 24/7/2009) considered - Copyright and Related Rights Act 2000 (No 28), ss 17, 27, 37, 40 and 43 - Data Proetection Act 1988 (No 25) - Interpretation Act 2005 (No 23), s 5 - Communications Regulation Act 2002 (No 20) - Communications (Amendment) Act 2007 (No 22), s 10 - Digital Economy Act 2010 (UK) - Communication Acts 2003 (UK) - European Communities (Copyright and Related Rights) Regulations 2004 (SI 16/2004) - European Communities (Directive 2000/31 EC) Regulations 2003 (SI 68/2003) - Council Directive 95/46/EC - Council Directive 2001/29/EC - Council Directive 2002/21/EC - Council Directive 2000/31/EC, arts 12, 13, 14, 15 - Framework Directive 2009/140/EC - European Convention on Human Rights - Constitution of Ireland 1937, Articles 40.3.1 , 40.3.2 and 43.1 - Relief refused (2009/5472P - Charleton J - 11/10/2010) [2010] IEHC 377

EMI Records (Ireland) Ltd v UPC Communications Ireland Ltd

COPYRIGHT & RELATED RIGHTS ACT 2000 S37

COPYRIGHT & RELATED RIGHTS ACT 2000 S40(4)

NORWICH PHARMACAL v CUSTOM & EXCISE 1974 AC 133

KENNEDY v IRELAND 1987 IR 587

BMG CANADA INC v DOE 2005 FCA

EMI v EIRCOM LTD 2005 4 IR 148

X v STAR UNREP COSTELLO UNREP COSTELLO 19.5.1994 1994/13/4325

ARTICLE 26 & EMPLOYMENT EQUALITY BILL 1996, IN RE 1997 2 IR 321

MCGEE v AG 1974 IR 284

CONSTITUTION ART 40.3.1

DUDGON v UK 1981 4 EHRR 149

DOUGLAS v HELLO 2001 1 QB 967

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EEC DIR 95/46

DATA PROTECTION ACT 1988

EMI RECORDS IRELAND LTD v EIRCOM LTD UNREP CHARLETON 16.4.2010 2010 IEHC 108

COPYRIGHT & RELATED RIGHTS ACT 2000 S40

COPYRIGHT & RELATED RIGHTS ACT 2000 S40(3)

PHONOGRAPHIC PERFORMANCE LTD v CODY 1998 4 IR 504

PRINCE ALBERT v STRANGE 1849 2 DEG & SM 293

COPYRIGHT & RELATED RIGHTS ACT 2000 S17

COPYRIGHT & RELATED RIGHTS ACT 2000 CHAP 4

COPYRIGHT & RELATED RIGHTS ACT 2000 S37(1)

COPYRIGHT & RELATED RIGHTS ACT 2000 S43

COPYRIGHT & RELATED RIGHTS ACT 2000 S42

COPYRIGHT & RELATED RIGHTS ACT 2000 S41

COPYRIGHT & RELATED RIGHTS ACT 2000 CHAP 8

COPYRIGHT & RELATED RIGHTS ACT 2000 CHAP 9

COPYRIGHT & RELATED RIGHTS ACT 2000 S27

COPYRIGHT & RELATED RIGHTS ACT 2000 S40(1)

INTERPRETATION ACT 2005 S5

DODD STATUTORY INTERPRETATION IN IRELAND TOTTEL 2008

COPYRIGHTS & RELATED RIGHTS ACT 2000 S40(5)

MARLEASING SA v LA COMERCIAL INTERNACIONAL DE ALIMENTACION SA 1990 ECR I-4135 1992 1 CMLR 305

WILHELM RAITH v DEUTSCHES ROTES KREUZ 2004 ECR I -8835 C- 397/O1

CRIMINAL PROCEEDINGS AGAINST PUPINO 2005 ECR I-5285 2006 QB 83 2005 3 WLR 1102 2006 AER (EC) 142

EEC DIR 2001/29 ART 22

EEC DIR 2002/21

EUROPEAN COMMUNITIES (DIR 2000/31/EC) REGS 2003 SI 68/2003

EUROPEAN COMMUNITIES COPYRIGHT & RELATED RIGHTS REGS 2004 SI 16/2004

EEC DIR 2000/31 ART 12

EEC DIR 2000/31 ART 13

EEC DIR 2000/31 ART 14

EEC DIR 2000/31 RECITAL 47

EEC DIR 2000/31 ART 15

EEC DIR 2000/31 RECITAL 41

EEC DIR 2000/31 RECITAL 42

EEC DIR 2000/31 RECITAL 43

EEC DIR 2000/31 RECITAL 44

EEC DIR 2000/31 RECITAL 45

EEC DIR 2000/31 ART 2

EEC DIR 2000/31 ART 5

EEC DIR 2000/31 RECITAL 16

EEC DIR 2000/31 RECITAL 27

EEC DIR 2000/31 RECITAL 59

EEC DIR 2000/31 ART 5.1

EEC DIR 2000/31 ART 3

EEC DIR 2000/31 ART 8

EEC DIR 2000/31 RECITAL 59

EEC DIR 2000/31 REG 1

EEC DIR 2009/1122 ART 8.4

COMMUNICATIONS REGULATION ACT 2002

COMMUNICATIONS REG (AMDT) ACT 2007 S10(1)

CENTRAL BANK & FINANCIAL SERVICES AUTHORITY OF IRELAND ACT 2004

CENTRAL BANK ACT 1942 S57BY

CENTRAL BANK & FINANCIAL SERVICES AUTHORITY OF IRELAND ACT 2004 S16

CENTRAL BANK ACT 1942 S57BY(1)

CENTRAL BANK ACT 1942 S57CA

CENTRAL BANK ACT 1942 S57(CA)(4)(A)

CENTRAL BANK ACT 1942 S57CJ

CENTRAL BANK ACT 1942 S124(G)

DIGITAL ECONOMY ACT 2010 S17 (UK)

DIGITAL MILLENIUM COPYRIGHT ACT 2000 S512(K)

DIGITAL MILLENIUM COPYRIGHT ACT 2000 S512(H)

METRO-GOLDWYN-MAYER STUDIOS INC ET AL v GROKSTER LTD 545 US 913

EMI RECORDS LTD & ORS v EIRCOM UNREP CHARLTON 24.7.2009 2009/20/4787 2009 IEHC 411

1 1. The plaintiffs, who I will call the recording companies, record and release music and video for sale. They seek injunctions against the defendant, an internet service provider, to prevent the theft of their copyright by third parties illegally downloading it over the internet. The form of injunction sought is left to the discretion of the court. Hence, I will analyse various technical solutions.

2 2. Those enthused by music and video may legally buy it in a disc format or download it on the internet for a fee. Prices vary, but music in CD format or film captured on DVD can typically cost between €10 and €20 in a shop. A CD will contain up to 80 minutes of music, perhaps 15 tracks, and a DVD can store a 180 minute film. This case is about music. Both music and films are widely available for purchase to one's home computer over the internet. Because the material is in digital format, in the form of downloadable files, the quality is the same as that on a disc. To download a music track from the internet typically costs under €1 per music track but films are more expensive. All of these digital files are of original creative work. They are, as a matter of law, protected by copyright. Increasingly, as the evidence in this case has demonstrated, such protection has been undermined to the status of an empty formula. The recording companies complain that their entire business has been decimated by piracy on the internet. They claim that a whole generation is growing up, who instead of purchasing recordings in hard format or by legal download, simply access the sites on the internet that enable them to download for free the millions of music tracks that are available illegally worldwide.

3 3. The defendant, who I will call UPC, sells internet service to about 15% of the Irish market. Its turnover is in the order of €250M per year and the underlying nature of the business is profitable. It employs 800 staff. In its interface with customers it deals with about 35,000 inbound calls per month, of which it answers about 90%. Later in this judgment, I will refer in detail to the fact that a substantial portion of its 150,000 customers, or the children in their teenage and twenties years of these customers, are using the internet service provided by UPC to steal copyright material which is the property of the recording companies. UPC, as the internet service provider, transmits, in digital form, this copyright protected music through its system and into, and out of, the home personal computers that are used for copyright piracy. UPC claims it has no liability in respect of this activity because it is merely a conduit. The recording companies disagree.

4 4. The recording companies say they are entitled to an injunctive order of the Court requiring UPC to stop this infringing activity from taking place over its network. The recording companies say that UPC is in the best position to do this. The record companies have communicated with UPC not only as to the nature of the problem, but by actually giving it details whereby the infringers of copyright were detected, by the unique IP numbers assigned to their computers, illegally downloading their songs; but that they have been ignored. The recording companies claim that UPC is turning its face aside from this problem while maintaining a front of righteousness by having in place a customer use policy that condemns internet piracy but which it ignores deliberately in order increase its profit. The customer use policy of UPC makes it very clear that the internet service of UPC cannot be used to steal copyright material. This is a matter of contract, and for a breach of this obligation by the customer, UPC can terminate the contract. It never does. It is not so inclined.

5 5. At the end of their amended statement of claim, the recording companies are specific only to this extent as to what they seek:-

2 "1. An injunction, pursuant to s. 37 and s. 40(4) of the Copyright and Related Rights Act, 2000, restraining the defendant internet service provider from infringing the copyright in sound recordings owned by, or exclusively...