While UPC and BT Ireland denied the request, Eircom, Ireland’s largest ISP, already agreed and said it would block customer access to the site starting September 1st – today.

TorrentFreak can confirm that Eircom customers can no longer access The Pirate Bay and instead, are faced with this message when trying to access the site (body in plain text for clarity);

On the 24 July 2009, an Order was made by the High Court requiring eircom to block or otherwise disable access by its subscribers to the website ThePirateBay.org, its related domain names, IP addresses and URLs. The Court was satisfied that on the basis of the evidence presented by the record companies that the PirateBay website is a website that facilitates the exchange of copyrighted sound recordings without the consent of the copyright owners.

eircom recognises the legitimate rights of the owners of copyrighted material and believes that individuals who share or download copyrighted material without the authorisation or the permission of the copyright owner are acting illegally.

The Order further provides that should the PirateBay website content be legitimatised in the future then eircom has liberty to apply to the Court to have the Order vacated and access to the PirateBay website enabled.

eircom in compliance with the Order has agreed that access to the website the PirateBay.org, its related domain names, IP addresses and URLs from the eircom network will be blocked indefinitely from the 1st September 2009.

eircom would like to reassure customers that:

* eircom will not monitor customer’s activities at any stage, nor will it place any monitoring equipment or software on its network in order to facilitate this block.
* eircom will not provide personal details or any information relating to customers to any third party, including the record companies.

The order to which Eircom refers relates to one awarded after an uncontested hearing before the courts – mirroring its earlier weakness over “3 strikes”, Eircom had already agreed with IRMA, Ireland’s version of the RIAA, that it would not put up any resistance.

According to Irish Times, Eircom has also revealed it has signed a memorandum of understanding with EMI, Sony, Universal and Warner to develop a new online music service, with an aim to have it released before Christmas this year.

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Thus far, they have booked minor successes in Denmark and The Netherlands. But they show no sign of stopping and now they are moving on to Irish and Norwegian ISPs.

This week the music industry sent an email to several Internet providers in Ireland, asking the companies to block their users’ access to The Pirate Bay or face legal action. In a response to this request, Eircom said it would agree and the ISP will block customers access to the Pirate Bay starting September 1st.

Thus far Eircom is the only ISP that has caved in to the threatening letter. UPC and BT Ireland – two other local ISPs – explicitly denied the request from the music industry and said they would rather fight the issue out in court.

“UPC has informed the rights holders that there is no basis under Irish law requiring an ISP to block access to certain websites and that it will not agree to a request that goes beyond what is currently provided for under Irish law,” UPC said in a statement.

“Should the rights holders proceed with their threat of legal action if UPC fails to block access to Pirate Bay, UPC has every intention of vigorously defending its position in Court,” they add. BT Ireland sides with UPC and said that there is no legal basis for the request to block The Pirate Bay.

Eircom’s decision to agree to the demands from the music industry doesn’t come as a big surprise. Earlier this year they already reached an agreement in which they promised to warn alleged pirates, and disconnect those who are caught repeatedly.

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Details of the arrangement have been fairly limited but now an apparently leaked document gives a unique insight into the private deal put into place to allow Eircom to avoid further expensive legal action at the hands of the music industry.

The document passed to TorrentFreak, titled ‘Briefing Note on Arrangement Between Eircom and Irish Recorded Music Association (IRMA) with regard to Copyright Infringement March 2009′ begins by giving some background to the deal and why it was implemented.

Listing ‘Key Points of the Draft Protocol’ the document promises that Eircom will not monitor its customer activities or install equipment to achieve the same, and will not provide any customer details to any 3rd party “including the record companies” while adhering closely to laws concerning data protection.

The Evidence

The document explains that IRMA will supply Eircom with IP addresses and evidence to prove infringements. The document specifically lists not just uploading infringements on peer to peer networks but strangely, downloading too. Quite how downloading will be proven will remain to be seen.

Under the agreement, IRMA will supply the following information in their infringement notifications:

1. Details of copyright holder (name and address)
2. Why the notification is being sent (i.e. setting out the breach of copyright)
3. Details of the actual copyright work infringed (artist, song, title and album title)
4. The IP address along with a time stamp to show when the investigation was initiated
5. A time stamp to indicate when the investigation was completed
6. Details of the P2P application used by the alleged infringer
7. The hash value of the infringed copyright work

The document says that the information provided by the record companies “will be of the same type as that used in the three previous disclosure actions in the Irish High Court involving the parties,” noting that Eircom will not act on a notification which does not carry the information listed above.

Additionally, Eircom has requested that IRMA provides independent certification to show that notifications have been lawfully obtained, including “reputable annual independent certification that the necessary legal, I.T., entity level and regulatory controls relating to the obtaining, generating and processing of data by Dtecnet [the anti-piracy tracking company tasked with monitoring infringers] (or any other supplier engaged by the record companies) have been complied with.”

Handling the ‘Graduated Response’

On the first strike, Eircom will inform its customer there has been an accusation of copyright infringement. On the second accusation the customer is warned that he risks being disconnected if there are further allegations. The final step is detailed in the document as follows;

On a third occasion of being detected as infringing copyright, and having reviewed the position, the subscriber will be served by Eircom with a termination notice and, subject to extenuating circumstances arising, will be disconnected thereafter.

So what measures are there to safeguard Eircom’s customers from errors, unfounded disconnections or other mitigating circumstances?

According to the document, at all stages in the process Eircom’s customers will have the right to complain if they feel they have been “inappropriately or incorrectly identified as infringing copyright,” and will be dealt with using the ISP’s existing broadband support systems. Additionally, this section seem to provide a little room for maneuver in certain circumstances;

Eircom has also reserved the right to remove a customer from a particular level or not to effect a disconnection where Eircom has received representations or complaints and believes that the infringement as alleged has not taken place or where there are particular extenuating circumstances which would make the disconnection of the customer unjustified.

Eircom will engage with that person at all times to ensure that there is a full understanding of the issues and that any accidental or unintentional infringement can be identified and remedied.

Dealing with the ultimate sanction – disconnection.

Disconnections will only be carried out when Eircom is “totally satisfied that there is clear evidence of sustained copyright infringement, that the alleged infringing person has had sufficient opportunity to explain its circumstances and that all possibilities that the person was a victim of accidental infringement have been eliminated.”

If the main conditions are met, Eircom will then disconnect its customer based on two elements – a TOS violation (copyright infringement is not allowed on Eircom accounts) and the ISPs legal obligation to disable access to infringing content on ts network, once it has been made aware of it.

Blocking Websites

There had been rumors that Eircom had agreed to block some websites i.e The Pirate Bay, but according to the document, Eircom has not agreed to implement a website filter – on copyright grounds at least. However, as part of the settlement it was agreed that Eircom would not oppose a court application by IRMA to force it to block The Pirate Bay specifically but no other sites are mentioned.

Time will tell if the details above constitute the final agreement, but the framework seems entirely consistent with the way the music industry wants ISPs to handle infringement. This deal with Eircom will be one to watch closely.

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Eircom felt this agreement would put it at a competitive disadvantage, so part of the deal would see IRMA go after Ireland’s other major ISPs too. IRMA kept that promise by going after two other ISPs – BT Communications Ireland and UPC Communications Ireland. IRMA said it targeted these ISPs since their customers share the most music.

Unlike the weak Eircom, UPC and BT say they will not go over and above their obligations under the law and have refused to capitulate to the music industry monopoly – IRMA controls 90% of recorded music in Ireland.

So next month sees Eircom become the anti-piracy partner of IRMA. It will begin acting on the inspired decision to punish its own customers, based upon allegations of copyright infringement from the music industry. On an initial allegation, Eircom’s customers will receive a warning on their bill. On a second, they will find that their connection has been slowed “to a snail’s pace” and on a third, its Internet blackout time.

All this without the need for a court either – President Sarkozy would give his right arm for this kind of unconstitutional power.

So why exactly did Eircom get into bed with IRMA when the European E-Commerce Directive clearly states that ISPs are not responsible for the data they carry?

According to some – surprise, surprise – it’s all about money. While Eircom could’ve gone through with its defense in the court case against IRMA, these things take time and can drag on for months or even years. This is the last thing Eircom needs in its current position.

The ISP is at least $5.6 billion in debt, has had five owners in the last 10 years and is currently the subject of yet another takeover bid by Singapore Technologies Telemedia, a unit of Singapore state investor Temasek Holdings.

Problematic outstanding litigation isn’t particularly attractive to prospective buyers, so the decision to settle with IRMA could have been viewed as a sensible one by Eircom, even at the risk of losing some customers.

However, according to Eircom spokesman Paul Bradley, there has been “no measurable loss” of customers moving to Ireland’s other ISPs but of course, Eircom hasn’t disconnected anyone yet. Rest assured when they do, the number moving to other ISPs will be almost identical to the numbers they disconnect.

Giving money to a company that rates your business as secondary to the needs of someone else’s business, copyright infringement or not, seems like a good situation to avoid.

Sign up with UPC here or BT here and help to finance their battle against the bullies from IRMA.

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After initially telling everyone how it would never cave in to the labels, Eircom quickly changed its tune. A few days into the court case, suddenly there was a “world-first” agreement between the labels and the ISP.

Eircom had entered into an entirely voluntary agreement with the labels, where they would simply accuse alleged copyright infringers (via DtecNet, the RIAA and BPI anti-piracy partner), and on the third accusation the ISP would disconnect that subscriber on a Terms of Service violation.

Although it hasn’t been put into place yet due to “ongoing technical discussions concerning implementation,” this deal does seem very cosy.

And it gets cosier still. As part of the agreement with Eircom, the Big Four agreed that they would go after other ISPs to force them to agree to the same terms as Eircom did, so the company “would not be at a competitive disadvantage.”

So who would be next on the hit-list?

According to a report in the Irish Times, that honor has been bestowed on Ireland’s second-largest telco BT Ireland, and the country’s largest cable operator UPC Ireland.

On Tuesday, two sets of legal proceedings were issued at the High Court by “EMI Records (Ireland) Limited and others”, one against BT Communications Ireland and another against UPC Communications Ireland. IRMA, Ireland’s equivalent to the RIAA said it targeted these ISPs since their customers share the most music.

While a spokesman for BT said he couldn’t comment at this stage, a spokeswoman for UPC said their company position hasn’t changed. It will not enter into an agreement with the record labels that goes further than existing legislation – i.e no voluntary 3 strikes.

“There is no basis under Irish law requiring ISPs to control, access or block the Internet content its users download. In addition, the rights-holders’ proposal gives rise to serious concerns for data privacy and consumer contract law,” she said adding: “UPC intends to vigorously defend its position in court.”

Eircom took that position too, but look where they ended up – in the lap of the Big Four. Time will tell if UPC can maintain its strength against determined opposition.

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But that wasn’t enough. Now the industry wants more and is ordering Eircom to block access to any sites it wants blocked. And it doesn’t end there.

Smelling blood, the music industry is ratcheting up the pressure and they are now demanding that all ISPs censor the Internet by blocking access to all file-sharing related websites (more info and the full letter here).

And the worrying news is it’s already a partially done deal. The Irish Recorded Music Association (IRMA) has already convinced Eircom to comply, and is warning the other Internet providers in Ireland that they should follow suit, or face legal action.

The first and primary target is The Pirate Bay. This comes as no surprise of course, as the music industry’s IFPI has already succeeded in blocking the largest BitTorrent tracker in Denmark, after which they attempted to do the same in Norway and Italy. In Italy the Internet providers initially complied, but this decision was later overturned in court.

As for the next targets for censorship – for which a list is currently being drawn up by Irma – this is how the industry’s scheme will work. Under the terms of an agreement between Eircom and Irma, Eircom will not oppose any court application, meaning that orders requesting the blockage of a particular website will be automatically granted. A spokesman for Eircom confirmed that Eircom ‘‘will not oppose any application [Irma] may make seeking the blocking of access from their network’’ to ‘blacklisted’ websites.

The other Irish ISPs are now facing legal action from the music industry if they don’t give in to IRMA’s demands within seven days. The ISPs are baffled by the aggressive approach by the music industry, and are calling for protection to prevent worse.

“We don’t support illegal activity on our network but this is an unprecedented agreement,” said Alex French of Ireland’s leading Wi-Fi service Bitbuzz. “Is the music industry planning to become Ireland’s de facto internet censor?”

So it seems. However, Eircom could be digging an even deeper hole for itself. By agreeing to censor the Internet at the behest of not the police, but a private and commercially driven organization, it has effectively dumped its own common carrier protection.

Furthermore, The Pirate Bay (or any other sites Ericom intend to block) have never been deemed illegal in Ireland. This has to be seen as a very worrying development. So, open the floodgates, everyone is going to want sites blocked soon and if you’ve got enough cash, it’s on the cards with Eircom. At the very least, let’s hope Eircom is going to make its list of banned sites public, along with their reasons for blocking each and every site, properly referenced under the law.

And let’s hope the rest of Ireland’s ISPs stand up for themselves.

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Unfortunately for Eircom and its customers, it didn’t take long for their setup to be exploited. Aside from standard WEP-crack apps, several pieces of software became available on the web to instantly crack the protection on these routers. Within seconds, the software allows anyone to access an Eircom customer’s connection without permission.

All it takes is a simple scan for wireless networks in the area, select one of the available Eircom routers (they are easily spotted) and enter the discovered SSID into the software. The applications instantly return the router’s WEP key. In just moments, anyone within wireless range can be abusing the connection by doing, well, just about anything.

Eircom knows about the exploit and claimed to have sent letters out to every subscriber with an affected router, telling them to change their keys and/or SSID. Of course, out of that potential 250,000 subscribers, there were a huge number who had absolutely no idea what Eircom were talking about, while others did but took no action. The end result is that there are thousands of Eircom customers who are still exposed to the problem of other people doing stuff on their line that they know nothing about.

Reader Sean Byrne, who lives in Ireland told TorrentFreak, “There are lots and lots of existing WiFi signals that are open to this exploit. I’m located in Galway city, there are several ‘Eircom*** ***’ SSID’d networks located in the city that are open to this.”

Even now, 18 months after this exploit became known, Sean explained that while traveling around the country he finds Eircom-routered networks he can easily jump onto, should he wish. “It’s like free communal WiFi on tap,” he told us, “most places you travel in Ireland will have an Eircom WiFi signal.”

Although WEP security should be avoided if at all possible, some devices (particularly older ones) rely on it. Short of changing the WEP keys, this particular exploit can be defeated by simply changing the network’s SSID.

That said, we expect the same people who ignored or missed Eircom’s advisory the first time round will more than likely take the same action as they did back then – i.e very little. In the meantime, thanks to Eircom’s deal with the music industry, anyone in this position can have their connection used by an unauthorized file-sharer, and along with that the prospect of being accused of something they haven’t done.

Equally, anyone with one of these routers could simply claim they have been the victim of a hacker and Eircom would have to believe them. I’m sure we’ll be hearing more about this situation before long.

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Thanks to Eircom entering into this entirely voluntary agreement, there is no need for them or the music industry to worry about any official intervention into the methods used for accusing and disconnecting subscribers. The music industry simply accuses alleged copyright infringers (via DtecNet, the RIAA and BPI anti-piracy partner), and the ISP simply disconnects them on an agreed Terms of Service violation.

A worrisome development, to say the least. The agreement bypasses the need for any legal ruling on the issue of a government-applied ‘3 strikes regime’. So, although the government may decide against this type of action for the general public, Eircom just put it firmly on the table, completely voluntarily, for all of its subscribers.

There will be no need to take alleged copyright infringers to court. The music industry knows from the US model that doesn’t work anyway, because it involves all that messy ‘defense’ stuff that people who are wrongly accused usually have the right to. Rather than face the hell of a trial (which at least they have a chance of winning), customers will be presumed guilty rather than presumed innocent. The will be no due process on the way to the punishment disconnection.

There will likely be no easy legal challenge to a user’s disconnection. Eircom will simply change its Terms of Service to include new tougher clauses which allow them to terminate the service if the connection is ‘abused’, although arguably the old TOS allows for this already. The warnings it will hand to its customers leading up to this point will be considered enough notice, as per the new TOS.

Anyone who shares an Internet connection with friends or family, or any business that has file-sharing staff (or wireless piggy-backers etc) will mean that the entire line goes down if anyone infringes, even a child. In disconnections of this type it will mean that the bill payer is being made responsible for something which happens on his connection without his knowledge.

As a carrier, ISPs are not responsible for the activities of their subscribers. The music industry disagrees. Eircom were set to challenge this in court – but with this new agreement that opportunity has been lost. The Big Four labels also insisted that anti-piracy filtering technology could be installed at Eircom, and argued that it would work. The chance to dispel this myth has been lost too.

Perhaps even worse, this might just be the beginning. The IFPI will use the Eircom agreement to force other, smaller ISPs in Ireland to reach the same agreement with them. If they succeed, IFPI will have achieved a “3 strikes” regime in a country without need for the messy business of the government getting involved with regulation, which it would otherwise be reluctant to do.

In no way does this agreement stop the music industry from getting someone disconnected AND taking a civil legal action against them.

This agreement will do nothing to change the habits of those who wish to share files. It will, however, encourage people to find a way around the measures introduced by IFPI and Eircom so the never-ending cat and mouse game continues.

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Quantifying its ‘losses’ in court, the four labels claimed illegal downloading costs the Irish music industry 13.8 million Euros every year, and since Eircom has 40 per cent of the ISP market, it must be held responsible for causing the industry losses of between 4 and 5 million Euros. Further details about the case are available in our previous report.

The case, which was due to run for 4 weeks, was cut short this evening after just eight days. According to an RTE report it has ended after a fairly shocking and unexpected development. The ‘Big Four’, headed by the IFPI, have reached an “amicable” settlement with Eircom.

In an agreement believed to be a world first, EMI, Sony BMG, Universal and Warner will start tracking the IP addresses of alleged infringers and supply the details to the ISP. Eircom has agreed that it will ultimately disconnect infringers from the Internet.

Essentially, Eircom has agreed to implement a “3 Strikes” regime against its own customers. On the first allegation the customer will get a warning. On the second allegation they will be informed that if they do not stop their activities, disconnection will follow. On the third, it’s Internet blackout time.

The Chairman of EMI said he now expects other ISPs to follow suit – serious pressure will be brought down on them immediately.

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The legal action, under the Copyright and Related Rights Acts 2000, claims the ISP knowingly facilitated the infringements of its customers and is therefore liable for their actions. Willie Kavanagh, Managing Director of EMI records in Ireland said of Eircom: “With the greatest of respect” it was “well aware” that its customers used its networks to infringe copyrights “on a grand scale”. In response, Eircom (correctly) believes that as a carrier, it is under no obligation to monitor the content of traffic on its network.

Being heard by Justice Peter Charleton, the trial started yesterday in Court 7 at the Commercial Court and is listed to run for the next four weeks. Michael McDowell SC, a former politician now representing the ‘Big Four’ in the case, said Eircom should be forced to stop its customers from illegally downloading music. According to reports, he quickly began his attempts to portray Eircom in a bad light.

McDowell read out an internal email from 2001, written by Eircom’s head of Internet, Denis Curran, which noted that the issue of “MP3 piracy” should be the subject of discussion at a forthcoming management meeting. All fine so far, but Curran wrote “Piracy is a loaded term. Could we say ‘sharing‘- ‘piracy’ implies there’s something wrong with it.”

Clearly not realizing his off-the-cuff comments would be aired worldwide eight years down the line, Curran added “Think of it as helping the health and good living of rich cocaine sniffing rock stars by leaving them with less free money to spend on sex and drugs.”

McDowell didn’t stop there. Not wanting to miss an opportunity to imply that Eircom supports piracy, McDowell noted that only this week, the ISP was seen to be advertising its services on The Pirate Bay. Of course, Eircom would have no idea that this was the case, as they will have out-sourced their advertising to an agency.

In attempting to quantify the ‘losses’ incurred by the ‘Big Four’ at the hands of Eircom, McDowell noted that illegal downloading costs the Irish music industry 13.8 million Euros every year, and since Eircom has 40 per cent of the ISP market, it must be responsible for causing the industry losses of between 4 and 5 million Euros.

It will be no surprise if the rest of the statistics provided by the ‘Big Four’ and IFPI are equally vacuous.

The case continues.

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Mr Justice Peter Kelly today admitted the proceedings at the court under the Copyright and Related Rights Acts 2000. It appears the labels are trying to get an order to effectively force Eircom to take responsibility for their customer’s actions by saying that it’s the ISP that is doing the ‘making available’ to the public, by facilitating the infringement.

Eircom’s lawyers see if differently. They say that Eircom was “not on notice of specific illegal activity that infringed the rights of the companies”, adding that it was under no legal obligation to monitor traffic on its network.

Willie Kavanagh, Managing Director of EMI records in Ireland said of Eircom: “with the greatest of respect” it was “well aware” that its customers used its networks to infringe copyrights “on a grand scale”.

Previously, Eircom has refused to use any filtering technology to interfere with file-sharers, something the labels wish to address in this case too.

It looks like the IFPI has shifted its focus from the individual filesharer to the ISPs. Last month, the IFPI won a court case in Denmark, and the ISP “Tele2″ was ordered to block all access to The Pirate Bay. Tele2 announced later that it will fight the decision.

Banning illegal filesharing from their network, voluntary or not, is in the best interest of ISPs according to the IFPI: “Illegal P2P file-sharing may have helped drive broadband subscriptions in the past, yet today these activities, particularly in respect of movies, are hogging bandwidth,” they state.

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