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On 11 October 2010, Mr. Justice Peter Charleton of the Irish High Court gave judgment in EMI and Others v. UPC , rejecting music industry claims that broadband provider UPC was responsible under Irish law for policing their users and preventing copyright infringement by them.

In this case, EMI, Sony, Universal, Warner and WEA sought an injunction which would require UPC to introduce a three strikes system and to block users' access to The Pirate Bay. This followed the music industry's success in an earlier case against Eircom (Ireland's largest ISP). In that case, Eircom settled and agreed to establish a three strikes system and not to oppose the application to court to block access to The Pirate Bay. In two subsequent decisions arising from that settlement, Charleton J. held that (a) the court had the power to order Eircom to block access to particular sites and (b) that the three strikes system which was agreed between Eircom and the music industry did not conflict with data protection law.

Unlike Eircom, however, UPC fought the music industry action, leading for the first time in the Irish courts to a full, contested hearing on the obligations of internet service providers in relation to filesharing.

In a lengthy judgment, Charleton J. found that UPC users were engaged in extensive illegal downloading and uploading. He found that it would be possible for UPC to effectively reduce this by making use of systems such as CopySense peer to peer filtering or the detection and disconnection of users who are making available infringing copies, and made a specific finding that such systems would be accurate, practicable and not disproportionately expensive or burdensome. He found that other remedies available to the music industry, in particular identifying infringing users and bringing action against them, were inadequate. He also found that no privacy interest was implicated by the monitoring which these systems would entail.

Charleton J. also held that the blocking of The Pirate Bay would be "both educative and helpful", rejecting expert testimony that blocking would be easily evaded and futile.

Notwithstanding these findings, however, Charleton J. held that, under the Irish law, the court did not have the authority to grant an injunction requiring an ISP to introduce such systems or to block access to particular sites. The relevant Irish law was identified as section 40(4) of the Copyright and Related Rights Act 2000, which provides that:

"where a person who provides facilities [to make a work available to the public] is notified by the owner of the copyright in the work concerned that those facilities are being used to infringe the copyright in that work and that person fails to remove that infringing material as soon as practicable thereafter that person shall also be liable for the infringement."

The court found that this section, referring to the removal of infringing material, primarily envisaged situations where a defendant hosted material rather than simply permitted transit of material. Consequently, it could not be used to justify the grant of an injunction in relation to transit, and Charleton J. acknowledged that his earlier decision ordering Eircom to block access to The Pirate Bay was incorrect.

Charleton J. went on to consider the effect of the European law and in particular the E-Commerce Directive and the Copyright Directive. He found that Article 15 of the E-Commerce Directive (prohibiting a general obligation to monitor) was irrelevant, holding that the use of deep packet inspection:

"is not the seeking of information which is in the course of transmission. Instead, it identifies the nature of transmissions, whether encrypted or otherwise, by reference to the ports which they use, and the protocol employed, so as to identify peer-to-peer communication. UPC does this already for legitimate commercial purposes related to the management of transmissions. If it suited, they could also easily identify the file # of copyright works and block them or divert the search in aid of theft to a legal site. This is not a general search for information."

He also held that UPC was a mere conduit for the purposes of the E-Commerce Directive, but that this, nevertheless, left open the possibility for a court to require an internet provider to terminate or prevent an infringement, and went on to hold that the Copyright Directive required Member States to introduce laws which would provide for these remedies. Consequently, as the Irish law did not provide for these remedies Charleton J. found that Ireland "is not yet fully in compliance with its obligations under European law".

Following this judgment, and in particular its finding that Irish law has failed to correctly implement the Copyright Directive, it is likely that the issue of filesharing will be high on the political agenda in Ireland. Representatives of the music industry have already called for legislative intervention, and have also threatened to sue the Irish state for losses caused by failure to tackle filesharing.

Against this, however, the judgment can be criticised on a number of fronts. Concern has been expressed about the figures relied on by the judge for the extent of piracy, which have been described as inflated. The confident description of deep packet inspection as not involving a "general duty to monitor" is also unusual in light of the preliminary reference to the European Court of Justice in SABAM v. Scarlet (Tiscali) in which this would seem to be a live issue. Similarly, the claim that no privacy issues are involved in three strikes and blocking systems seems to be undermined by the fact that the Data Protection Commissioner took no part in these proceedings so that an important viewpoint went unrepresented, and also fails to take account of developments elsewhere (such as Switzerland) where opposite conclusions have been reached.

It is also unclear where this leaves the three strikes and blocking systems which Eircom has already introduced. To date there has been no indication from Eircom as to whether it intends to continue with these systems despite the ruling, and despite the competitive disadvantage which it would appear to impose on it.

EMI v. UPC (Unreported, High Court, 11.10.2010)
http://www.scribd.com/doc/39104491/EMI-v-UPC

John Collins and Ronan McGreevy, "Music labels to rethink fight against piracy" (12.10.2010)
http://www.irishtimes.com/newspaper/frontpage/2010/1012/1224280879811....

Ronan McGreevy, "U2 manager criticises UPC defence", Irish Times (14.10.2010)
http://www.irishtimes.com/newspaper/breaking/2010/1014/breaking52.html

Justin Mason, "Aslan's hard times, from the UPC judgment", taint.org (11.10.2010)
http://taint.org/2010/10/11/231501a.html

Rossa McMahon, "Strike 1?", A Clatter of the Law (13.10.2010)
http://aclatterofthelaw.com/2010/10/13/strike-one/

(Contribution by TJ McIntyre - EDRi-member Digital Rights Ireland)