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?