Raise a glass (or the Legal Antiquarian’s Lawyer Stein) to the Irish! Happy St. Patrick’s Day from Dublin and from the legal blogosphere and welcome to this week’s Blawg Review, back at Lex Ferenda after a not-too-unsuccessful tryout for the team in Blawg Review #128. Of course it’s not just the week or month of that most famous of Welshmen, Patrick; the Ides of March are commemorated by What About Clients? and David Giacalone at f/k/a. St. Patrick’s Day is a public holiday in Ireland and in Northern Ireland; Life at Work (in New Zealand) weighs in with some amusing observations on holidays from work.

In Chicago (where, as you may know, the river runs green; no need to notify Patrick S. O’Donnell, who posted wonderful bibliographies on bioethics and on environmental and ecological worldviews at his new home on Ratio Juris, it’s perfectly environmentally safe), it seems that as reported by Rob La Gatta the American Bar Association’s “Beer for Bloggers” was displaced by the crowds of St. Patrick’s Day revellers. Well, they did hold the event in Kitty O’Shea’s…so this was fairly inevitable. But did the bloggers turn green? (More from the Common Scold). The show that they were all attending/drinking at was the ABA Techshow, which sounds like it was a great event; Technolawyer, next week’s Blawg Review host, has the full story.

St. Patrick’s Day, of course, is also a religious occasion (technically taking place on March 15th this year, causing some confusion; explained by Terahertz and Diamond Geezer and - ahem - the Home Brewing Blog). Catholic voices across Ireland and the world spent much of this week digesting the news that the Vatican has updated its list of mortal sins. The Law Librarian Blog has more, and Above The Law talks about Sins 2.0. Continuing with the religion-and-the-world theme, Paul Secunda at Concurring Opinions writes about religion in the workplace in a readable and intelligent summary of his recent paper on the topic.

St. Patrick is also the patron saint of engineers. His intervention might be necessary to assist poor Chis Avenir, an engineering student at Ryerson University in Toronto who found himself in a spot of bother for organising a Facebook study group. The certainly-Irish-Canadian Peter Ryan has all the details. Elsewhere in the diaspora, Ann Bartow at Feminist Law Professors reports on green bagels, green beer and a 5K green run. Other interesting posts there this week included a report on a conference on Working From The World Up, which sounds very interesting (more on this from Ann Althouse . Catherine O’Rourke from the University of Ulster (at the northern tip of this fair island) spoke at the conference on the topic of ‘International Feminism’.

The Irish blawgosphere is on the small side. Still, what we lack in quantity we try to make up in quality. Some particularly good pieces from the last week come from barrister Fergus O’Rourke (not a blogger or blawger) on insurance advice, Edward McGarr on discovery and, keeping it in the family, Simon McGarr (at tuppenceworth.ie) on the government Minister with responsibility for the ‘information society’ not liking bloggers all that much.

Irish techie eyes are not smiling, though, at the news that the major record labels are seeking a court order to compel ISPs to implement a particular filtering system to prevent ‘illegal downloading’. The Digital Rights Ireland blog has the full story and Jim Carroll has more. Another Irish case sparking interest across the globe is Goodfellas v Irish News, reported by Eoin O’Dell here (also discussed at Blurred Keys, The Fatalist, Salut! and the Illinois Business Law Journal; special points for the Simpsons reference in that last one) . Eoin also has a series of posts on the abolition of criminal libel and the progress of the Defamation Bill at his blog, cearta.ie.

Kevin O’Keefe wonders what the impact of law blogging is on the market profile of firms-with-blogs. Certainly, Irish firms like Matheson Ormsby Prentice, which this month celebrated being the only Irish law firm in the Irish ‘Top 50 companies to work for‘ list, might take notice. But the downside of large firms is discussed in this WAC post. And blogging lawyers must have seen their hearts skip a beat (and not in the good way) at the news that the formerly anonymous Patent Troll Tracker is being sued for defamation. Though, the clueless lawmaker of the week is in Kansas, and Eugene Volokh dismisses with ease an attempt to ban anonymous online speech. An extremely thoughtful overview of both Patent Troll Tracker and more general issues is provided by David (O’)Donoghue at Chicago IP Litigation.

Intrepid blogger of the week is Anne Reed, who found out all about the jury system in Japan. Could Anne possibly be Irish?? The endangered species that is the redhead (insert joke here if you must) is even celebrated in an Irish documentary airing this weekend.

Now, the big news out there is that Eliot Spitzer is governor of New York no more. And where to start? There’s some concern about the use of photos from MySpace; Balkinization imagines a future Supreme Court decision on this topic, Eric Turkewitz makes a connection with medical-legal issues, Scott Greenfield wonders what next, and some commenters have even been talking about the money. The wonderful ‘recovering lawyer’ and comedian Madeleine Begun Kane even commemorated the events with a limerick! And what if he seeks forgiveness?

So it seems unlikely that Spitzer will be marching (at least in an official capacity!) in this year’s St. Patrick’s Day Parade in New York City (his resignation is effective as of noon on March 17th). Such parades have of course given legal scholars a great case to write about, being of course Hurley v Irish-American GLB Group of Boston. Anyway, it does seem that Senator Hillary Clinton will be busy, and the people in New York will be led by sports commentator Tommy Smyth. In Ireland, we’ll be watching these New Yorkers, but also following journalist Shane Hegarty’s Spotter’s Guide. Irish politicians tend to head to anywhere but Ireland on St. Patrick’s Day (illustrated by Martyn Turner here; other famous Irish globetrotters may interest Blawg Review’s famous editor), but while they are away Damien Mulley will make hay with their disclosure statements (more here)

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

Tags: blawgreview, Ireland, Law

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.

Tags: copyright, eircom, Ireland