Record companies take internet provider to court

By Vivion Kilfeather - Saturday, June 19, 2010

FIVE major record companies have taken legal action against an internet service provider here in a further bid to stop illegal downloading of music which they estimate costs them and performers almost €20 million a year.

The latest case, which is expected to take two weeks, is against cable operator UPC Communications Ireland Ltd, the third-biggest broadband provider here with 15% of the market and 148,000 subscribers.

Opening the case at the Commercial Court yesterday, Michael McDowell SC, for the companies, said they do not accept UPC’s claims that it is a "mere conduit" which can do nothing to prevent illegal downloading.

The companies contend UPC is itself liable for acts of infringement by people using its services, including those accessing the Pirate Bay and other websites which allegedly facilitate illegal downloading. They want orders requiring UPC to block or disable access to such sites by infringing subscribers and allege UPC’s failure to do so constitutes infringement of the copyright of the companies and breaches Irish and European law.

Mr McDowell said UPC had written to the companies asking them to discontinue the legal action pending the issue of illegal downloading being addressed by legislation but there was no indication if or when legislation would be enacted or even that there was a consensus in the Dáil about any form of legislation.

UPC was in fact saying they don’t want different responses from different service providers but a uniform response across the industry enforced by legislation and all of that seemed to be based on a fear of competition, counsel said. This was not a basis to discontinue the case.

Similar proceedings were brought previously by the companies against Eircom, which settled on terms including the companies providing Eircom with IP (internet protocol) addresses of people detected illegally file-sharing copyright works.

Eircom has also agreed to operate a "three strikes and you’re out" policy against subscribers who ignore warnings to cease infringements. Under that system, subscribers get three warnings they have been detected sharing copyrighted music owned by Irma members. If they are found doing it a fourth time, their broadband connection will be cut off for a year.

The music companies are also in talks with Vodafone and Eircom subsidiary Meteor Ireland about a similar system.

In the latest proceedings, being heard by Mr Justice Peter Charleton, EMI Records (Ireland) Ltd, Sony Music Entertainment Ireland Ltd, Universal Music Ireland Ltd, Warner Music Ireland Ltd and WEA International Incorporated want UPC to give similar undertakings to prevent "peer-to-peer (P2P) infringers" illegally downloading.

In an affidavit, Willie Kavanagh, chairman of the Irish Recorded Music Association (IRMA), said it had asked UPC and BT Communications to agree to implement the measures in the Eircom settlement but both declined. BT had since been taken over by Vodafone.

UPC said the companies’ proposals did not take into account the rights and interests of subscribers or of UPC itself.


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