The Record Companies vs The ISP – in Ireland!

If you’ve arrived here through searching, as most of you have, you may be looking for the result of the case rather than this post, which is from the start of the case. The result is discussed here.

Today’s news about the case being brought by a number of Irish record companies against Eircom (the former State-owned telco and still a very significant player in voice, broadband and other services) is unexpected in terms of its timing, I suppose, but also long ‘overdue’ in that it has been discussed and wondered about for some time. Of course, we have (muddy) history on musicos v ISPs when trying to get subscriber data but this case is different – it’s the ISP itself that is the sole defendant.

Discussion at the Irish Times (breaking news) here, and more from RTÉ here, and reaction from Jim Carroll (great music journalist at the Times) here. In this post : introduction, making available, filtering, IP rights enforcement and other comments. In particular, I think that Article 15 of the EU’s E-Commerce Directive (2000/31) is of some significance, and I explain why below. Please add your own knowledge and let’s see if we can get a handle on what’s going on…

INTRODUCTION

First of all, what’s happening? Well, so far we only have press reports to go on, but they seem to be seeking orders under the Copyright and Related Rights Act and claiming that Eircom is ‘making available’ music protected by copyright law. I think they’re referring to downloads via Eircom connections rather than Eircom hosting music on its servers. The industry asked Eircom to put filtering software on and Eircom said no thanks. Eircom’s defence appears to be (according to its lawyers) that “the company was not on notice of specific illegal activity that infringed the rights of the companies and had no legal obligation to monitor traffic on its network.”

INFRINGEMENT OF COPYRIGHT LAW

Let’s look at that making-available thing (a standard concept in copyright law and is section 40 of the Act). Now, that is defined as including via the Internet – so chalk one up for the recording industry – but there are specific provisions for intermediaries :

(3) Subject to subsection (4), the provision of facilities for enabling the making available to the public of copies of a work shall not of itself constitute an act of making available to the public of copies of the work.
(4) 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.

That seems to presume that notification is the issue (it doesn’t say “has notice” which might allow for constructive knowledge to be pleaded; it says “is notified by the owner” which I would argue is more favourable to the ISP).

The Supreme Court of Canada dealt with this question in a landmark decision in 2004, SOCAN v CAIP (music publishers vs ISPs!). The question that interests me here is whether the ISP is liable for works communicated to the public through its networks; in a famous and influential passage, Binnie J said :

Section 2.4(1)(b) is not a loophole but an important element of the balance struck by the statutory copyright scheme. It finds its roots, perhaps, in the defence of innocent dissemination sometimes available to bookstores, libraries, news vendors, and the like who, generally speaking, have no actual knowledge of an alleged libel, are aware of no circumstances to put them on notice to suspect a libel, and committed no negligence in failing to find out about the libel [various citations of libel cases!]

Binnie went on to say that “So long as an Internet intermediary does not itself engage in acts that relate to the content of the communication, i.e., whose participation is content neutral, but confines itself to providing “a conduit” for information communicated by others, then it will fall within s. 2.4(1)(b)” and then pulls together everything from recent WIPO statements (“the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of [the WIPO Copyright Treaty or the Berne Convention]“) to 19th century telegraph law (“the owners of the telephone wires, who are utterly ignorant of the nature of the message intended to be sent, cannot be said … to transmit a message of the purport of which they are ignorant”).

FILTERING

On the suggestion of filtering etc, I think that there is a serious and significant issue here from the E-Commerce Directive (ECD) of 2000. Three articles deal with exclusions from liability for conduits, cachers and hosts in terms of the general law, subject to certain exclusions (the most important being notice) and the power of a court to require “the service provider to terminate or prevent an infringement”, which is qualified clearly and importantly in Article 15:

1. Member States shall not impose a general obligation on providers, when providing [in essence, ISP, caching or web hosting services], to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.

Now I think that an Irish court forcing Eircom to engage in the type of filtering that the music industry appears to be asking for (again with the proviso that I haven’t seen the pleadings, if they exist, so I’m going on press reports alone) would potentially be inconsistent with the Directive. What do you think? I’m reaching this conclusion independently of the Promusicae case (where the difficult question of disclosure of subscriber data in connection with IP law was discussed by the European Court of Justice) although I’d add that some of the comments in Promusicae about harmonisation of rights including Charter of Fundamental Rights rights could certainly be interesting in this context).

IPRED

Favouring the recording industry, we have the provisions of the IP Rights Enforcement Directive of 2004, which sets up various civil remedies (injunctions etc); our transposition was very minimalist as a lot of this is already in Irish law due to common law (Mareva injunctions, etc). I’m not sure whether this will have an impact but I suspect it might be a factor.

OTHER

Oh, and Jim Carroll also wonders why it’s the record companies and not IRMA. Off the top of my head, I think the answer is that it’s probably easier for them to do it (the head of IRMA is head of one of the record companies involved so they’re clearly on message, it’s not a split or breakaway) as they wouldn’t have to get involved in a preliminary issue about legal standing in the court – the record companies not IRMA ‘own’ the relevant rights and therefore they are the most convenient legal entity to bring the suit.

11 comments

  1. Daithí says:

    The record number at the High Court is 2008/1601 P and the solicitors are Sheehy Donnelly (for EMI, Sony BMG, Universal and Warner) and Arthur Cox (for Eircom).

  2. Daithí says:

    How relevant is the Sabam v Tiscali case from Belgium? (Link is to a PDF translation as provided by TJ McIntyre). I think there are huge problems with the reasoning in this case (although some of my objections could be due to translation, so it’s a tentative slamming rather than an unconditional one), and some of the key points (such as the impact on freedom of expression) are barely acknowledged. However, there are certain similarities in the mix so it’s worth reading, especially for what it does with Article 15 of 2000/31…

  3. [...] other blog coverage: Lex Ferenda with some details about the legal situation, and Jim [...]

  4. Hi Daithí,
    Article 15 of the Electronic Commerce Directive should be read in conjunction with some of the recitals, some of which were added to the directive in a later stage, for instance recital 48 and 46. 48 seems to imply the possibility of a court order directed at the ISP to prevent further infringements. 46 points to freedom of expression. You can find some discussion in Julia Barceló 2000, Online intermediary liability issues, E.I.P.R.

  5. Daithí says:

    Hi Joris! Been thinking about that today especially in the context of SABAM. I wonder if you’d have to prove that the ISP had actually infringed (or was threatening to infringe) in order to get the order involving filtering – what do you think? Can you find any other situations other than Belgium where this has been litigated directly – I can’t….

  6. I am not sure about that question. It depends on your national law. I am very interested in the answer. In the Netherlands one would have to look at copyright law, general tort law (facilitating copyright infringement by intermediaries has in some specific cases been qualified as a breach of the legal duty of care) and the implementation of the Directive. There has been some recent discussion about filtering, but there is no case law. I do not know of other cases except for the SABAM case. For some perspective, it could be interesting to look at some US case law with regard to filtering and First Amendment treatment of overinclusive and underinclusive filters. See for instance the COPA case law, http://www.paed.uscourts.gov/documents/opinions/07D0346P.pdf

  7. hp lehofer says:

    As for the enforcement directive, the issue whether ISPs are intermediaries and whether they may disclose personal traffic data (dynamic IP addresses) to private third parties (such as rights owners) is pending at the ECJ, case C-557/07 LSG; see
    http://www.contentandcarrier.eu/?p=238

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