It’s good enough for New Zealand, France and eircom but not, thankfully, for Ireland. That seems to be the take home message from the ruling effectively spelling the end of any ‘three strikes’ solution to illegal file-sharing in this country – for as long as our current constitution is in place anyway. Deemed impremissible under Irish law, the case brought by EMI Records Ireland, Sony Music Entertainment Ireland, Universal Music Ireland, Warner Music Ireland and WEA International not only failed in forcing UPC to introduce a system that could harm its customer base, but also clarifies a situation that will ensure no such agreement will ever be implemented on cable broadband connections in this country. At time of writing there was no word on an appeal to the Supreme Court. The word ‘backfire’ comes to mind.
From UPC’s perspective it’s all win. Not only have they solidified their customer base they have come out of litigation as champions of consumer choice and set a precedent under the concept of ‘mere conduit’ – the idea that a service provider is responsible for the upkeep and development of a network, not for what users get up to on it. Think of it as the equivalent or eircom not being responsible for what conversations take place down its phone lines.
Speaking of eircom, this result is about as bad as it gets. Having agreed to a three strikes policy last year in an out of court agreement, the revelation that they could have fought and won is appalling PR, sending the message that industry ties, not its customers, take precedence. It’s almost worth asking if they use the same PR firm as BP and Exxon.
Not that UPC is celebrating a victory that, for the moment, allows its customers engage in illegal activity online. In a sober statement released immediately after the decision, the company said it was committed to working with industry and public bodies towards a solution. By refusing to condone the actions of customers or condemn the IRMA’s disastrous litigation, UPC has done just enough to sidestep responsibility without portraying itself as a champion for the rights, or wrongs, of consumers.
Impractical
UPC may have won this round but certain facts remain about the challenge facing copyright holders entitled to make money from their work, should they choose to charge for it instead of give it away. The model proposed by ‘three strikes’ is not the removal of responsibility, merely it’s shifting from user to ISP with service, not astronomical fines used as a punitive measure. Three strikes, while impractical, in theory amounted to a way that provided rightsholders with a weapon and a way to give fair warning. In the absence of that model what will industry bodies do? The spectre of suing individuals for their actions could well be on the cards again. After all, the mechanism for finding file-sharers is in use by forensics firms in the US and UK, and was used to identify the whistleblower behind the recent controversy behind governance at the Irish Red Cross. In that case UPC was compelled to divulge that customer’s details after an order of discovery was made through the courts. This process has not changed, and if a forensics firm were to start issuing writs wholesale there is nothing any service provider can do to stop it.
UPC has not let consumers off the hook, just service providers. This is not a landmark victory for copyright infringers, just a way for service providers to step back and let industry bodies set their sights on individuals again. For the music industry the hits just do not keep on coming.
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