IRMA and Eircom Win Injunction Against File-sharing In Ireland

High court judgement supports efforts to prevent free downloading

If you were a sculptor and someone legged it with a creation of yours called “Yesterday” would you call the Gardai and have them arrested?

Alternatively, if you were a musician would you sue someone who downloaded your song called “Yesterday” and refused to pay for it?

Both of the above would be original creations.  However, according to some, it is perfectly acceptable to steal music – or is it stealing?

The High Court in Dublin on Friday gave Irish Recorded Music Association (IRMA) and Internet Server Provider (ISP) Eircom the green light to implement a three strikes and you’re out policy on suspected file-sharers (people who download music off the net).

Last year, IRMA, which controls 90% of Ireland’s recorded music, reached a private agreement with ISP Eircom to implement the three strikes policy on suspected “pirates”.

IRMA were to supply the IP addresses of people they believed were infringing their copyright and ISP Eircom would sent out warnings to any customers “guilty” of these alleged infringements. A third warning and the people concerned would be disconnected.

However, implementation was scuppered by a legal objection concerning the legal standing of an IP address.

Mr Justice Charleton, ruling on the case on Friday decided that an IP address is not personal data and granted IRMA/ISP Eircom the right to pursue their three strikes policy.

He wrote: The right to be identified with and to reasonably exploit one’s own original creative endeavour I regard as a human right. It is completely within the legitimate standing of Eircom to act, and to be seen to act, as a body which upholds the law and Constitution. That is what the Court expects of both individuals and companies.

Justice Charleton also stated that internet is only a means of communication and has not rewritten the laws of countries through which it passes.

It is not an amorphous extraterrestrial body with an entitlement to norms that run counter to the fundamental principles of human rights. There is nothing in the criminal or civil law which legalises that which is otherwise illegal simply because the transaction takes place over the Internet.

Speaking after the ruling, Dick Doyle, Director General of IRMA said: Resolving this issue has caused 6 months of disruption to the IRMA/Eircom agreement. We will now proceed immediately to implement the full agreement.

I take this to mean that they will put pressure on other ISPs to implement a three strikes policy.  But will they follow suit?

Meantime, music appears to be the only art where it is acceptable to “steal” compositions or earn a living doing cover versions of other artists’ work.

For instance a writer couldn’t reproduce Tolstoy’s War and Peace, adding a few words of his own and claiming this is his interpretation of the work.   But if the same writer could knock out a few chords on a guitar he can do a cover of any song – which like War and Peace is an original creation – that takes his fancy.

Fergal Sharkey is all for clamping down on file sharers.   Back in the 80s Fergal was part of the new wave movement. These days he’s an establishment suit.   Is Sharkey correct to try and put a stop to teenage (not to mention their parents) clicks right through the night?

41 thoughts on “IRMA and Eircom Win Injunction Against File-sharing In Ireland

  1. I really don’t see a problem with music covers. Yes, if they try to sell them, they owe royalties, but is it wrong to strum the chords to a song if it’s similar to (or inspired by, or copied from) another artists’?

    If so, I think most musicians today owe Pachelbel a wad of dough:
    http://www.youtube.com/watch?v=JdxkVQy7QLM

    as for equating the copying of a music file to the stealing of a statue: when you take a statue, the statue is gone. when you copy a file, the original is still there. I’m not trying to argue that it’s not “stealing”, but it’s certainly not the same as stealing a car or anything else physical.

    as for fergal sharkey – I’ve got news for him (heh!); it’s a whole new world.

    and for the IRMA/Eircom thing. the wording you’re using suggests that they can cut someone off the Internet just by /suspecting/ that they’re sharing illegal files.

  2. damnit – would be nice if that “notify me of followup comments” was either pre-ticked, or above the “Submit Comment” button so I see it before clicking…

  3. Sure why not follow people who buy blank DVDs and CDRs home altogether and finish the job off? Fuckwits, in my youth I used to tape borrowed LPs as did thousands of others, the same princple is and always has been there, just different technology. Get over it IRMA and the rest

  4. It’s an interesting way to look at stealing. If I learn somebody’s song and sing it in my kitchen, am I stealing?

    Kae – I’ll see if there’s a switch to turn it on by default.

    Ronwan — Didn’t everyone?

  5. what if the “thief” is not the person whose ISP was used? Yeah I know that they should know what is going on with their gear but how many parents are ahead of their kids tech wise?
    And if someone downloads at work can the employer be cut off?
    Is it not possible to use an ISP through a proxy server in the Cayman Islands, to disguise where your real ISP is? Think I seen that on telly, must get my boffins on to it?

  6. Oh and actually funnily enough, just last week while attending the EVA exhibition, I did hear of an artist whose work did consist of running into galleries robbing other peoples work and then returning and displaying it herself.
    Not sure about singing in the kitchen but there was a crowd called IMRO irish music rights association who used to go around harassing any one with a radio in a public place for dues for the artists but I think they were exposed as pocketing most of the money raised themselves

  7. Bock, yes of course everybody did, and I would not know as much about music as I do now if I didn’t and therefore wouldn’t have gone out and accumulated the record and CD collection I have now, do they not see the logic of introduction?

  8. Lol Bock. There’s no fear me of being a good enough mimic.. They’d probably pay me to shut the hell up.
    When I sing, people ask am I ok.. am I in pain or something.. :)

  9. “The High Court in Dublin on Friday gave Irish Recorded Music Association (IRMA) and Internet Server Provider (ISP) Eircom the green light to implement a three strikes and you’re out policy on suspected file-sharers (people who download music off the net)”.
    That’s one problem right there. Another is that if an IP address is “not personal data “, then why would they be needed to identify the people “suspected” of file sharing.

    While we brattle on about “stealing music” it might be worth remembering that what your actually stealing is the music businesses profits, fromt eh same people who’ve been fucking arists over since the industry began. The same people who decide that decent, musicaly talented groups are no longer commercialy viable and so churn out rubber stamp boy bands and gobshites like Britney. People, in short, people like Louis Walsh. Personaly I don’t think it’s a good idea to change laws to protect the interests of these people.

  10. Agree with you there La Craic.. except Britney’s not a gobshite!
    Maybe musicians should just make the majority of their money from live performances.. the way it’s supposed to be I feel and the record companies can get stuffed for all I care.
    I don’t agree with the judges definition of the internet.. where he says “It is not an amorphous extraterrestrial body with an entitlement to norms that run counter to the fundamental principles of human rights” ah of course it’s not extraterrestrial :) but it has no borders, definitely seems amorphous and protecting the profits of record companies does not seem like a human rights issue to me.
    Also mentions in the post the judge says, “The right to be identified with and to reasonably exploit one’s own original creative endeavour I regard as a human right.” Exploit being the key word there for me and it’s not the rights of the artist that are the issue really.

  11. could it be turned around so that some of those “suspect” artists could be accused of imitating Bocks (Box?), parrot, and counter sue

  12. Louis Walsh, a deformed pygmy, has been raiding the Motown back catalogue for decades now for his karaoke artists. However, he’s covered his ass –
    something he wouldn’t normally be inclined to be doing – as he’s obviously forked out the royalties.
    We had the alleged pedophile Michael Jackson buying out the Beatles back in the 90s.He reckoned -correctly – that he’d make a financial killing when they switched over to CD.
    Likewise, we then had the absurd situation where if Paul McCartney wanted to re-release Yesterday, which he created, he’d have to negotiate with Jacko. a man who admitted he slept with children. Music, the purest of all the art forms, is wide open for financial chicanery. Most other artists don’t sign contracts. But musicians do, thus surrendering control of their creations to middle men. The courts and IRMA will be on the wrong side of history here. If an ISP closes someone down and they will simply sign up with another, like Madam Medusa, cut off one head, etc etc. Meantime, back in my day when one of the lads bought an LP we would all call round with our tape recorders, making a copy.We couldn’t afford to buy it. Were we criminals?

  13. Hey Bock

    I’ve been following these kinds of decisions around the world, and the three strikes law is nothing new. Sweden implemented the IPRED law; the UK have the Digital Economy Bill. In Sweden’s case, the law reportedly made no difference to the level of piracy of music and other creative works, as people moved to encrypted VPNs to hide their activities from their ISPs.

    There are any number of problems associated with this kind of law. If I understand it correctly, Eircom will provide a IP address of a customer suspected of downloading infringing works (please bear in mind that the correct term is infringement, not theft). This IP address, however, cannot confirm who was at the computer at the time – it’s an external address that only pinpoints the connection in question. For example, if someone has a wireless router hooked up, the IP address points to the router. If that router is unsecured, and someone else downloads through the connection without the owner’s knowledge or consent, the owner is liable because they cannot prove it wasn’t them. If an employee downloads something, the employer may be liable. If a child downloads something, the parent may be liable. If a friend downloads something from your connection, you are liable.

    In short, actually finding the culprit isn’t easy. There’s a lot of room for innocent people to be cut off, whereas those who pirate the most have the technical know-how to hide what they do or piggyback on other connections. Wireless routers are probably the weakest points – I would not be surprised if cafes or libraries stop offering Wifi to avoid liability.

    As well as that, this seems to be based on suspected infringement, not actual infringement. Are people guilty until proven innocent now? That’s a dangerous precedent to set. Other reports from the US also suggest that it’s not always clear what is infringing and what is allowed under fair use guidelines – for example, take a home movie with a song playing in the background being shared between family members from abroad. Is it still infringing? What if someone downloads a file that’s out of copyright in another country but in copyright here? People may find that they’re receiving notices for what they consider to be normal, everyday activities.

    I think the three strikes law is fundamentally a bad idea, and it will probably lead to a lot of wasted money on the part of the government, the ISPs and the IRMA. Mr. Justice Charleton’s comments make it clear to me that he hasn’t done any research on this issue and its effects elsewhere, and because of that I consider his ruling to be flawed.

    Sorry for the wall of text. Most of it comes from my own reading on the topic. I do enjoy your blog.

    Regards

    C

  14. Talk about the law being an ass! It beggars belief that the legal ‘profession’ are still involved in cronyism which I believe is the case here. What ever judge or judges made that decision I believe they are not fit to sit. Remember the theft by Sony from Gilbert O’Sullivan? £35million I think they had to pay back to him, took years out of his life. That court had an honest judge. Ireland does not have a court system that can be trusted and this case points that out; glaringly so.
    That shower of fuckwits, IRMA represent Sony and the rest of those shits who have been fuming since the advent of broadband which gave us access to stuff previously controlled by them. IRMA should be boycotted, as for the judge; the Government will back him to the hilt should anyone complain. Corruption in all its perverted glory; Irish style.
    Clair Ryan has it spot on.

  15. -Claire
    You can add France’s HADOPI law to your list.

    -Second’s out
    “If an ISP closes someone down and they will simply sign up with another,..”
    I suppose we’d have to check the text of the law but in France they got around this by proposing that, not only would your connection be cut BUT you have to continue paying the ISP for your no longer functional connection (the IPSs argued financial prejudice) AND you cannot sign up to another until your internet ‘ban’ is up.
    Ireland’s government, being shamlessly slow and stupid when it comes to implimenting good ideas from abroad, have an amazing knack at being quite efficace when it comes to bad ones.

    -FME
    Sorry, but Britney is a gobshite, though it has to be said a rich and famous one, so good for her.

  16. You’re absolutely right – I did forget the HADOPI law.

    I should look up the effects of the law on filesharing in France. If I recall right, the last I heard was that Sarkozy’s political party had been caught infringing someone’s copyright on three seperate occasions, so people were wondering if and when he’d be cut off.

    What was interesting about that was that in at least one case, you could make the argument that the infringement was entirely accidental – again, something that the law fails to recognise. If the infringement is not wilful or commercial in nature, is it still reasonable to disconnect someone?

  17. -Claire “Sarkozy’s political party had been caught infringing someone’s copyright on three seperate occasions”

    :) Indeed. For their ‘LipDup’ promotional video, that would pass in translation as sommething like “Young Tories get Home with the Downies” (if I might rob a Dylan Moran joke)
    The never asked permission to use the song by Quebecoise Marie-Mai, they never asked the SNCF (train service) for permission to film (around €4,500 normally) and they neever asked for permission to use the image and mark of the SNCF high speed TGV trains, and about a year before they were convicted and obliged to pay €32,500 for using the music of american band MGMT for their meetings.
    The most surreal part was to see the UMP, the party who brought in HADOPI, trying to explain how it wasn’t serious and copyright wasn’t important. It would be funny if they weren’t the party in power

  18. Very chuckle-worthy, indeed! Another instance I heard of was to do with the HADOPI logo design – apparently the font they used for the name ‘HADOPI’ was used without permission. They had to modify it after the rights holder raised some serious questions.

    The case of the video does highlight how often infringements occur (though I would note that the use of the TGV trains’ logo and image may be a trademark issue, and not copyright). Copyrighted material is literally everywhere. Someone filming a home movie will undoubtedly pick up such material without even realising it.

    Say, for example, someone’s filming their kids at home playing a computer game on the TV. They’re not concerned with permissions, or music licenses – but if their video shows the content or records the sounds in the game, and they then share it with their relatives and friends, legally speaking that is infringement. Under the three strikes law, they can be disconnected for it unless the Dáil somehow adds provisions for fair use. I’ve heard nothing about such provisions to date though.

  19. The Dáil adding provisions? Not on your nellie. Unless of course there’s a brown envelope involved. They haven’t gone away you know.

  20. Out of interest, here’s where your CD money actually goes.
    And any musician who’s been around the block will have read (or perhaps lived) Steve Albini’s “The Problem With Music” article from 1993.

    Also note that Pirates Are The Music Industry’s Most Valuable Customers.

    As I’ve said elsewhere:

    I had to laugh at the comment that:

    “People work hard to do what they do and should be entitled to make money.”

    This is ludicrous from an artistic and a business perspective. No-one could even begin to tally the hours of blood, sweat and tears that have gone into countless number of films/songs/poems/paintings etc that eventually never made a dime. And their creators worked just as hard as those that somehow found success. I’ve worked on a number of albums that didn’t break even, some records never even see the light of day due to backroom studio deals.

    The idea that we’re all “entitled to make money” is preposterous. We’re entitled to try, but if you’re in an industry where the basic product (music, film etc) is now ostensibly free, then you’d better sell something else if you’re goal is making money. I suggest oil, gold or burgers.

    Leave the art to the people whose passion won’t let them do anything else.

    ::

  21. Good article Darwin (The Problem With Music, article from 1993.).. The first paragraph is the best.. :)

    “Whenever I talk to a band who are about to sign with a major label, I always end up thinking of them in a particular context. I imagine a trench, about four feet wide and five feet deep, maybe sixty yards long, filled with runny, decaying shit. I imagine these people, some of them good friends, some of them barely acquaintances, at one end of this trench. I also imagine a faceless industry lackey at the other end holding a fountain pen and a contract waiting to be signed. Nobody can see what’s printed on the contract. It’s too far away, and besides, the shit stench is making everybody’s eyes water. The lackey shouts to everybody that the first one to swim the trench gets to sign the contract. Everybody dives in the trench and they struggle furiously to get to the other end. Two people arrive simultaneously and begin wrestling furiously, clawing each other and dunking each other under the shit. Eventually, one of them capitulates, and there’s only one contestant left. He reaches for the pen, but the Lackey says “Actually, I think you need a little more development. Swim again, please. Backstroke”. And he does of course. ” :)

  22. Michelle, Unstranger said that in the above, what’s this, a cover version of his paragraph?

  23. To correct myself: what we’re talking about here is an agreement between the IRMA and Eircom. Strictly speaking, it’s a private contract and thus the Dáil have no authority to force the IRMA to include fair use provisions.

    I’m not sure of Bock’s rules regarding links to other blogs, but here goes anyway – I wrote a longer and more detailed article on this. It’s here: http://taleweaving.blogspot.com/2010/04/three-strikes-and-youre-out-is-not-game.html

    If leaving the link here isn’t kosher, please edit this post and delete it, Bock.

  24. I make up the rules as I go along.

    Here’s the basis for posting policy: if you seem like a decent skin, you get away with murder.

    It works well for the decent people and the rest don’t matter.

  25. As a muso who covers other artists and who also writes his own music I see both sides of this coin.In this country the only way I can put food on the table is to play”covers” and bar lottery winning luck or selling my soul and being a Louis Walsh shitebag/Crystal Swing muppet I have no option but to play/interpret other peoples music to keep the punter/bar owner happy.
    Yet I do not,and have never downloaded an album illegally or otherwise,I continue to buy cds,(2 or 3 week)because I like to have that physical entity in my hand,that is what makes an album,the cover art,the 12 or whatever tunes and not just individual tracks.Good albums achieve this,downloading your 2 or 3 favourite tracks will always miss the point of what the artist is trying to portray within that medias confines.
    Purely gigging for a “living” is not attainalbe or achievable for the vast majority of musicians and while recording is eminently more accessible and affordable these days thanks to the digital revolution I feel the primal need for a family and sustainable living conditions will/has led to a world where the best and most talented will get disillusioned and not bother .This is the reality and this is what the industry and those who work in it are faced with,nothing can be done about it at this stage as music has become merely a file on someone’s computer,not a work of art which should be paid for.That is the reality we as musicians are faced with unfortunately but such is the world we live in.

  26. I noticed in above comments that people seem to think that the law is after an individual, individuals don’t have IP’s associated to them but their homes/businesses do, they simply mail the warning to the address that’s associated to the IP address in question given to you by your ISP, packets sent from your router to them will contain this information along with your MAC address of your NIC in you pc, they warn the household and if copyrighted material is still being downloaded to that IP that can escalate the issue to finally blocking that IP from their service.
    Also its mentioned that if an employee downloads in a company, the IT staff will know exactly who is responsible and perhaps deal with him after receiving the first warning internally to avoid any escalation.

    I was never into pirating music, but if I heard of a band I’d check them on you-tube and if I liked it I’d go and buy that single/album, and if an artist I like is playing locally I’ll go see them. On the other hand, I did away with my TV last year as was sick to death of the shite RTE were insisting I pay them the privilege of watching and now download episodes of programs I like, it means I never miss one and can be up-to date with airings form the States, but you wont see me spending 99euro on a box-set as I’m only going to watch it once,( also no commercials :) ). Music on the other hand I will listen to daily and for years, therefore worthy of my 20 squids.

    In all likeliness, IRMA will only go after the heavy down-loaders and make examples of them, its impossible for them to stop every single one in the country from ripping a tune from youtube or one shared between friends.
    @Pauleire: I agree with you about music has only become a file on a computer, people may now say a piece is a work of art but are unwilling to see that they are not rewarding the atrist for his/her creation.

    Sorry if I went a bit of subject

  27. Mr Darwin. What would your view on the subject of a “hit” be. If you were to have a “hit”, a smash hit, which reached number uno in the USA and er, Kazakhstan, do you agree that you deserve to make a profit from it. How would you react if people were down loading your original creation free off the net and you weren’t receiving a bob?

  28. may be slightly off-topic, but I’m a recent author (working on a second now), and within days of the book being published, it was available on the Internet from thousands of download sites as a free PDF. (example: http://www.google.ie/search?q=%22jquery+1.3+with+php%22+pdf )

    personally, I have absolutely no problem with this, because it spreads the book around, and people that prefer real books will buy a copy of the real thing.

    as an example, on my desk, I have a copy of “PHP5 CMS Framework Development”. that cost me €41.80 from Eason.

    now I /also/ have the exact same book sent to me weeks beforehand by the book’s publishers in PDF format to review. I simply found it impossible to read a full book in PDF and was interested in the book, so went out and bought it.

    how does this tie in? physical objects are more interesting than their digital representations.

    the recording artist above says he doesn’t have the resources to gig. I would argue that if he gave his music away for free (or close to it), then he may develop enough of a fan presence that it would be financially viable to go where the fans are and play the songs in person.

    the problem with art is that for most people, it’s not a paying job. there was a show on TV last night about a load of Goldsmith artists that clubbed together into a large area and made a gallery of their work, and frankly, I don’t see how they would expect to make money at all.

    personally, I believe that if you want to make money, you have to do a job that people are willing to pay for. if you want to make art, then you have to understand that art doesn’t always sell.

    and in modern times, when it’s simple to copy films, books and music digitally, you really do need to come up with a reason for the customers to want something physical.

  29. Congratulations on your book Kae, more power to your pen. Physical objects ineded, maybe that’s why news of the demise of newspapers (thank God) is greatly exagerated. Lots of people still buy the paper ever day even thought they can read it for free on the net

  30. Kae,

    your argument makes much sense in many ways, however I think you may have missed a very important point which everyone else seems to be missing too.

    The originator (or an entiry to whom rights have been assigned by the originator) of the work has the sole right to decide how, when, why and for how much their creation gets to be copied / displayed/consumed. It’s not about whether or not YOU think it’s a good thing for the originator, or for the material itself. ONLY the person who has the right to copy and distribute the material gets to decide.

    And _that_ is the fundamental argument at the core of the entire ruling.
    The Judge in this case decided that the right of the originator was inviolable, and trumped any perceived “rights” that anyone else assigned themselves to material that they have not been assigned permission to copy.
    Sure, yes, the record labels will jump on this kind of thing and they will try to use it to turn the screws on people sharing music, etc, but that’s not really the point.

    It’s nice that you personally don’t have a problem with your book being made available for free over the Internet, but that’s *your* choice to feel that way. Physical objects are more interesting *to you*.
    You would be equally right to be fuming that somebody else had decided that your moral right to control your own creation wasn’t worth honouring. I could print your book and bind it in maybe an hour, yay, I now have a free, physical copy of your work. That can’t be right.

    I think the “not the same as stealing something physical” argument is disingenous here because digital media have no analogue in the real world.
    The closest you could come to would be maybe if you worked for a bank, and you periodically “borrowed” money from them, lodged it to a holding account, and creamed off small amounts of deposit interest before putting the money back where it came from.It’s tenuous at best, and isn’t that the kind of shenanigans that has us baying for blood in other discussions anyway?

    I agree that for struggling musicians, trying to be heard above everyone else and not wanting to sell their souls to a greedy record label, the Internet / digital distribution is a great way to let people know you exist. Hell, I never heard of half the people in the vidyas Bock puts up here, but I’ll remember (most of) them

    But ultimately, the decision to allow their music (etc) to be copied and shared should rest with the artists, and the artists only. Whether or not it makes money for them, and how much, is neither here nor there. Nobosy is entitled to make money just by doing something, but if perchance you did pen the next #1 hit, and people are willing to pay to hear it, then you are certainly entitled to ensure that they do so under your terms and your terms only.

  31. hi Bock

    loving your blog.

    All I can say about stealing music, is its just as well we had no inspectors coming round our houses in the 70’s around 7pm on a sunday evening when we were all taping top of the pops onto our groovy newfangled cassette recorders. Thankfully the music industry survived grand theft pop music.

  32. This is bull,

    Since when did Ireland turn in to China.Thepiratebay was blocked last year i still does not stop people using it who have Eircom accounts.

    I just means you have use a proxy,What happens if i use a proxy?Can Eircom still tell if i am using filesharing sites?
    What about the legal files i can download from filesharing sites,

    Eircom gave people wireless routers with huge security flaws,Will they still punish the innocent people who have another computer using there Broadband that they are unaware of?

  33. There are other two websites like Epidemic Sounds and Music Bed both of them offers one the creative soundtracks.
    Music Bed is Royalty Free but Epidemic Sounds can logged in via Freedom account for free?.

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