ISP Records a Hit in the High Court

Author:Ms Kate Colleary
Profession:Eversheds O'Donnell Sweeney
 
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EMI Records (Ireland) Ltd and others v UPC Communications Ireland Limited.

Yesterday, Mr. Justice Charleton in the Commercial division of the High Court refused to grant an injunction against an Internet Service Provider ("ISP") forcing it to take steps to prevent the illegal file-sharing of music by its customers.

After reviewing the expert evidence, Mr. Justice Charleton held that this type of order would be just and proportionate but that the Court lacked the jurisdiction to make the order.

Background

A number of record companies joined together to issue Commercial Court proceedings asking the Court to order UPC to take measures to prevent copyright infringement on its broadband facilities and to block "The Pirate Bay", a popular file-sharing website.

Evidence was given to the Court on different types of technical solutions available to UPC, eg filtering/blocking and a graduated response system whereby persistent infringers would have their internet access cut off using "a three strike" policy. The record companies involved in these proceedings had previously entered into a voluntary arrangement with Eircom who agreed to implement a three strike policy. The Court was also told that other countries operate a three strike system successfully. Mr. Justice Charleton noted the different legislative approaches taken by other countries (UK, the US, France and Belgium) but held that the remedies sought were not available under the Irish Copyright and Related Rights Act 2000 (The "Copyright Act").

The record companies relied on Section 40(4) of the Copyright Act, which essentially makes ISPs liable for copyright infringement if they fail to operate a notice and take-down policy. It provides: "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".

Judgment

Mr. Justice Charleton found that UPC's customers were using its broadband facilities to download pirated music. He said that he was "satisfied that the business of the recording companies is being devastated by internet piracy. This not only...

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