Under the 3-strikes agreement between eircom and the Irish music industry, Eircom will sanction its own customers, and technical support staff will deal with users' complaints. The next move by the Irish music industry will be court action to get the Pirate Bay blocked - without opposition from the ISPs. If this isn't legal bullying by any other name, then what is? And what are the ‘necessary controls' over the rights-holders IT surveillance companies?
Details of the agreement between the Irish music industry and the telecommunications network provider eircom, have emerged in a leaked document. It is a private agreement for graduated response/ 3-strikes measures againstInternet users, with no public authority or court involved. eircom technical support will deal with users complaints. Eircom will arbitrate on "unintentional" copyright infringements. It raises many new questions on 3-strikes measures and the pressure that the copyright industries are putting onto ISPs.
eircom will not oppose a court application by the Irish music industry to force it to block the Pirate Bay (and others - see below). This has serious implications, because this entails the use of network filtering technology, and is to all intents and purposes censorship to support copyright.
The details of the document have been published by the peer-to-peer news website TorrentFreak, although the full document has not been released. The document refers to an agreement between Eircom and IRMA, the Irish Recorded Music Association (namely the four major record production/distribution companies, EMI, Warner, Sony and Universal, commonly called the ‘4 major labels'). IRMA is the Irish member of the International recorded music industry association known as IFPI.
According to TorrentFreak, the document details the ‘Key Points of the Draft Protocol' which Eircom must follow.
eircom will warn and then disconnect its customers on the basis that there has been an allegation of copyright infringement by the music distributors. There will be no independent verification of the allegations. Eircom has asked that the IT company which will supply the IP addresses (the evidence) is subject to the ‘necessary controls' . This begs the question - what are ‘necessary controls' over an IT company which has carte blanche to get Internet users sanctioned?
eircom says that customers have the right to complain and will be dealt with by its existing broadband support systems. This implies that the technical support teams will be asked to deal with a legal matter, that may result in a private sanction against the complainant. There are obvious questions related to training and appropriateness.
eircom will see that any 'unintentional' infringement can be remedied. But how does a technical support team member determine the rights and wrongs of a legal matter?
However, it occurs to me that there is a hidden issue. Where is the call centre? If eircom does what the UK ISPs to, and puts its call centres off-shore, then there are further implications, and I will be coming back to this question ina future article.
It is important to remember that this is a private agreement, between two commercial organisations, finalised behind closed doors - but which has major implications for the future of the Internet and the Information Society.
It is known that one of the parties was put under pressure by the other party to agree, or further expensive legal action would follow. Although it does not technically set a legal precendent - which the ISP industry was pleased about - it may well do so in effect, because the music industry will continue to use it as a stick to beat other ISPs.
Certainly, it would be in breach in of the EU Telecoms Package Amendment 138, which states that no user may be sanctioned without a prior court ruling. It is also believed that IRMA's back up measure, blocking access to web applications and services (the UK government's technical measures), represents ‘interference' with the users fundamental rights, and would therefore also be in breach of Amendment 138.
Read the full details of the IRMA/eircom private agreement on TorrentFreak
If you are not familiar with the EU Telecoms Package and Amendment 138, please read my extensive coverage on this website.
This letter sent by IRMA's lawyers , Sheehy Donnelly, makes clear the tactics of the international music industry. It was sent to Blacknight Internet Solutions Limited, a web hosting company, threatening them that unless they follow Eircom with 3-strikes measures, they will face legal action which, according to the music industry, they stand little chance of winning.
It fails to understand the difference between web-hosts and ISPs, indicating that any company in the web business could be faced with this kind of threat. It skews the interpretation of the e-commerce directive ‘mere conduit’ provision, which was not intended as a defence against copyright, but as a necessary and appropriate protection for all the users of a communications network.
Under this interpretation, the rights-holders claim that the law (E-commerce directive and copyright directive taken together) permits them to bring an injunction to get a court order for 3-strikes measures. This is stretching the interpretation of the law. The law does provide for them to take out injunctions against third-parties, but the intent was to obtain information for specific legal actions, or get one-off infringing copy taken down from web sites. The intent of the law was not to implement mass sanctions against millions of users.
It is evident from this letter that The Pirate Bay would be just the first peer-to-peer site they would attempt to get blocked – ‘similar’ sites indicates they would go after others too.
This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2009), eircom: Internet policing by tech support http://www.iptegrity.com 13 August 2009.