Irish High Court: voluntary graduated response is allowed

The high judge in Ireland has ruled that ISPs are allowed to adopt a graduated response policy towards file sharing clients. The Data Protection Commissioner objected and put the matter to the High Court for a legal check.

In April 2008, Ireland’s largest ISP, Eircom, was approached by IRMA, the Irish Recorded Music Association. IRMA requested that Eircom participated in IRMA’s goal of tackling file sharing amongst Eircom’s clients. Eircom initially refused. It argued that it had no legal obligation to check the traffic of it’s network. But as IRMA took the matter to court, Eircom turned around and the two organisations agreed on a modus operandi. Eircom introduced a three strikes policy to counter piracy on IRMA’s behalf.

Ireland’s High Court has now decided that such a construction is in fact legal, as long as IRMA also involves other ISPs. Otherwise, the judge ruled, Eircom’s competitors would have unfair advantage in the market.

In his ruling, judge Peter Charleston wrote: “Copyright is a universal entitlement”. He emphasised the importance of enforcing copyright in order to ensure that artists have a fair shot at making a living.

With this construction, file sharing and its sanctions, account suspension in the worst case, are kept outside of the criminal code. That means that no court needs to oversee carrying out the arrangement. Instead of judicial intervention, file sharing now has become a breach of contract between the ISP and its clients. A breach that, in the most serious case, can lead to suspending the file-sharer’s account.

23 April 2010