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High Court of Ireland Decisions
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Judgment Title: EMI Records [Ireland] Ltd & Ors -v- UPC Communications Ireland Ltd
Composition of Court:
Judgment by: Charleton J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 377
THE HIGH COURT
2009 5472 P
EMI RECORDS (IRELAND) LIMITED, SONY MUSIC ENTERTAINMENT IRELAND LIMITED, UNIVERSAL MUSIC IRELAND LIMITED,
WARNER MUSIC IRELAND LIMITED AND WEA INTERNATIONAL INCORPORATED
UPC COMMUNICATIONS IRELAND LIMITED
JUDGMENT of Mr. Justice Charleton delivered on the 11th day of October, 2010
1. The plaintiffs, who I will call the recording companies, record and release music and video for sale. They seek injunctions against the defendant, an internet service provider, to prevent the theft of their copyright by third parties illegally downloading it over the internet. The form of injunction sought is left to the discretion of the court. Hence, I will analyse various technical solutions.
2. Those enthused by music and video may legally buy it in a disc format or download it on the internet for a fee. Prices vary, but music in CD format or film captured on DVD can typically cost between €10 and €20 in a shop. A CD will contain up to 80 minutes of music, perhaps 15 tracks, and a DVD can store a 180 minute film. This case is about music. Both music and films are widely available for purchase to one’s home computer over the internet. Because the material is in digital format, in the form of downloadable files, the quality is the same as that on a disc. To download a music track from the internet typically costs under €1 per music track but films are more expensive. All of these digital files are of original creative work. They are, as a matter of law, protected by copyright. Increasingly, as the evidence in this case has demonstrated, such protection has been undermined to the status of an empty formula. The recording companies complain that their entire business has been decimated by piracy on the internet. They claim that a whole generation is growing up, who instead of purchasing recordings in hard format or by legal download, simply access the sites on the internet that enable them to download for free the millions of music tracks that are available illegally worldwide.
3. The defendant, who I will call UPC, sells internet service to about 15% of the Irish market. Its turnover is in the order of €250M per year and the underlying nature of the business is profitable. It employs 800 staff. In its interface with customers it deals with about 35,000 inbound calls per month, of which it answers about 90%. Later in this judgment, I will refer in detail to the fact that a substantial portion of its 150,000 customers, or the children in their teenage and twenties years of these customers, are using the internet service provided by UPC to steal copyright material which is the property of the recording companies. UPC, as the internet service provider, transmits, in digital form, this copyright protected music through its system and into, and out of, the home personal computers that are used for copyright piracy. UPC claims it has no liability in respect of this activity because it is merely a conduit. The recording companies disagree.
4. The recording companies say they are entitled to an injunctive order of the Court requiring UPC to stop this infringing activity from taking place over its network. The recording companies say that UPC is in the best position to do this. The record companies have communicated with UPC not only as to the nature of the problem, but by actually giving it details whereby the infringers of copyright were detected, by the unique IP numbers assigned to their computers, illegally downloading their songs; but that they have been ignored. The recording companies claim that UPC is turning its face aside from this problem while maintaining a front of righteousness by having in place a customer use policy that condemns internet piracy but which it ignores deliberately in order increase its profit. The customer use policy of UPC makes it very clear that the internet service of UPC cannot be used to steal copyright material. This is a matter of contract, and for a breach of this obligation by the customer, UPC can terminate the contract. It never does. It is not so inclined.
5. At the end of their amended statement of claim, the recording companies are specific only to this extent as to what they seek:-
2. Without prejudice to the generality of the foregoing order, an order pursuant to s. 40(4) of the Copyright and Related Rights Act, 2000 that the defendant block or otherwise disable access by its subscribers to the website thePirateBay.org and related domain names, IP addresses and URL’s, as set out in the schedule hereto attached, together with such other domain names, IP addresses and URL’s as may reasonably be notified as related domain names by the plaintiffs’ to the defendant from time to time.”
7. In defending this claim, UPC state that there is no liability in law for acting as a mere conduit for copyright infringement, and that it neither initiated the communication involved in piracy, chose the recipient, altered the information nor condoned the activity. In other words, sections 37, permitting an injunction, and 40(4) of the Copyright and Related Rights Act 2000 (“the Act”), defining liability, do not apply to UPC at all. Even if the legislation mandates an injunction, UPC argues that no injunction should be granted because it would not be just or convenient; specifically that such an injunction would infringe the fundamental rights of internet users as to their privacy, as guaranteed by the European Convention on Human Rights and Fundamental Freedoms, would not be in accordance with the fundamental principles of European law, most particularly, proportionality and that the court would be drawn into the supervision of its own order.
The Nature of the Problem
9. Some telling figures were produced during the course of evidence. Helen Sheehy, the solicitor on behalf of the plaintiffs, initiated three actions against Eircom plc, another internet service provider, with a view to discovering the names of infringers. I will shortly examine that action in detail. For the moment, suffice it to say that the recording companies had used DtecNet, a detection programme described later in this judgment, to uncover the IP addresses of individuals who were persistently infringing their copyright. Only the internet service providers know what IP address was ascribed to what customer on what particular day. In 2005, Ms. Sheehy applied for orders from the High Court so that seventeen individuals who were customers of Eircom, an internet service provider, would be named. In January, 2006 an order was sought in respect of a further forty-nine individuals. Then in June, 2007 a further twenty-three names and addresses were sought. All these three sets of orders were granted. Of the first seventeen individuals, the largest single uploader had 3,078 music files pirated, while the average was 628 files. The numbers increased with the second application. On the third application, the highest single infringer had 37,511 files while the average infringer had taken 8,400 files. It is reasonable to infer, from these figures alone, that even over the short period of two years involved that the problem of piracy through the internet was increasing rapidly.
10. Mr. Dick Doyle, Director General of the Irish Recorded Music Association (“IRMA”) gave evidence which substantially supports the proposition that piracy of recorded music is a severe economic problem. Whereas the recording companies were aware of the issue of illegal downloading through the internet at the time of the enactment of the Copyright and Related Rights Act 2000, which was passed on the 10th July of that year and came into force on the 1st January of the following year, the problem was not then substantial. It is apparent from the action taken by the recording companies, to which I have just referred, from 2005 to 2007, that at an earlier date they had become alarmed by internet policy. Section 40(4) of the Act was first invoked by the recording companies against Eircom plc in aid of seeking some form of injunction against an internet service provider, which required them to block copyright theft, by the issuing of a plenary summons in 2008. Eircom is the largest internet service provider, with over 40% of the national market. I am satisfied that this was the logical place to start. In January 2009, the action against Eircom settled in the course of the hearing before this Court when they agreed to act in cooperation month-by-month on the detection of internet piracy by the recording companies, first warning their customers twice that what they were doing was illegal, and then shutting them off from internet access on a third infringement. Eircom has, as does UPC, an acceptable usage contract with its customers mandating termination for illegal internet use. Eircom takes its customer contract seriously. UPC, as will emerge later, does not unless it can profit from it. In settling the case with Eircom, the recording companies agreed to bring proceedings against the other internet service providers but, as Mr. Doyle told me, and I accept, they would probably have done so anyway.
11. Between 2005 and 2009 the recording companies experienced a reduction of 40% in the Irish market for the legal sale of recorded music. This is equivalent to €64 million in sales. Up to August, 2008 the country was experiencing a decade of growing and heavy consumer spending. The figure is probably, therefore, an underestimate. Mr. Doyle suggests that a large proportion of that decline was due to illegal downloading. Fairly, he states that it is impossible to say that every single illegal download resulted in the loss of a sale, because what is free is often just taken, and perhaps never listened to. The figures produced by Mr. Doyle indicate that the relevant surveys show a loss of between 20% and 30% as a proportion of decline in sales to what is illegally downloaded. In referring to the relevant research, Mr. Doyle posited at about 1:0.42 as to the ratio of unauthorised downloaders per broadband internet line. There are 1,571,000 broadband subscribers in Ireland of which, if the international studies translate, some 675,000 people are likely to be engaged in some form of illegal downloading from time to time. I am satisfied these studies are accurate and apply to Ireland. The average number of files illegally downloaded per month for each of these individuals, international research suggests, was 20.2. The evidence posits the probability that there are around 163.7 million illegally downloaded songs sitting on computers in Ireland waiting for people here, or in other parts of the world, to, in turn, download these songs from them. This represents a loss to the music industry which, if measured at 99c per illegal download speaks for itself. Mr. Doyle posited that the lower 20% ratio might be applied whereby at least €20m in lost sales are being caused to the Irish market by illegal downloads on an annual basis. Similar losses in revenue must also undermine revenue to record shops.
12. The nature of this problem was further described by Willie Kavanagh, the Chairman of EMI Records (Ireland) Limited. His evidence was that the mass illegal availability of sound recordings, made available without authorisation or payment through the internet, has done untold damage to the development of the legitimate music industry and has caused major damage to traditional CD sales and to legal internet sales. While Mr. Kavanagh fairly admitted that CD sales were likely to decline anyway, as legitimate downloads became available on the internet, and that these had increased from a zero base and continued to grow, the views expressed by Mr. Doyle, he said, were well accepted across the industry as to the nature of the decline and the reason for it.
13. Illegal downloading is done with considerable ease. Mr. Kavanagh conducted an exercise, which in his case was legal because he works for the company which holds the copyright, whereby he attempted to illegally download the track “Viva la Vida”, a track produced by the group Coldplay. He went to a well-known site for facilitating music piracy called ‘The Pirate Bay’. First, he installed on his computer at home a peer-to-peer file sharing application called LimeWire. This took a few seconds. This was free and was enabled very swiftly after he became a member of the Gnutella/LimeWire peer-to-peer network. Then, using the relevant software and the same website, he did a search on the internet for the track. A huge number of hosts for the track came up and he downloaded the song onto his computer in a very short time. At one stage in the process a notice appeared as asking him to “respect copyright”. This, he correctly described, tactfully, as a form of hypocrisy. In less than three minutes he had joined the relevant website, downloaded the necessary software, accessed the relevant swarms of computers offering the track illegally, and downloaded the targeted song. Once this is done once, it is quicker the next time and a person is likely to steal again. His written witness statement gives other examples. He also recalled, in evidence, looking for the film “Batman-The Dark Knight”, before it was released in the cinemas and being able to get it illegally, for no payment, on the internet. If the pirated version is filmed covertly in a cinema, it is likely to be of poor quality; once the DVD is available in shops, or perhaps by other means prior to that event, the internet will be full of perfect digital reproductions. The particular track “Viva la Vida” was offered as an example of the losses that the recording companies suffer, and through them, those who have the strongest moral right to copyright, that is the creative artists behind music. The album from which “Viva la Vida” was taken cost around €1 million to make and €10 million to market.
14. This scourge of internet piracy strongly affects Irish musicians, most of whom pay tax in Ireland. ‘Aslan’ is a distinguished Irish group which has a loyal fan base; but not all of them believe in paying for music. Previous sales of their albums were excellent, about 35,000 per album, and in respect of one called “Platinum Collection”, a three CD box set, 50,000 copies were sold. More recently, an album called “Uncased” was released and only 6,000 copies were sold. Perhaps, it might be thought, the album was not popular and did not sell well? In contrast, a search was made to see how many illegal downloads had been made on the internet from that album, and 22,000 were traced.
15. The implications of this are that those involved in creative work will get a substantially, and unfairly, reduced return for the expenditure of their talent in creative work. From the point of view of the recording companies, if there are no profits, and no royalties to artists, the legal sale of recorded music, through the preparation of albums, will cease. As Mr. Kavanagh put it: “If you don’t get a return on an investment and you go down the same road again and invest the same money again and expect a different outcome, the likelihood is we would be reluctant to invest in another album”.
16. The relevant evidence and surveys presented to the Court by Mr. Kavanagh and Mr. Doyle indicates that with the growth of broadband internet rollout, the easy and unimpeded piracy of music will grow. The Court sees no reason why a person, who is not habituated to purchasing recorded music, would not take it for free over the internet. I think that Ireland is broadly comparable to Australia in respect of our internet usage habits. The evidence convinces me that if we are not now at the stage, we are moving towards the situation where teenagers and students have, or will have, an average of many hundreds of illegally copied songs on each of their digital music players. The Australian survey referred to in evidence probably represents the present situation in Ireland; and the even bleaker future for the music industry. As between those who are under 20, and over 25, the proportion of tracks not paid for is likely to be over 60% in the first category, and under 15% for the older category. Time is moving on and more and more young people are embracing internet music piracy. When Mr. Kavanagh told me that he had no reason to believe anything that contradicted this survey, I noted that it might be challenged in cross-examination or rebutted by contrary evidence. This did not happen. Further, another careful international survey indicated that between 49% and 83% of all internet traffic, with a night time peak of 95%, is accounted for by peer-to-peer communications. The time when the internet is most used in this way is at night time. Significantly, UPC shapes its internet traffic so that peer-to-peer and other forms of communication are competing for internet use during business hours, when teenagers and students are less at home, but peer-to-peer downloading and uploading is throttled to around a third during the evening and night.
17. I have carefully observed the evidence given by Ms Sheehy, Mr. Doyle and Mr. Kavanagh. From the point of view of consistency of narrative, demeanour and internal cohesion, I am satisfied to rely on all of their evidence.
19. More widely, however, internet piracy is an economic and a moral problem. Were men to walk into a cinema and in the dark, set up a small tripod for a machine to digitally record the latest movie blockbuster, to use the appropriate colloquial terminology, most right thinking people would be appalled. To entertain themselves and their families at home, they would have to wait three or four months to buy the DVD on its release and spend about €15 to have the film and whatever extras were added on to make it attractive. It is hardly credible that cinema owners would not be aware of this problem taking place. If they did nothing, and allowed people to proceed with illegally capturing the film, the first step would have been taken with their acquiescence in the undermining of copyright. Attendance at the film would plummet, because a group of friends would be drawn into deciding that a cheaper alternative for say five or ten of them, instead of having to spend between €50 and €100 on cinema admission, would be to buy a pirated copy of the film and watch it in the comfort of their home on the now almost ubiquitous flat screen television of large size that graces our home life. If nothing were done about the men, their camera and their tripod, their digital reproduction equipment and their sales, on the release of the DVD of the film, legal purchases would be minimal. Similarly, in the week of commencing writing this, the National Youth Orchestra of Ireland presented a stirring new composition, ‘Summer Overture’ by Shaun Davey, in the National Concert Hall. . Nowadays it is possible to attend a concert and to have CDs of it legally for sale fifteen minutes after conclusion. A person could covertly capture the music on a small digital recorder. If that individual went out to a van in which he had a great deal of digital copying equipment, reproduced it without permission and sold the CDs to those leaving the concert, it would rightly be regarded as flagrant abuse of copyright. I cannot see how an illegal recording on site and the subsequent public or internet offering for free, with no return to the composer or performer for their creativity, is anything other than a scandal. I have no doubt that any responsible cinema owner, or concert hall owner would stop internet piracy, if made aware of it. I am further satisfied that a reasonable person in that position would be vigilant to prevent it in a cinema or in a concert venue. A failure to address those problems, by those who can address the abuse, is not excusable. It constitutes the abuse of the economic interests of the creative community. This kind of theft is shameful. Many who see that activity on the street would shun the commerce of exploiting the rights of artists for no return. Peer pressure would prevent much of it. But the internet allows a dispensation from shame, as internet thieves figure that no one will know what is being done behind the closed doors of internet access. Essentially, that coupled with the failure of internet service providers to act like a responsible cinema or concert venue owner would act, is why the problem is so extreme
20. There is no difference between the public situations I have described and the piracy of music tracks over the internet. It has the same consequence. The conduit for that illegal activity is, however, not the street or the pavement outside a cinema; it is the internet service providers. It is clear that they have an economic and moral obligation to address the problem. I do not accept any of the evidence from UPC, referred to later in this judgment, as to why this has not been done. Instead, the effect on the market place of illegal downloads, through the internet, is to increase the profit levels of internet service providers. Relevant correspondence from within UPC is profoundly disturbing as to the reality of their approach.
21. The evidence establishes that this problem is a massive one. This is an instance where the multiplication on a huge scale of small problems has changed the nature of the issue into a huge pilfering of the resources of creative artists. For each individual person, the number of downloads cannot be regarded as being on a commercial scale. It is the multiplication of the problem through millions of individuals feeling free to use the internet to pirate the copyright of creative artists and recording companies that has created the undermining of that right on a foundational scale.
22. I now need to describe the nature of internet communications in detail, for it is on this detail that the legal authority of the court to grant injunctive relief is circumscribed. In that regard, the nature of the potential solutions to the issue of internet piracy must also be addressed. The interaction of the parties requires also to be examined. The relevant legislation is then analysed.
24. When the cable modem of a UPC connected computer boots up, UPC will verify that the MAC address is assigned to the correct cable modem, it will allocate a temporary IP address for the boot process, it will check on the profile of the service subscribed for in accordance with what the customer has paid for, it will then access the internet and the customer can proceed. The customer will have contracted to use the service in accordance with the Acceptable Usage Policy of UPC. The boot up process includes the collection of log information that records the IP addresses allocated to the customer’s equipment, identified by the MAC address, and the relevant time.
25. UPC employs sophisticated monitoring and management tools. In particular, the bandwidth usage of the customer is monitored. Traffic monitoring, classification, and the enforcement of acceptable usage, is done through Cisco SCE8000 Systems. This performs a classification of the total aggregated traffic.
26. The use which a customer makes of their broadband facility is reported on through the ServAssure Programme that is run at the end of every month. This data refers to MAC addresses, because there is no need to refer to IP addresses in this context, since the MAC address is not movable for this purpose. UPC then manually cross references that data with the customer database whereby account details are determined and checked. The data is then cross referenced to another manual database to determine whether or not the account holder has had previous warnings on an excess use of bandwidth beyond what they have paid for. Following this exercise the account holder, if using excessive bandwidth, will receive either a first or second warning. In practice, as I understand it, once a warning is given, and bandwidth usage does not cease, the customer is billed up a level to the next highest, or above, bandwidth payment structure. The Acceptable Usage Policy, which I will turn to shortly, allows customers to be cut off for using excessive bandwidth. However, I understand from the evidence of Anna Coyle, who is in charge of billing within UPC, that the current policy is to retain valuable customers and to persuade them to move up to a higher bandwidth and pay more money. This is done by warning them and then just billing them at the higher bandwidth. People are not cut off in respect of this, there are simply sent a higher bill. To some extent the evidence is confusing as to whether one or two warnings are given, depending upon the package that the customer has contracted for. The evidence is clear, however, that UPC pursue a policy of retaining customers and requiring them to pay more by reference to the Acceptable Usage Policy whereby if they use more than they have contracted for, they are required to pay in accordance with the level billed. Those who do not pay are cut off. There is no negotiation on this issue.
27. Traffic monitoring, through deep packet inspection, is used by UPC to shape traffic. The current policy is based on a general shaping of peer-to-peer traffic. This uses different levels for upstream and downstream. The shaping is applied to the total aggregated traffic and is not targeted at any individual user. The thresholds are statistically defined and can be changed through input. This shaping is applied to peer-to-peer traffic, to reduce its potential for domination of the network, during peak hours for computer usage which are daily from 17.00 to 24.00. In off peak hours, which coincide in part with business hours, no shaping occurs.
28. The nature of peer-to-peer traffic has been described in evidence in technical terms. I wish to give a brief description here. Professor Paddy Nixon, of University College Dublin, told me that the relevant studies showed an analysis of internet traffic that was 70% peer-to-peer in Eastern Europe and 56% in Western Europe. As to encrypted peer-to-peer traffic, while some reports put that level as well over 25%, the studies referred to in evidence showed it at 20% or just under. Peer-to-peer networks are established using appropriate technologies, such as BitTorrent, whereby each participant becomes both a downloader of material and an uploader. The principles applied in legal peer-to-peer file sharing and illegal peer-to-peer file sharing are the same. A lengthy musical, or other, work would be split up into thousands of digital parcels, each one of which carries an identifying code which indicates that it is a particular track. This can be checked by anyone over the internet through DtecNet whereby identification can be made to the particular IP address that is engaged in the process of uploading/downloading copyright material without permission. Whereas a suggestion was made by counsel during the course of the case, that these file # numbers degrade over time that was not backed up by any evidence. A participant, having downloaded the relevant software for free over the internet, such as eDonkey, or Gnutella, will find out on a site where a particular track is available and then join his computer, through the internet service provider, to a swarm of computers worldwide that has the material available for illegal downloading. Each user will open a file on their computer for this sharing purpose. What they already have is shared, potentially, with every other computer in a swarm, while what every other computer in the swarm has on their corresponding file, is potentially shared with the illegal downloader. What makes peer-to-peer communication useful, in terms of legal applications, is that it markedly increases the swiftness of a download and that the party from whom the download is taking place, does not require the same level of power as if the traffic were all coming from one source. Because the traffic is taken from hundreds or thousands of computers, there are that number of platforms, and their combined power, for hosting the information and for transmitting it through the network to the person who wants the download. Each piece, marked with the relevant # file, is also identified digitally as to the place in which it should sit in the overall work. The computer identifies these pieces and places them in an appropriate order. Thus, instead of the scale of A major arriving as A, C#, E, D, B etc, it will arrive A, B, C#, D, E by reference to the identifying codes. A may arrive from a computer in Kerry, and E may arrive from a computer in Germany, but they will all be assembled on the users computer in the right order so that perfect digital reproduction of the original is attained. This is usually, whether it is illegal or legal, then downloaded onto an iPod, or other portable device. Whereas the computer in Kerry, and the computer in Germany, are outside the UPC network, and may be transmitted from and through several different internet service providers, for the copy to arrive at a UPC broadband subscriber’s computer, it must pass through the UPC network that is the subject matter of this case. For seconds, or for minutes, in digital form, it is on that network before it arrives, unless blocked or diverted, at a UPC subscriber’s computer. During the course of transmission there may be momentary stopping and starting, but the pieces will be sent out in the right order.
Legal and Illegal Peer-to-Peer
30. What I am also satisfied of is that the large majority of the current use of peer-to-peer technology is for the purpose of illegally downloading copyright material. In that regard, I take into account the view expressed by Professor Nixon that the illegal use of peer-to-peer was in a majority; the eventual concession by Anna Coyle and the evidence of Dick Doyle. The studies attached to the relevant witness statements and admitted to evidence by consent bear this out. What cannot be predicted, however, is the level of growth of legal peer-to-peer file sharing and whether lawful use will eventually become the majority. While this technology is certainly used at the present time to account for a large majority of internet piracy of copyright material, trends in the future may mean that it is in a minority.
31. Even if that were not so, it would not be in accordance with the principle of proportionality to use a blunt instrument for the deterrence, or rendering impossible, of illegal activity, when the effect of that would inevitably lead to the infringement on the right of communication through the internet.
32. Another solution proposed, by way of injunctive relief, was to search out the platforms most often used within peer-to-peer sharing protocols for illegal file sharing, to identify them by deep packet inspection, and to severely throttle or block these communications. There are two reasons why this also is not proportionate. Firstly, the relevant software may be designed to use a number of applications. Those involved in copyright piracy, would readily, and swiftly, release new applications for downloads. Illegal users would switch to them readily. Secondly, there is no satisfactory evidence upon which I can rely which indicates to me that a list of protocols, such as eDonkey, gNnutella and LimeWire, are not also used legally. To block these communications would not be proportional. It might have the effect of cutting off a certain amount of illegal peer-to-peer file sharing, but it would also have an effect on the ability of internet users to lawfully communicate with each other.
33. I would reject any solution that is based on any substantial constriction in the communication of material lawfully available on the internet unless the harm is demonstrated to be so grave as to illegal file sharing of copyright material as to render that both necessary and just. It is not so demonstrated, especially as there are viable alternatives. I now consider each of the potential technological responses to internet piracy of copyright that has been described in the evidence in order to supply the detail for these conclusions.
Solution I: Detection
35. There are two potential methods of evading the DtecNet process. The first is by the use of proxy IP addresses. A sophisticated computer technician could hack into another person’s computer, and then request files using peer-to-peer technology. They would be downloaded to the second computer via peer-to-peer technology and, as I understand, then directly download it, bypassing peer-to-peer communications, and therefore DtecNet, back to the original computer user. A second way would involve using another computer as a proxy server. There are some free sites, as I understand the evidence, offering this service. There are, in addition, ways of paying for the hire of another computer so that this process can be engaged in. The figures that I have obtained from Mr. Sehested in evidence indicate to me that the current use of this technology to avoid the ultimate IP address that the user resides on is now around 0.3%. With any solution, there will be a technology battle, whereby this problem may increase, and may need to be addressed. As of the current time I do not regard it as significant.
36. Secondly, peer-to-peer downloaders can use encryption. This is not a problem. An encrypted communication is only of use if the party sending it knows that the party receiving it can decode the message. This is how Mr. Sehested put the matter:-
Solution II: Global File Registry
39. Global File Registry by-passes any response by way of detection, notification, education and termination in favour of immediate interruptions. The advantage of the system is that it offers a legitimate alternative which Mr. Speck described as offering “solid value”. This changes the passive transmission of internet service provider customer’s data into intervention. It can operate as a source of revenue to the internet service provider since arrangements are predicated to be made between the companies offering internet service and the recording companies. Thus, the attempt to illicitly download a music track by peer-to-peer file sharing is immediately interrupted and a diversion is effected to a site, shared by the internet service provider and the music industry, whereby a legal download may be made by payment through a credit card or by an addition to a customer’s bill from its internet service provider.
40. A similar system is operated by police in Australia in relation to about 70,000 child pornography images. These are identified by reference to the file hash, but in that instance the transmission is simply interrupted. I would imagine that this system, which is fully tested and in operation, also involves the gathering of data as to the user for criminal detection purposes, but this was not developed in evidence. That police agenda does not form part of the operation for the disablement of copyright theft.
41. While the system is now partnered with the Cisco Corporation as a joint venture, and while it presents as a viable future alternative, it is yet to be fully tested. It would not be right for the Court to order such a system by way of injunctive relief because its integration and testing will take time. A trial exists with an Australian internet service provider but this trial, the Court notes, is only in respect of 200 musical tracks. To ramp up the trial towards a significant number of tracks, which in an Irish context would certainly run into several thousand, involves moving into an area which is not sufficiently predictable. It is possible, as was established in cross-examination, for persistence to lead a determined customer to an illegal download. It is also possible that the file hash in a very popular music track, that was constantly blocked, could be changed. I am satisfied that this would be an elaborate process. There would be a likely response from the music industry whereby, that would be detected and added, under that new format, to the files to be searched for and detected in the course of illegal transmission.
42. There are obvious advantages to the Global File Registry system. The routes around it are difficult and time consuming. It represents a viable future way of responding to internet copyright piracy. It has no privacy implications. Any aspect of encoding is not demonstrated in the evidence to be different to the obvious solution of uploading the encryption programmes that are widely shared in this mass market. However, this system requires further work in order to operate at the level required. Finally, on this issue, I am not satisfied that in order to markedly decrease the internet piracy of copyright material that it is necessary to upload the entire discography of modern civilisation. Instead, the evidence demonstrates that deterring, through interruption and diversion, the most widely shared musical tracks at a particular time is highly effective. These need only be in the hundreds or thousands of tracks level. In the future, with development, the evidence establishes that this solution to internet piracy is likely to be effective.
Solution III: CopySense
44. Every student who enters the University receives an email which informs them that they are to avoid the violation of copyright through peer-to-peer downloading. Despite this, many students in their first time regularly upload and download music which is subject to copyright. In response to this, the university has a graduated series of sanctions. The implementation of that graduated response is achieved by the use of the CopySense programme produced by Audible Magic. The University evaluated it as most appropriate for its needs because it had a database of six million signatures of copyright works, when it was first chosen, and now has increased that to some eight million tracks. Mr. Benjamin, in his witness statement described how it works:-
46. The level at which this succeeds is less than with a medium size internet service provider, such as UCP, which has 150,000 customers. The university has 49,000 students, with 200 buildings in the Housing Department and with 10,000 Ethernet connections for the students that live in the university. The formal graduated response was described by Mr. Benjamin in this way:-
48. The strong effectiveness of the CopySense solution within the University of Florida is dependent on the high levels of detection that the system displays, the discipline inherent within the university setting and the ultimate sanction of expulsion that may emerge for repeated violations. As I understand Mr. Benjamin, for a modern student to be denied internet access is to place them in a position where they would be left dependent on text books; many lectures are also offered or summarised online. In effect, this will leave the student without vital research resources and result in the termination of their relationship with the university. In consequence, the very good results can be explained by that, but only in part. While I accept that a student group is quite different from an outside internet service provider and its customers, it is also apparent that detection and warning have a salutary effect on those who seek to violate copyright. This solution does not undermine the effectiveness of the network. The first and second stages of the process are automated. Six dedicated staff and some part-timers manage the system. I am satisfied that this is not a severe burden as those employees also manage the telephone system and security monitoring for the housing network.
49. The system can be by-passed by the student returning home and, in the absence of similar general controls through internet service providers in the United States, violating copyright in a private setting. Nonetheless it is clear that the system is enormously effective, it does not impact on the network efficiency, is balanced in its approach by way of a graduated response and has no impact on privacy. To deploy the CopySense solution on an internet service provider, with 150,000 customers, would require testing an appropriate expansion of the system. While detection may not be 100% effective, I accept Mr. Benjamin’s evidence that it captures the bulk of violations. Were there a willingness by UPC to engage with such a system, it could readily be made to work. It is clear why they do not wish to so engage.
The Attitude of UPC
A download speed of 15Mb is suitable for users who regularly download or send large files such as music or movies. This speed also supports online gamers and video calling, which is becoming more and more popular with our customers. An ideal pack for families.”
56. The Court is not to be involved in the grant of injunctive relief in the on-going role of supervision. Instead, were UPC, or any other company, to be willing to pursue internet theft by discouraging it through detection and the interruption of transmission, that would clearly be possible. The evidence establishes this with abundant clarity. UPC have presented evidence that their cooperation with a three strikes and then cut off solution, or a diversion solution, or an interruption solution, would be costly and disproportionately difficult. I can accept none of that evidence. It suffices to say that were these solutions to present as economically attractive, UPC would pursue them. In the dispute between EMI and Eircom, which was settled as previously indicated, a pilot project is underway over three months, with a view to determining the final modalities of the solution. This, the evidence establishes, will not cause excessive expense and will, I am convinced by the evidence put before the Court by Mr. Michael Walsh, be possible and practicable.
57. Further, none of the other solutions would be disproportionately expensive in time or expense. None of the contradicting evidence from UPC establishes in any way that I can accept that any such solution would be disproportionately expensive or burdensome. On the contrary, the basic systems of customer interaction are already in place. The excuses given are empty. In order, however, to grant an injunction, the court must be satisfied that it is just and convenient to impose a particular and specific solution on parties to litigation. An analysis should therefore be conducted as to whether other steps are open to the recording companies. The legal basis of injunctive relief, should no other remedy be legally available, then requires analysis.
Alternatives to an Injunction
59. In Norwich Pharmacal v. Custom and Excise  AC 133, the House of Lords in a different context, established the right of a person who claimed that a civil wrong had been perpetrated to obtain a court order against a party holding information that would enable the identification of the wrongdoer. Thus, for instance, where a car accident takes place, and a proposed plaintiff knows no more than a registration number, were this number not publicly available, or subject somehow to confidentiality, that proposed plaintiff could bring an action against the licensing authority to uncover the name and address of the party alleged to be responsible for the accident, so that an action might be brought.
60. It is established beyond doubt in this jurisdiction that Norwich Pharmacal orders are available in the appropriate circumstances. In EMI v. Eircom Limited  4 IR 148, Kelly J. made a number of orders whereby the plaintiff in that action, who are also the recording company plaintiffs here, compelled Eircom, as an internet service provider to disclose the names of its infringing customers. The plaintiffs made the case successfully that their copyright had been infringed and demonstrated a series of IP addresses of the responsible subscriber. The judgment of Kelly J. declares that where a wrongful activity has been committee by unknown persons, an order may be made requiring a defendant to identify such persons for the purposes of legal action.
61. In the Federal Court of Appeal in Canada case of B.M.G. Canada Inc v. Doe  FCA 193 Sexton J. speaking for the Court, said at paras. 40 to 42:-
Modern technology such as the Internet, has provided extraordinary benefits for society, which include faster and more efficient means of communication to wider audiences. This technology must not be allowed to obliterate those personal property rights which society has deemed important. Although privacy concerns must also be considered, it seems to me that they must yield to public concerns for the protection of intellectual property rights in situations where infringement threatens to erode those rights.
Thus, in my view in cases where plaintiffs show that they have a bona fide claim that unknown persons are infringing their copyright, they have a right to have the identity revealed for the purpose of bringing action. However, caution must be exercised by the courts in ordering such disclosure to make sure that privacy rights are invaded in the most minimal way."
63. The response of the persons contacted by the recording companies’ solicitor in consequence of their names being discovered was described thus by Mr. Sheedy:-
65. This evidence convinces me that there is no just or convenient solution open to the record companies other than seeking injunctive relief against the internet service provider, in this case UPC. It is argued by UPC, that were injunctions to be granted rights of privacy would be infringed and that an injunction would be disproportionate to the menace that internet piracy represents.
67. The right to privacy has been said to encapsulate the ‘right to be left alone’ (per Walsh J. in his dissenting judgment as a judge of the European Court of Human Rights in Dudgeon v. United Kingdom (1981) 4 EHRR 149) or as “the fundamental value of personal autonomy” (per Sedley L.J. in Douglas v. Hello!  1 Q.B. 967 at para. 126) – the right of the individual to exercise control over information, possessions and conduct of a personal nature and, as an obvious corollary, the right to prevent others from accessing this information. On an international level this State is a signatory to various treaties which clearly enumerate the right to privacy. The most important of these is contained in Article 8 of the European Convention on Human Rights which provides, inter alia, that “[e]veryone has the right to respect for his private and family life, his home and his correspondence”. This right to ‘be left alone’ has spawned a considerable amount of data protection legislation, most noticeably at a European level (See, for example, Parliament and Council Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data O.J. L 281 23.11.1995 [“the Data Protection Directive”]) and on a domestic level, principally through the Data Protection Act 1988, as amended.
68. I find it impossible to recognise as a matter of constitutional law, that the protection of the entitlement to be left in the sphere of private communications could ever extend to conversations, emails, letters, phonecalls or any other communication designed to further a criminal enterprise. Criminals leave the private sphere when they infringe the rights of other, or conspire in that respect. Legislative intervention may mean detection involves a statutory infringement: leaving the admission of evidence to be decided on the balance of respect for the law and the seriousness of what is involved. In the case of internet file sharing to infringe copyright, I am of the view that there are no privacy or data protection implications to detecting unauthorised downloads of copyright material using peer-to-peer technology; (see, EMI Records (Ireland) Limited v. Eircom Limited  IEHC 108, (Unreported, High Court, Charleton J., 16th April, 2010). In this regard, I am taking into account the fact that the process of detection through DtecNet is essentially anonymous. As previously emphasised, a communication between the recording companies and an internet service provider, having used the facilities offered by the DtecNet, that in a particular month a certain one hundred subscribers downloaded an average of twenty copyright protected tracks each, illegally, giving a date and time and the IP address, discloses no information publicly. The recording companies do not thereby harvest the names and addresses of infringers of copyright for data purposes, or for future communication or for evidence in a potential criminal case. They get nothing apart from a set of numbers. As between UPC and their customers, any solution to this illegal activity is conducted privately as between them. They already know each other, as they are joined by a contract. That communication is within the range of matters over which an internet service provider is entitled to deal with its customer. The abuse of an internet service for copyright theft is a serious matter from the point of view of the general enforcement of copyright protection. An internet service provider is entitled to have a policy against it. In this instance, it is apparent that UPC pretends to have such a policy. The existence of a genuine anti-piracy policy would enhance the public standing of any corporation and is a matter in respect of which they have an interest. Enforcing a private contract, in this context, does not have privacy implications. Any form of blocking on that customer and internet service provider basis does not carry a privacy implication. If the response is a graduated one, as opposed to a blocking of communications merely on a basis of identifying its nature and the relevant IP number, no privacy implication arises. As Professor Nixon put it:-
Response to Warning
74. By letter dated 13th February 2009, Helen Sheehy, on behalf of the recording companies, made the case that the law obliged UPC to act in the manner similar to the agreement reached with Eircom in January 2009. The parties there contracted for a three stage response to internet piracy. The recording companies were to alert them to infringements through the use of DtecNet on a month-by-month basis. If, in the first month, an infringement was notified in the appropriate format, Eircom were to write to its customers by way of an education policy; as to the possibility of the misuse of a network by an employee, family member or, possibly, someone within the range of their wireless router. On a second infringement, a sterner letter was to be written. On a third infringement, the customer was to be disconnected as to broadband internet access, but not as to telephone and television services received over the internet and not in the case of business customers or those dependent upon the internet for serious medical reasons.
75. By letter dated 27th February 2009 UPC declared:-
77. By letter dated 14th May 2009, Helen Sheehy, on behalf of the recording companies, formally put UPC on notice, that their facilities were being used to infringe copyright in sound recordings owned by the recording companies. In part, the letter reads:-
79. The material enclosed showed first of all a case summary indicating user name, IP address, date of when the user was last online, downloaded files and the internet service provider to whom the relevant IP address was assigned. On the 18th May 2009, UPC replied that the individuals “may or may not be our customers”. That is not an honest answer. It was denied that there was any infringing material on the network and, instead, it was stated that what was involved was merely the provision of “information that our customers may be using our network to access certain allegedly infringing material”. The letter goes on to state that UPC “has no liability for the actions of our customers in this regard as we are a mere conduit.” Section 40(4) of the Act is referred to as “a take down provision designed to address infringing material hosted by facilities providers”.
80. Further information was provided from the UPC solicitor by letter dated 26th May 2009. This time, a file of information as to the use of the UPC network for infringing copyright material was added to the letters.
81. By letter dated 2nd June 2009, the solicitors on behalf of UPC reiterated that their client was a mere conduit and, therefore, not liable to injunctive relief. The letter indicated that there was a right of communication to the public and that injunctive relief was not available under Irish law. In particular they stated that an injunction could not be granted on a non-individualised basis “through an unverified, automated process”. In that regard, the Court would comment that the DtecNet system of infringement has, as is stated elsewhere in this judgment, being demonstrated to be accurate. Further, there was no question put which undermined the reliable nature of that system.
82. On any graduated response to infringement, the letter continued:-
Our client takes the rights of its customers very seriously, including in the areas of data protection and privacy. Our client will of course comply with any court order your client’s may obtain in respect of a particular customer of our client that is held to be infringing our client’s copyright. In addition, in incidents where our client may provide hosting facilities, our client will continue to comply and enforce the applicable notify and take down policy in appropriate circumstances.
Finally, for the avoidance of doubt, our client’s reference to “key stake holders” has been consistent throughout our client’s correspondence and such stake holders were enumerated in particular in our client’s letter to you of 27th February 2009. In spite of our client’s view that it has no liability for the copyright infringement of its customers, if any, for the reasons set out above, our client confirms that it would be prepared to participate in a discussion process with all stake holders on the issue of illegal file sharing which is convened by your clients. We note however, that our client will only participate on the basis that any proposals are consistent with the European Parliament’s proposals set out above and with the general principles that network access should only be disabled in accordance with an order of the Court.”
84. I now turn to the relevant principles for the grant of an injunction and proceed to analyse national law, in the context of our European legal obligations, and contrast the measures in place in Ireland with the legislation in Europe and the United States of America.
Authority of the Court
87. Therefore, the only proper response to this problem is to consider the precise scope of the legislative framework as set out in the Act and whatever aspect of European legislation might legitimately be used as an aid in interpreting national law.
88. I therefore turn to the legislation.
The Right to Copy
(2) Copyright subsists, in accordance with this Act, in
(b) sound recordings, films, broadcasts or cable programmes,
(c) the typographical arrangement of published editions, and
(d) original databases.
(4) Copyright shall not subsist in a work unless the requirements for copyright protection specified in this Part with respect to qualification are complied with.
(5) Copyright shall not subsist in a work which infringes, or to the extent that it infringes, the copyright in another work.
(6) Copyright shall not subsist in a work which is, or to the extent that it is, a copy taken from a work which has been previously made available to the public.”
(b) to make available to the public the work;
(c) to make an adaptation of the work or to undertake either of the acts referred to in paragraph (a) or (b) in relation to an adaptation,
and those acts shall be known and in this Act referred to as “acts restricted by copyright”.
(3) References to the undertaking of an act restricted by the copyright in a work shall relate to the work as a whole or to any substantial part of the work and to whether the act is undertaken directly or indirectly.”
(2) The copyright in a repeat broadcast shall expire at the same time as the copyright in the original broadcast and no copyright shall subsist in a repeat broadcast which is transmitted after the expiration of the copyright in the original broadcast.”
(b) performing, showing or playing a copy of the work in public;
(c) broadcasting a copy of the work;
(d) including a copy of the work in a cable programme service;
(e) issuing copies of the work to the public;
(f) renting copies of the work;
(g) lending copies of the work without the payment of remuneration to the owner of the copyright in the work,
and references to “lawfully making available to the public” shall mean the undertaking of any of the acts referred to in paragraphs (a) to (g) by or with the licence of the copyright owner.”
94. All of these activities require to be facilitated by people other than those who are directly intent on breaching copyright. Equipment is needed for the purpose. The film would require actors and cinematographers before being shown in a cinema; the play would be shown in a theatre; the book would be photocopied on a machine; or printed by a printer; the broadcast would take place through a network; and the pirated copies would be made available through the internet, either from a hosting site, or in the case of peer-to-peer transmissions, from the home computers of many individuals. Providing facilities for this activity is not, of itself, a breach of copyright. Section 40(3) of the Act provides:-
97. Words are not to be presumed superfluous. Rather, I start from the position that effect should be given to all of the words within a section, or subsection, where that is possible. While sometimes, in the way that lawyers offer pleadings in the alternative, such as a claim for breach of duty and a claim for negligence, the Oireachtas might well be drawn into the use of words with a view to emphasising certainty, the ordinary rule as to economy in the use of language should be applied. An ordinary word should be given an ordinary meaning but, at times, I find the use of a dictionary helpful in clarifying an interpretation. The Act contains a number of specialist terms. These are to be given a technical meaning, but are not, beyond the use of the word internet, germane to this decision. I have been assisted in this analysis by the expert re-statement of the relevant rules in David Dodd ‘Statutory Interpretation in Ireland’ (Tottel, Dublin, 2008).
98. Under s. 40(5), the Minister is entitled to prescribe the form of a notice to be given whereby the person who provides facilities to infringe copyright, and fails to remove the infringing material, becomes liable. The draft regulation made by officials of the Minister has been referred to in evidence. I have no regard to it for two reasons. Firstly, it was never brought into law. Secondly, it constitutes only, at most, a guide to the opinion of one individual on the interpretation of the interrelatedness of subs. (1), (3) and (4) of s.40.
99. In the context of the detailed description of peer-to-peer copyright piracy in this judgment, I ask myself the question, whether internet facilities such as those sold by UPC are being used to infringe the copyright in works owned by the recording company. In the present, though intermittent, sense they are. Each time someone downloads a work from other peer-to-peer users, the facilities of UPC are then being used to infringe the copyright owned by the recording company. This is a process that, for the theft of music takes only seconds, or in the case of a film, some minutes. In a digital sense, that material can then be argued to be on the network of UPC. Blocking a customer by removing his internet access ensures that this process does not take place. That would then ensure that the facilities cannot be used for internet piracy. That is not, however, what the subsection says. When, at night, UPC throttle peer-to-peer communications some packets of information as the start of the process are discarded. I am satisfied, on the evidence, that they are later resent. This is relevant, in the context of the interpretation of how the person or company, whose facilities are being used to enable the making available to the public of copies of a work, is required to remove that infringing material. This is made clear in a passage of cross-examination of Professor Nixon, an expert in computer technology who was called on behalf of UPC but who demonstrated independence of mind, and therefore reliability. Notwithstanding the expertise displayed by Mr. Newman for the recording companies in cross-examination, and the advocacy involved in leading the professor towards a particular point of view, the Court is obliged to construe its overall effect fairly. The passage is as follows:-
A. Discarded, removed.
Q. Yes. So does that not suggest then the idea of removal means a little bit of more than the removal from that server?
A. No, you see I don’t think it does because the purpose of the discarding of the packets is to change the behaviour of the communication in the case of [deep packet inspection] and throttling and such like. So it is not removing the communication, it is not removing the information that leaves one end and arrives at the other end, it is affecting the overall performance of the communication. If you want to remove the file, you have to remove it at source.
Q. Well when, for instance, the [deep packet inspection appliance] removes an individual packet, it is not removing it from a server, is it?
A. No, it is stopping that piece of data transiting the network. That small component part of it.
Q. So your understanding of removal seems to be very much shaped around the idea of whether it is managing to remove the entire communication or not?
A. The question that was posed is; can you remove a file?
A. Can you remove a piece of work? Can you remove an artefact? To do that you need to remove it from the machines that it exists on. We have already established that certainly you stop a communication, but the files still exist on the machines that it existed on before the communication.
Q. For instance, if a file is being transmitted through a network, I suppose perhaps put it this way, if a subscriber’s computer is being regularly used, or perhaps continually used for resending infringing material over the UPC network, and then the subscriber stops sending that material over the network, perhaps because they have received a warning or otherwise, then is it not correct that that infringing material, it is removed from the network?
A. Yeah, I mean if it is removed by someone going there or by the individual stopping, it is still removed.”
7. However, it is apparent from the documents before the Court that the national court seeks in substance to ascertain whether a national court hearing a case which falls within the scope of Directive 68/151 is required to interpret its national law in the light of the wording and the purpose of that directive in order to preclude a declaration of nullity of a public limited company on a ground other than those listed in Article 11 of the directive.
8. In order to reply to that question, it should be observed that, as the Court pointed out in its judgment in Case 14/83 Von Colson and Kamann v. Land Nordrhein-Westfalen  ECR 1891, paragraph 26, the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.
9. It follows that the requirement that national law must be interpreted in conformity with Article 11 of Directive 68/151 precludes the interpretation of provisions of national law relating to public limited companies in such a manner that the nullity of a public limited company may be ordered on grounds other than those exhaustively listed in Article 11 of the directive in question.”
112. That is a fortiori the case when the national court is seized of a dispute concerning the application of domestic provisions which, as here, have been specifically enacted for the purpose of transposing a directive intended to confer rights on individuals. The national court must, in the light of the third paragraph of Article 249 EC, presume that the Member State, following its exercise of the discretion afforded it under that provision, had the intention of fulfilling entirely the obligations arising from the directive concerned (see Case C 334/92 Wagner Miret  ECR I-6911, paragraph 20).
113. Thus, when it applies domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, the national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 249 EC (see to that effect, inter alia, the judgments cited above in Von Colson and Kamann , paragraph 26; Marleasing , paragraph 8, and Faccini Dori , paragraph 26; see also Case C 63/97 BMW  ECR I 905, paragraph 22; Joined Cases C 240/98 to C 244/98 Océano Grupo Editorial and Salvat Editores  ECR I-4941, paragraph 30; and Case C 408/01 Adidas-Salomon and Adidas Benelux  ECR I-0000, paragraph 21).”
106. European Parliament and Council Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on Electronic Commerce), O.J. L178/1 17.7.2000 (“the E-Commerce Directive”) provides defences to internet service providers who transmit copyright material. These defences arise when an internet service provider establishes that they are a mere conduit, or merely hosting information, as in an internet site, or are caching information, or websites, for instance in order to enable more ready access to popular search targets. The first of these defences is set out in Article 12 of the Directive as to "mere conduit"
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information contained in the transmission.
3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement.
(b) the provider complies with conditions on access to the information;
(c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;
(d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and
(e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.
(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.
108. I am satisfied that UPC is a mere conduit. It did not initiate any peer-to-peer transmission, whereby copyright material is stolen; the peer-to-peer swarms select who is to receive the transmission; and, in the course of transmission, the information is not selected or modified. Whereas I respect the opinion offered on this section by Mr. Michael Walsh, on behalf of UPC and regard him as a genuine expert of independent mind, I prefer Professor Nixon’s opinion. There is no modification of information in these transmissions that is effected by UPC. Instead, the technical processes involved in stop and start, in terms of ordering the packets of information and their transmission, and their analysis by deep package inspection is not the modification or selection of any information. Tacking on an advertisement to a transmission, or modifying it so that some of it is lost, as opposed to being transmitted slowly, would disable the mere conduit defence.
109. The Article does not affect the possibility for a court to require an internet provide to “terminate” or “prevent” an infringement. This language is in marked contrast to s. 40(4) of the Copyright and Related Rights Acts 2000 which refers to the “removal of infringing material”. At the start of the Directive, various recitals referred to the objectives to be attained by the Directive. These include, in recital 9, free access to information, in recital 41, balance, and in recital 46 the disabling of access to the information concerned. Recitals 42, 43, 44 and 45 confirm the view which I have given. These provide:-
(43) A service provider can benefit from the exemptions for "mere conduit" and for "caching" when he is in no way involved with the information transmitted; this requires among other things that he does not modify the information that he transmits; this requirement does not cover manipulations of a technical nature which take place in the course of the transmission as they do not alter the integrity of the information contained in the transmission.
(44) A service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of "mere conduit" or "caching" and as a result cannot benefit from the liability exemptions established for these activities.
(45) The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it.”
111. The Copyright Directive does not bring the matter further. Article 2 of the directive is mirrored in national legislation in providing for reproduction rights to be vested in the creator of original work, or in the person licensed in that regard. Exceptions and limitations are set out in Article 5, including the scholar’s exception, quotations for the purpose of criticism or review, and reproductions, such as music score reproductions, where the right holders receive fair compensation. Recital 16 declares the purpose of the Directive, in part to be:-
113. Recital 59 contains a declaration that, in the light of the evidence in this case, can be seen as a truism:-
1. Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable:
(b) a lawful use of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2.
(b) in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned;
(c) in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage;
(d) in respect of ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts; the preservation of these recordings in official archives may, on the grounds of their exceptional documentary character, be permitted;
(e) in respect of reproductions of broadcasts made by social institutions pursuing non-commercial purposes, such as hospitals or prisons, on condition that the rightholders receive fair compensation.
(b) uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability;
(c) reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject-matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author's name, is indicated, or use of works or other subject-matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author's name, is indicated, unless this turns out to be impossible;
(d) quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;
(e) use for the purposes of public security or to ensure the proper performance or reporting of administrative, parliamentary or judicial proceedings;
(f) use of political speeches as well as extracts of public lectures or similar works or subject-matter to the extent justified by the informatory purpose and provided that the source, including the author's name, is indicated, except where this turns out to be impossible;
(g) use during religious celebrations or official celebrations organised by a public authority;
(h) use of works, such as works of architecture or sculpture, made to be located permanently in public places;
(i) incidental inclusion of a work or other subject-matter in other material;
(j) use for the purpose of advertising the public exhibition or sale of artistic works, to the extent necessary to promote the event, excluding any other commercial use;
(k) use for the purpose of caricature, parody or pastiche;
(l) use in connection with the demonstration or repair of equipment;
(m) use of an artistic work in the form of a building or a drawing or plan of a building for the purposes of reconstructing the building;
(n) use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections;
(o) use in certain other cases of minor importance where exceptions or limitations already exist under national law, provided that they only concern analogue uses and do not affect the free circulation of goods and services within the Community, without prejudice to the other exceptions and limitations contained in this Article.
5. The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.”
2. Each Member State shall take the measures necessary to ensure that rightholders whose interests are affected by an infringing activity carried out on its territory can bring an action for damages and/or apply for an injunction and, where appropriate, for the seizure of infringing material as well as of devices, products or components referred to in Article 6(2).
3. Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.”
117. Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) regulates the modalities of approach. The Court notes that Article 1 of the 2002 Directive is altered by Article 1 of 2009 Framework Directive requiring due process and a judicial hearing before internet access is terminated. This directive must be transposed into Irish law, under Article 5, by the 26th May 2011. As of the present time, Article 8.4 provides:-
(b) ensuring a high level of protection for consumers in their dealings with suppliers, in particular by ensuring the availability of simple and inexpensive dispute resolution procedures carried out by a body that is independent of the parties involved;
(c) contributing to ensuring a high level of protection of personal data and privacy;
(d) promoting the provision of clear information, in particular requiring transparency of tariffs and conditions for using publicly available electronic communications services;
(e) addressing the needs of specific social groups, in particular disabled users; and
(f) ensuring that the integrity and security of public communications networks are maintained.”
2. This Directive as well as the Specific Directives are without prejudice to the obligations imposed by national law in accordance with Community law or by Community law in respect of services provided using electronic communications networks and services.
3. This Directive as well as the Specific Directives are without prejudice to measures taken at Community or national level, in compliance with Community law, to pursue general interest objectives, in particular relating to content regulation and audio-visual policy.
3a. Measures taken by Member States regarding end-users access to, or use of, service and applications through electronic communications networks shall resepct the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.
National Measures in Other States
(b) a subscriber to an internet access service has allowed another person to use the service, and that other person has infringed the owner’s copyright by means of the service.
(3) A "copyright infringement report" is a report that
(b) includes a description of the apparent infringement;
(c) includes evidence of the apparent infringement that shows the subscriber´s IP address and the time at which the evidence was gathered;
(d) is sent to the internet service provider within the period of 1 month beginning with the day on which the evidence was gathered; and
(e) complies with any other requirement of the initial obligations code.
(5) A notification under subsection (4) must be sent to the subscriber within the period of 1 month.”
(b) take steps to prepare for the obligations;
(c) provide a report on the assessment or steps to the Secretary of State.
(3) A "technical measure" is a measure that
(b) prevents a subscriber from using the service to gain access to particular material, or limits such use;
(c) suspends the service provided to a subscriber; or
(d) limits the service provided to a subscriber in another way.
(5) The assessment and steps that the Secretary of State may direct OFCOM to carry out or take under subsection (1) include, in particular–
(b) an assessment of the likely efficacy of a technical measure in relation to a particular type of internet access service; and
(c) steps to prepare a proposed technical obligations code.
(7) The Secretary of State must lay before Parliament any direction under this section.
(8) OFCOM must publish every report under this section–
(b) in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.
(2) "Blocking injunction" means an injunction that requires a service provider to prevent its service being used to gain access to the location.
(3) The Secretary of State may not make regulations under this section unless satisfied that
(b) making the regulations is a proportionate way to address that effect, and
(c) making the regulations would not prejudice national security or the prevention or detection of crime.
(b) a location at which a substantial amount of material has been, is being or is likely to be made available in infringement of copyright, or
(c) a location which has been, is being or is likely to be used to facilitate access to a location within paragraph (a) or (b).
(b) any evidence presented of steps taken by the copyright owner, or by a licensee of copyright in the qualifying material, to facilitate lawful access to the qualifying material,
(c) any representations made by a Minister of the Crown,
(d) whether the injunction would be likely to have a disproportionate effect on any person´s legitimate interests, and
(e) the importance of freedom of expression.
(b) operators of the location.
(b) provide that notice of an application for an injunction may be given to operators of a location by being published in accordance with the regulations,
(c) provide that a court may not make an order for costs against the service provider,
(d) make different provision for different purposes, and
(e) make incidental, supplementary, consequential, transitional, transitory or saving provision.
(b) make consequential provision modifying Acts and subordinate legislation.
(10) Regulations under this section must be made by statutory instrument.
(11) A statutory instrument containing regulations under this section may not be made unless–
(b) a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
• "Minister of the Crown" has the same meaning as in the Ministers of the Crown Act 1975;
• "modify" includes amend, repeal or revoke;
• "operator", in relation to a location on the internet, means a person who has editorial control over material available at the location;
• "qualifying material", in relation to an injunction, means the material taken into account by the court for the purposes of provision made under subsection (4);
• "service provider" has the same meaning as in section 97A of the Copyright, Designs and Patents Act 1988;
• "subordinate legislation" has the same meaning as in the Interpretation Act 1978.
• “injunction" means interdict.”
123. The law specifically targets peer-to-peer file sharing, the undisputed focal point for illegal activity. The United Kingdom definitions seem to be more comprehensive and the law in that jurisdiction to be practical and workable.
124. In Belgium in 2004, in the case of Scarlet v. Sabam the Belgian Society of Authors, Composers and Publishers (Sabam) initiated legal proceedings against the ISP Scarlet (originally Tiscali, Belgium), before the Belgian national Court of First Instance in Brussels, arguing that Scarlet should be held responsible for the illegal file-sharing activities of its subscribers conducted over its network. In 2007 the Belgian national Court of First Instance held that Scarlet was liable for copyright infringement and required it to take certain steps to prevent its customers from illegally downloading copyright-protected music by installing software to filter and block peer-to-peer files. Of particular relevance is the fact that the Court accepted the expert evidence and was satisfied that the necessary technology existed to effectively detect and filter infringing materials.
125. On appeal the Belgian Court of Appeal referred the following questions to the European Court of Justice:
b. if so, are national courts required to apply the principle of proportionality when asked to rule over the efficacy and dissuasive effect of the requested measure?
127. In addition to the judicial remedies sought by Sabam, the Belgian legislature has recognised the need for reform in this area. Two pieces of legislation are currently being debated by the Belgian legislature. The first, introduced on 17 March 2010, proposes a graduated response approach, similar to the HADOPI law as enacted in France. Although based around the same principles – if you fail to comply following a series of warnings you may have your internet access suspended or even terminated – there are differences between the two.
128. The proposed Belgian law offers subscribers three opportunities to respond to rights holders before they risk the loss of their internet access. The process starts with a warning by e-mail. If this fails to deter the user an administrative fine is imposed. Following these two warnings if the user is determined to flagrantly ignore copyright law the user must attend court where a larger fine, or even restrictions on his or her internet access may be imposed. It is only when all of the above steps have failed that the most serious sanction – the termination of an internet account – can be imposed at the direction of a court. Both the proposed Belgian law and the current French law can be argued to comply with Article 1 of the Directive 2002/EC/EC as amended by Framework Directive 2009/140/EC. Article 1 sets out that the termination of an end-user’s internet access (or any limitations imposed upon it) must be done following the resolution of a hearing that adheres to fair procedures as required by the European Convention on Human Rights. There seems to be no reason why the District Court in Ireland could not administer inexpensively either such a system or a system of application for information based on proof of IP addresses and infringement, for the purpose of future prosecution by the recording companies.
Injunction to Disable Internet Piracy
132. It follows, from the analysis just conducted, that blocking and diverting mechanisms, as opposed to any removal mechanism, such as in relation to hosting are not available under s. 40(4) of the Act.
Pirate Bay Injunction
134. Were it available, I would grant it. Mr. Harrison, in evidence on behalf of UPC indicated, how, through Eircom, when that access was blocked, he readily found a way through. However, this took him twenty minutes. Professor Nixon offered the opinion that such blocking was futile. I do not agree. In the telecommunications industry it has been noted that where an area moves from access to other areas, such as the Aran Islands to Dublin, or the Aran Islands to New York, by dialling the operator, to direct dial, that the improvement in service causes a leap in usage. This is known as the service improvement jump. It must work in the opposite situation. I would regard it as both educative and helpful to block Pirate Bay were I enabled by the relevant legislation to do so. At the very least, it declares that the activity is illegal. I cannot grant the injunction because I have no legal power to do so.
136. A different conclusion arises in relation to the earlier judgment of the Court in EMI (Ireland) Limited v. Eircom Plc  IEHC 411 (Unreported, High Court, Charleton J., 24th July, 2009). That judgment was, as the first paragraph of it indicates, delivered ex-tempore, having heard, as I said, only one side of the case. In settling the litigation just mentioned, EMI and Eircom, it was agreed by the parties that an application would be brought to block access to ‘The Pirate Bay’ website on the facilities of Eircom, as an internet service provider. The conclusion I reached in that judgment, that I was entitled as a matter of law, to block access to that site, was arrived at in the absence of argument to the contrary by Eircom. While Eircom did not consent to the judgment, at the same time, they appeared in court and offered no argument against the analysis in favour of the grant of an injunction: this position of not arguing against the injunction, I understand, was part of the terms of the settlement between those parties. Counsel for Eircom was thus constrained into offering no opposition to the argument.
137. Having fully considered the issue of blocking a site as variant as The Pirate Bay, I regret that my previous judgment in the matter was wrong. The legislative basis enabling me to act in that way does not exist in Irish law as it exists in other European jurisdictions. The parties to that case may wish to reapply, or they may be content that The Pirate Bay should be blocked through the channels of Eircom. No order as to costs was made in that case, as the application was uncontested and costs were not sought as a matter of consent.
139. The Court thus declines injunctive relief.