The Closing of the Net  "original and valuable"  Times Higher Education

An Irish judge today handed down a judgement which ruled out 3-strikes measures and the blocking of websites for copyright enforcement purposes - at least under current Irish law. The rules contradicts the previous eircom ruling which permitted 3-strikes.

However, it was not all good news - the judge sympathised with the music industry who brought the case


The case concerned the Irish Internet service provider (ISP)  known as UPC, who was being sued in the High court by the Irish recorded music industry - EMI, Sony, Universal and Warner. The music industry were asking for an injunction against UPC which would force it to ‘stop this infringing activity' on its network. |


They asked for the network provider to be made liable for the copyright infringement taking place on its network. The methods requested

to ‘stop this activity' were to block specified websites, in particular The Pirate Bay, and a 3-strikes solution.  Note that the term 3-strikes was used in the court judgement, so there is no ambiguity about it.


The judge, Mr Justice Charleton,  accepted the music industry claim  that it is in economic trouble due to peer-to-peer file-sharing. He heard a range of technical solutions, one of which included a Cisco 8000 router being upgraded to sniff out copyright infringing files.


It was also accepted that UPC is a mere conduit, and has no liability for content which travels on the network.


What is really interesting is that this is the same judge who ruled in the eircom case. He makes it clear that the difference here is that UPC turned up in court and defended itself, whereas the eircom  case was undefended, and he only heard one side.


He made it clear that although his sympathies lie with the music industry, Irish law does not permit him to grant what they ask. In other words, he could not order for the Pirate Bay or any other website to be blocked by UPC nor could he ask UPC to implement a 3-strikes policy.

Interestingly, he cited the Telecoms Package final agreement Article 1.3a:


‘The Court notes that Article 1 of the 2002 Directive is altered by Article 1 of 2009 Framework Directive requiring due process and a judicial hearing before internet access is terminated.'



The Conclusion in the case of EMI, Sony, Universal and Warner v  UPC incorporated the following: 

137. Having fully considered the issue of blocking a site as variant as The Pirate Bay, I regret that my previous judgment in the matter was wrong. The legislative basis enabling me to act in that way does not exist in Irish law as it exists in other European jurisdictions. The parties to that case may wish to reapply, or they may be content that The Pirate Bay should be blocked through the channels of Eircom. No order as to costs was made in that case, as the application was uncontested and costs were not sought as a matter of consent.


138 {...} In failing to provide legislative provisions for blocking, diverting and interrupting internet copyright theft, Ireland is not yet fully in compliance with its obligations under European law. Instead, the only relevant power that the courts are given is to require an internet hosting service to remove copyright material. Respecting, as it does, the doctrine of separation of powers and the rule of law, the Court cannot move to grant injunctive relief to the recording companies against internet piracy, even though that relief is merited on the facts.

139. The Court thus declines injunctive relief.


This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. 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 (2010) Irish judge rules out 3-strikes and web blocking 11 October 2010







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