By Karla Hughes

Irish ISP Eircom recently settled the case brought against it in the Irish High Court by several major record labels, by agreeing to adopt a “3 strikes and you’re out” policy with regard to illegal downloading. The action against Eircom was brought under § 40 of the Copyright and Related Rights Act, which states inter alia: “where a person who provides [facilities for making available copies of a work to the public] 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 the infringing material as soon as practicable thereafter that person shall also be liable for the infringement”.

The 3 strikes approach has been gaining momentum over the past two years – Eircom is only the latest ISP to succumb to the wrath of record companies.

For example, in Denmark, the music industry brought actions against ISPs, forcing them to disconnect subscribers who accessed certain websites containing infringing content. In Belgium, the court in SABAM v. Scarlet (Tiscali) (Court of First Instance, Brussels 2007), ordered an ISP to monitor the activity of its users and block any attempted illicit file transfers, placing a very significant burden on the ISP. France, the original pioneer of the 3 strikes model, has not yet officially implemented the policy.

Further afield in New Zealand, a broadly worded amendment to the New Zealand copyright legislation has been passed, which increases the responsibility of ISPs in relation to copyright infringement. The amendment, which allows ISPs to cut off the internet subscriptions of repeat offenders, has been postponed from implementation due to widespread protest, including voluntary blacking out of some networking and blogging websites.
The UK and Germany are currently resisting the trend. The German Secretary of Justice has stated that it is not an appropriate solution, speculating at the outcry that will ensue from the first disconnections.

In Ireland, 3 strikes will mean that internet users found to be downloading questionable files will be given an initial warning. If the behavior is repeated they will be given a final warning, and should it happen a third time then, like it or not, their internet connection will be suspended.

Needless to say, for such a regime to be a success, the cooperation of all other Irish ISPs would be required. Otherwise, there would be nothing to prevent an infringer from simply subscribing to a new ISP. An exchange of the information of “blacklisted” users between ISPs is one way to ensure the ban is a complete one. Furthermore, the record companies have said that they intend to put pressure on other Irish ISPs to follow suit by implementing similar arrangements.

The agreement between Eircom and the various record companies has apparently allowed Eircom to keep the privacy of its subscribers somewhat intact. Under the arrangement, the record companies are to provide Eircom with the IP addresses of individuals they suspect to be engaged in illegal downloading, and Eircom will then contact the particular subscribers in question. The settlement has allowed Eircom to avoid the possibility of having to implement expensive “fingerprinting” software to detect infringers.

Mr. Willie Kavanagh, the chairman of EMI Ireland has described the settlement as “the first of its kind worldwide.” It is, without doubt, a welcome development for the music industry and trade organizations like the International Federation of the Phonographic Industry (IFPI).

However, the implications of this new approach to preventing copyright infringement may be far reaching. It is highly likely that other copyright owners will want to get in on the game, in particular the motion picture industry. Aside from copyright owners benefitting, the involvement of the ISPs as a kind of internet police raises questions as to whether they will, in the near future, be asked to regulate content. Why not prevent subscribers from entering certain sites containing immoral or violent material? If we lay the responsibility at the door of the ISP to prevent illegal downloading, what will they be expected to control next? Will they become obligatory content-monitoring entities controlling what is accessed by subscribers, and in effect censoring the internet?