UPC Communications Ireland Limited has succeeded in its opposition of the “three strikes” rule being imposed by Warner Music, Universal Music, Sony BMG and EMI Records which sought to thwart illegal downloading and file sharing via the Internet.

It is understood that the “three strikes” rule would commence with the record labels notifying UPC of the alleged infringement.  The next step would be that UPC notify the alleged offender that there was believed to be copyright infringement.  If there were to be a second infringement, UPC would then write to the infringing party warning that if the infringement continued, internet access would be disconnected.  On the third notification of infringement to UPC, the subscriber’s internet access was liable to be terminated.

Mr Justice Peter Charleton was cognisant of the financial harm being suffered by record labels due to illegal downloading.  He stated that “this not only undermines their business but ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living.  It is destructive of an important native industry.” 

However, he held that laws seeking to identify and disconnect copyright infringers were not enforceable in Ireland, regardless of the appropriateness of the record companies’ complaints.  The Judge highlighted the deficiency in Irish law which resulted in Ireland currently having no mechanisms to forcibly disconnect internet users who engage in illegal downloading and commented that this results in Ireland breaching its obligations under European Union legislation. 

UPC have reportedly stated that “our whole premise and defence focused on the mere conduit principle which provides that an internet service provider (ISP) cannot be held liable for content transmitted across its network and today’s decision supports the principal that ISPs are not liable for the actions of internet subscribers.” 

It is likely that the decision will have ramifications for a similar settlement agreement entered into between the record labels and Eircom.  It is hoped that the clear gap in Irish law, and the recognition of this gap by Mr Justice Peter Charleton, may spur the enactment of appropriate legislation by the Irish Government in order to protect the rights of copyright holders.  

For further information, please contact Marie McGinley of our Technology & Commercial Contracts Department.