Record Companies Settlement with Internet Service Providers Approved by High Court
The much publicised pursuit of so-called online “peer to peer” music sharing by industry giants such as EMI, Sony, Universal and Warner has been one of the most fascinating stories of the internet’s short history. In recent years, record companies, struggling to effectively reel in the copyright infringers engaged in the file sharing , took their struggle to the internet service providers (“ISPs”). The Irish subsidiaries of EMI, Sony, Universal and Warner reached settlement in their proceedings with Eircom Limited (as an internet service provider) in 2009. Under the terms of settlement, a novel approach was proposed; Eircom Limited agreed to operate a “three strikes” system whereby persistent infringement would escalate to the ultimate sanction of disconnecting the broadband access of a user engaged in copyright infringement through peer to peer music sharing. The plaintiff record companies in turn agreed to initiate mirror legal proceedings against other ISPs in the Irish market in order that Eircom Limited’s implementation of the system would not lead to an exodus of its customer base to competitors adopting a more passive role in the pursuit of peer to peer copyright infringers.
The settlement raised questions of Data Protection Law which Justice Charleton of the High Court addressed in his ruling of the 16th April 2010. Importantly, a broadband user’s internet protocol or “IP” address (broadly speaking, a unique identifier for a computer) was deemed not to be “personal data” within the meaning of the Data Protection Acts 1988-2003 with the result that, it is permissible for record companies to harvest information about copyright infringement by reference to an IP address (i.e. without reference to the infringer’s actual identity). Eircom Limited, as internet service provider, is able to link the IP address (supplied by the record company) to a broadband subscriber with whom it has a contractual relationship. Peer to peer music sharing, as an infringement of copyright, represents a breach of most internet service providers’ usage policies (including Eircom’s), thus entitling it to terminate the broadband user’s subscription at the concluding stage of the “three strikes” process.
With internet service providers now taking an active part in the pursuit of “peer to peer” copyright infringers, it appears the music industry giants have taken their most significant step in this long running saga to date.