Why be creative if you can be a mere conduit?

"Music labels lose downloads case" is the title of an article in today's Irish Times which has been thoughtfully sent to the IPKat by his Irish friend Gemma O'Farrell.  The story is a sequel to the efforts made in Ireland to get a "three strikes" policy up and running in the Emerald Isle in respect of unauthorised copying and file-sharing by internet users. Big-name recording companies Warner Music, Universal Music, Sony BMG and EMI Records brought an action in which they sought to have unauthorised internet copyists identified and then cut off, but in today's High Court judgment Mr Justice Peter Charleton held that there was no legal basis for such relief in Ireland.

According to the press report, the judge agreed that online infringement not only undermined the recording companies' business but "ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living. It is destructive of an important native industry". However, there were no laws in place in Ireland to enforce disconnections over illegal downloads despite the record companies’ complaints being merited. He also said this gap in legislation meant Ireland was not complying with European law.

Meanwhile defendant internet service provider UPC predictably said it would work to identify and address the main areas of concern in the file-sharing debate, doing everything it could, short of actually being helpful:

"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 principle 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".

It is not yet known what effect this decision will have on ISP Eircom's agreement with record labels, which it settled on out of court last year. Meanwhile the recording companies have consoled themselves with the small solace that for once they are characterised as occupying the moral high ground.

The IPKat can't help feeling sorry for the recording companies and for those whose employment and well-being depends on them, but the technology that facilitates illicit downloads and file-sharing is now available and isn't going to disappear.  New business models for investing in and promoting recordings aren't going to magic themselves into existence, and a public that has become addicted to free access to whatever it wants on the internet isn't willingly going to pay. The old order is dead, but the shape of the new order has yet to crystallise.  Meanwhile, it looks as if it's better to be a conduit than a creator.

Merpel wonders why the full text of this decision is not yet available on BAILII, and indeed why there have been no Irish High Court cases posted on BAILII since August.

STOP PRESS: First Irish Three Strikes decision

The IPKat thanks his friend Deirdre Kilroy (LK Shields) for telling him that the first Irish High Court decision on the Republic's "three strikes" law has just been handed down today by Mr Justice Charleton in EMI Records (Ireland) Ltd and others v Eircom Ltd [2010] IEHC 108. You can read the decision in full here -- which is more than this Kat has done, since he is just in the act of winding down for a day off.

Loi Hadopi falls at the last hurdle

Fresh from Guardian online is news that the controversial French loi Hadopi (the "three strikes and you're out" approach to dealing with unlawful file-sharers and internet-enabled copyright infringers) has been struck down by the Constitutional Council as being unconstitutional. According to Richard Wray ("French anti-filesharing law overturned"):

"The French judiciary has ridden to the rescue of the country's web users, striking down a controversial new law which would have allowed the state to cut off the internet connections of illegal filesharers for up to a year.

The ruling is a blow to French president Nicolas Sarkozy, who had characterised the so-called "three strikes" law as a crucial weapon in the fight against online piracy. ... France's constitutional council ruled today that "free access" to online communications services is a human right and cannot be withheld without a judge's intervention. The council also ruled that the method of policing the web envisaged in the law breaches a citizen's right to privacy.

... Under the French law, which was passed last month after initial resistance from politicians, persistent illegal filesharers were to be warned by email and then letter that they should stop sharing copyrighted material. If they continued, their internet connection could be cut off for up to a year.

... The French ruling, which comes after the country's Socialist party asked the council to look at the legality of the Hadopi law, is unlikely to have a direct impact on the legality of any UK moves to combat piracy by using technical measures because it is based on a reading of the French constitution, rather than EU law".

The IPKat suspects that this will not be an end to the matter, and awaits further developments (possibly from the European Commission in Brussels) with interest.

See also note and further materials here