thoughts and observations of a privacy, security and internet researcher, activist, and policy advisor

Thursday, January 29, 2009

Ireland: Copyright Filtering Case Settles out of Court

Over the last few years, the European music industry has tried to establish a secondary liability for ISPs whose customers share copyrighted material. The aim was to pressure ISPs into setting up filtering technology a.k.a. "censorware". What looked like a first quick success was the case in Belgium, where the music industry association (SABAM) demanded that ISP Scarlet (Tiscali) installs a filtering technology that would detect and block copyrighted material. The injunction from June 2007 in fact established exactly that obligation. After this initial success, the music industry moved on to Ireland in 2008 and sued its largest ISP, Eircom. EMI, Sony, Warner and Universal sought an injunction from the Dublin High Court which would have required Eircom to establish the same filtering system.

But in late 2008, the Belgian case turned out different than expected. ISP Scarlet convincingly demonstrated to the court that the technology suggested by SABAM as well as in Ireland (Audible Magic) - did not work and that the music industry even had deceived the court by falsely claiming it had already been used elsewhere. Therefore, the trial court in Belgium lifted the injunction against Scarlet. An interesting problem for the music industry in Ireland, right?

Now, just two weeks into the proceedings of the Irish case, the law suit has settled out of court, as the London Internet Exchange reports:
The parties have agreed that the music industry will hire (or continue to hire) Dtecnet, a investigation company that identifies copyright infringers by participating in P2P file-sharing networks. Eircom will then operate a three-strikes policy, the details of which is yet to be agreed.

Given the damage that would be caused by a filtering imposition, and despite ISPs’ understandable reluctance to adopt three-strikes policies, this can be seen as a significant victory for the ISP industry. However it does leave us without the court judgement (and legal precedent) that we all looked forward to with such interest.

As an aside, the case settled at the conclusion of the Plaintiff’s (EMI’s) case, before the Defense (Eircom) introduced their own witnesses.

The reason for the settlement is obvious: They wanted to avoid a precedent.

In essence, this means: Automatic filtering does not work, suing customers does not work (this was the reason the music industry tried to use the ISPs in the first place), and the only hope the content industry has left is the "three-strikes" policy currently under heavy discussion in the EU Telecom Package. I guess the latter will also be dead by the summer, considering the significant uproar and opposition these proposals sparked last year, and having the upcoming elections to the European Parliament in mind.

(via Monica Horten from Iptegrity, who provides the best coverage of the Telecom Package and related issues anyway)

Update: TJ McIntyre from Dublin has more details and analysis.


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