Irish Court Grants Injunction Against ISP To Adopt Graduated Response Scheme

Author:Mr Richard Woulfe and Gerard Kelly
Profession:Mason Hayes & Curran

On 27 March 2015, Mr Justice Cregan sitting in the Irish Commercial Court held that an injunction can be granted against an Internet service provider ("ISP"), UPC Communications Limited, for it to implement and adopt a graduated response scheme to assist in the enforcement by music companies of copyright infringement against the ISP's subscribers.

The precise scope of the scheme is not yet known as the parties have been requested to make further submissions to the Judge on the form of the order and the exclusions and safeguards in that order. However, the order will involve at least two letters being sent to subscribers that are identified by the music rightsholders as infringing copyright on the ISP's network.

This is the first occasion that a court ordered or "common law" graduated response system has been imposed anywhere in the world.

The business impact of the decision is as follows:

An ISP may be ordered to engage with its subscribers by issuing letters following complaints from rightsholders on a systematic basis; An ISP cannot be ordered to sanction its customers accused by rightsholders of copyright infringement without the guarantee of a "prior, fair and impartial procedure", which must operate outside the ISP organisation; and The Court held that an element of cost sharing is appropriate for the ISP implementing any injunction sought by music rightsholders. The action commenced in January 2014, when the main sound recording companies, Sony, Universal and Warner issued injunctive proceedings against UPC seeking an order that UPC implement a graduated response scheme ("GRS") in response to alleged copyright infringement as a result of illegal filesharing on the UPC network. This proposed GRS required that UPC write to its customers accused of file-sharing, and ultimately, after a designated number of repeat warnings, disconnect their subscription.

These proceeding have a deep rooted history. In 2010, the music companies unsuccessfully brought similar High Court proceedings against UPC seeking that it implement identical measures voluntarily agreed to by eircom, as part of a settlement agreement between the music industry and eircom. UPC successfully defended the proceedings where it was held by Mr Justice Charleton on that occasion that the Irish provisions of the Copyright and Related Rights Act 2000 relied upon at the time dealt with notice and takedown scenarios and did not empower a court to order a graduated response...

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