High Court Says 'Three Strikes And You're Out' Not Enforceable

The High Court has ruled that the major record companies’ ‘three strikes and you're out’ solution to illegal downloading is legally unenforceable in Ireland.

The court's decision will undoubtedly put additional pressure on the Minister for Communications, Energy and Natural Resources, Eamon Ryan (pictured right), to speed ahead with a Digital Rights Bill similar to the ones operating in other EU member countries.

The subject was a real hot potato at The Music Show, held in Dublin over the first weekend in October, with musician Sharon Corr and Warner Music Europe CEO John Reid, as well as participants Paul Brady, Victor Finn (CEO IMRO) and Marc Marot (CEO Entertainment SEG) among those who were highly critical, during the Communications and Music panel, of the Government for its failure to legislate on the issue.

During the course of the debate at The Music Show, Minister Ryan announced a commitment to holding talks on the issue of illegal file-sharing between representatives of the music industry, the government and the ISPs. However, the impatience of the music industry, and increasingly of artists, was clear when the Minister's plans were given the thumbs down. "It'll take a year and you'll be out of office by then," John Reid warned. "Put a law in place. It doesn't hurt the ISPs." That impatience is all the more understandable, in the light of today's decision.

While acknowledging that piracy “not only undermines their (record companies’) business but ruins the ability of a generation of creative people in Ireland to establish a viable living,” Justice Peter Charleton said that there’s currently no provision under Irish law for illegal downloaders to be disconnected by their ISP providers.

The High Court challenge was mounted by UPC, who’d been threatened with legal action by Warner Music, Sony BMG, Universal Music and EMI if they didn’t join Eircom in implementing ‘three strikes and you're out’.

Speaking after the judgement was read, Mr Willie Kavanagh, Chairman of IRMA was also implicitly critical of the Government. “We are extremely disappointed that the High Court today has effectively determined that the Irish State has failed to protect the constitutional rights of copyright holders, by failing to implement EU Copyright directives correctly,” he said.

Meanwhile, the Director General of IRMA, Dick Doyle, significantly upped the ante with a threat that the State might ultimately be required to pay compensation to the rights holders.

“The High Court has acknowledged that Irish artists, composers and recording companies are sustaining huge losses and internet providers are profiting from the wholesale theft of music," he said, in a statement. "The Judge made it very clear that an injunction would be morally justified but that the Irish legislature had failed in its obligation to confer on the courts the right to grant such injunctions, unlike other EU states.

"We will now look to the Irish Government to fully vindicate the constitutional rights of Copyright holders and we reserve the right to seek compensation for the past and continuing losses from the State.”

In an official statement, UPC says: "UPC has repeatedly stressed that it does not condone piracy and has always taken a strong stance against illegal activity on its network. It takes all steps required by the law to combat specific infringements, which are brought to its attention and will continue to co-operate with rights holders where they have obtained the necessary court orders for alleged copyright infringements.

"Our whole premise and defence focused on the mere conduit principal which provides that an internet service provider cannot be held liable for content transmitted across its network and today’s decision supports the principle that ISPs are not liable for the actions of internet subscribers.”

How this will impact on the out of court settlement reached last year between the record companies and Eircom, who’ve been sending out up to 50 warning letters a week remains to be seen. The decision of the High Court may yet be appealed to the Supreme Court.