The worst of both worlds

The case between record labels and Irish ISP Eircom has, as is widely reported (RTÉ, Irish Times breaking news, Irish Times front page), been settled out of court. For the background to this case, read my original post here, with lots of links to others. The settlement is said to provide for a three-strikes system, where alleged infringers will be detected by the record companies, IP addresses notified to Eircom, and users disconnected (after warnings) by Eircom. I’m not entirely sure how this fits with the claim in the case which was for Eircom to do the filtering – more information is required; in the case the argument was for Audible Magic but that appears to have been dropped in return for the disconnection agreement. Update: via Ray, it’s DtecNet.

I’ve a busy day today so this is a relatively quick reaction. However, the title of this post sums up my feelings – it could not possibly have been worse, for these reasons:

  • The settlement agreement is unpublished. While it may be published (assuming such is permitted by the terms of the settlement), this is not required (as it would be in the case of a judicial decision)
  • There is no appeal, as the parties have settled out of court, so this is the final word – no Supreme Court, no reference to the ECJ. Madness.
  • The position of other ISPs is unclear – the record companies will no doubt seek similar agreements from smaller players; Ronan Lupton (representing other operators through Alto) says that they shouldn’t expect the Eircom agreement to apply outside of yesterday’s agreement
  • The solution is disastrous. Creating a system where alleged IP violations are determined by the music industry and published by the ISP industry flies in the face of the rule of law. Why bother with expensive courts and complicated statutes and messy democracy when you can just leave it to two private companies to sort out right from wrong?
  • Rights of appeal (if any) are unclear, and will most likely be based on the triumph of the impenetrable user agreement that no-one will read but everyone must follow. This is particularly important given the level of misunderstanding that is apparent re ‘downloading of music’ always being illegal, P2P being for ‘pirates’, etc.
  • The sanction is disproportionate. Internet access is used for communication, education, news and media consumption, delivery of Government services, etc. Cutting off someone’s Internet access is, in the present day, a serious and worrying sanction, and as more services and aspects of citizenship move to online delivery, disconnection becomes even more serious. (I explain this point in more detail here).
  • The law remains undeveloped, with the (intellectually unsatisfactory) SABAM case remaining the only serious European word on what is, in part, a matter of the reconciliation of a range of EU legal measures.

I don’t really blame Eircom for settling – the company has a duty to minimise its own financial risks. I think it should serve as a reminder, though, to those who would put their faith in companies (ISPs, content providers, platforms, etc) to defend their digital rights. Ultimately it is up to users, citizens and consumers to speak up for their own rights. From the court’s point of view, this was a dispute between two enterprises, handled in the Commercial Court, and Internet users (or Eircom’s customers) were not represented. At least if this was a matter being dealt with by the legislature, there would be some concept of it being a matter of general interest rather than a spat between businesses. (Of course, similar criticism can be levelled at the record industry = rights of musicians idea, and others can make that argument if they have more time to do so). Indeed, the recent discussion of this approach by Ministers in the UK (rejected) and New Zealand (accepted) really does put the Irish solution in context – it’s not just about the result (I agree with the UK result) but the process and legitimacy issues.

More later. Sorry for the site being off the rader this week – everything appears to be working again, but if you have tried to submit a comment and failed, please try again.


8 thoughts on “The worst of both worlds

  1. What’s probably going to happen is that this whole issue is going to shift from being an IP/regulatory law one to being a contract/ consumer protection law one. Two points spring to mind.

    First, to put this settlement into practice Eircom will have to modify its terms of service for all its current customers (without giving any legal consideration for a unilateral modification of a contract) which could pose considerable enforceability problems. Moreover, to properly incorporate the ‘three strikes and your out’ rule into its contracts Eircom is probably going to have to draw this new provision to the attention of its subscribers (so we may, indirectly, get to figure out what the terms of settlement were).

    Second, and more interestingly, if, and when, Eircom seeks to terminate someone’s service, we may finally get some litigation as to whether or not these often unfair, impenetrable user agreements are actually enforceable or not. We’ll finally get to see if the Unfair Terms Directive, along with all the old common law and equity cases on enforcing one-sided terms that weren’t negotiated or drawn to the parties attention have any bearing on user agreements.

  2. I’ve covered this very subject on my blog also. The thing is it will be very difficult for eircom to police. some peer to peer sites allow you to encript what you upload and down load. The isp (internet service provider) can see your down loading but cant see exactly what.

    so if downloading the answer is encript everything.

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