Eircom announced in December 2010 that it would be “proceeding with implementation of the protocol which could result in the suspension and ultimately disconnection of broadband service for those customers who deliberately and persistently infringe copyright,” but by October 2010 things we already going wrong. Due to a mix up, Eircom sent out around 300 warning letters to completely innocent subscribers.

This huge error ushered in the involvement of Ireland’s Data Protection Commissioner (DPC) and a wider investigation into the legality of the entire three strikes system. Now, according to a report, that decision is in and for the music industry it’s the worst possible news. The DPC has ordered a complete halt to the practice on privacy grounds.

“Now both the courts and the official DPC are beginning to realize the fundamental right of people to access the Internet, and not to be monitored while they do so,” says lawyer TJ McIntyre of Digital Rights Ireland.

But before free-flow-of-information proponents get too excited, the news is countered this morning by a sobering report which says that if file-sharers can’t be cut off from the Internet, then file-sharing websites shall be made forcibly unavailable to them.

According to The Irish Times, Minister of State for Enterprise Seán Sherlock will publish an order early 2012 that will allow rightsholders to go to court to prevent the country’s ISPs from supplying their subscribers’ access to infringing site. What actually defines an infringing site remains to be seen.

The action comes in response to threats from recording label EMI, which said it would take legal action against the country if the government there failed to take action. In response the Department of Enterprise, Innovation and Jobs wrote back to EMI confirming the order would be published and entered into law next month.

The move follows legal action by IRMA against ISP UPC, which ended in 2010 with Mr Justice Peter Charleton acknowledging that recording companies were being harmed by Internet piracy but that current law did not provide for blocking injunctions.

Source: File-Sharing 3 Strikes Killed in Ireland, Government Promises Site Blocking

The case went to the High Court but although Mr Justice Peter Charleton acknowledged that recording companies were being harmed by Internet piracy, he said that laws to cut off file-sharers were not enforceable in Ireland.

“It is not surprising that the legislative response laid down in our country in the Copyright and Related Rights Act 2000, at a time when this problem was not perceived to be as threatening to the creative and retail economy as it has become in 2010, has made no proper provision for the blocking, diverting or interrupting of internet communications intent on breaching copyright,” he said in his judgment.

By not having this legislative mechanism in place, Justice Charleton said that Ireland is not in compliance with its obligations under European law. The only thing the courts can force an Internet host to carry out, he said, is the removal of infringing material.

Now, through its ‘Consultation on Amendment to Copyright and Related Rights Act, 2000′, the Irish government is taking steps to change legislation to close this apparent loophole.

“It must be emphasised that this proposed amendment is not about the introduction of a statutory regulatory regime in relation to copyright infringement such as the French ‘Hadopi’ system or the ‘Three strikes’ regime set out in the Digital Economy Act in the United Kingdom,” notes the proposal.

Nevertheless, while they do not implement a statutory regime, adoption of the proposals could yield a similar result, a situation welcomed by IRMA.

“We have always been looking for the right to take injunctions against ISPs if they are not dealing with illegality on their networks,” said IRMA chief executive Dick Doyle.

The proposals published yesterday are open for public consultation with a closing date of July 1st, just over a week away. Submissions should be sent to IPU@djei.ie or posted to the Intellectual Property Unit, Department of Jobs, Enterprise and Innovation, Kildare Street, Dublin 2.

The proposals come on the back of the news that due to an administrative computer error, in October last year Eircom wrongly sent out around 300 “first strike” warning letters to innocent subscribers. The error is now being investigated by the Irish Data Protection Commissioner.

Source: Ireland Set To Force ISPs To Disconnect Pirates

“Eircom is proceeding with implementation of the protocol which could result in the suspension and ultimately disconnection of broadband service for those customers who deliberately and persistently infringe copyright,” the company said in a December 2010 statement, reiterating their commitment to the scheme.

But little did we know that the fears of “3 strikes” opponents had already come true.

From deep inside the “how the hell did the majority of the media miss this department”, it now becomes clear that by October 2010, Eircom had already sent out around 300 warning letters to completely innocent subscribers.

The company seems to have tried to play down the error saying that computer clocks were incorrectly adjusted to compensate for daylight saving time, some comfort to the unlucky letter recipients.

According to TJ McIntyre at digital rights site EDRI.org, as a result of this failure the Irish Data Protection Commissioner is now investigating the entire Eircom scheme.

“The significance of this case goes well beyond simple technical failings however, as the complaint to the Data Protection Commissioner (DPC) has triggered a wider investigation of the legality of the entire three strikes system,” he writes.

The DPC is said to be not only investigating the complaint but also “whether the subject matter gives rise to any questions as to the proportionality of the graduated response system operated by Eircom and the music industry.”

McIntyre says that when the Eircom/IRMA deal was being agreed, the DPC expressed concerns with it, not least over the question of whether or not IP addresses are personal data. However, until someone raised a complaint, that issue was put on the back burner. The delivery of 300 false “first strike” warning letters appears to have met that criteria.

“The complaint in this case has now triggered that action, and it seems likely that the Commissioner will reach a decision reflecting his previous views that using IP addresses to cut off customers’ internet connections is disproportionate and does not constitute ‘fair use’ of personal information,” McIntyre explains.

“If so, the Commissioner has the power and indeed the duty to issue an enforcement notice which would prevent Eircom from using personal data for this purpose – an outcome which would derail the three strikes system unless Eircom successfully challenges that notice before the courts, or unless the music industry were to succeed in its campaign to secure legislation introducing three strikes into Irish law.”

The way this story has flown largely under the mainstream tech news radar will have been a relief to Eircom and IRMA. Something tells us that is about to change.

Source: ISP Wrongfully Sent 300 “First Strike” Letters To Innocents

The deal would see the ISP introduce a 3 strikes system for dealing with subscribers who share songs to which the labels own the copyright. The implementation of the agreement was held up over legal argument, but in April this year the High Court in Dublin gave it the green light.

Part of the private agreement between IRMA and Eircom required that the ISP should not be put at a competitive disadvantage through this 3 strikes set up. That meant that IRMA would have to go after other ISPs to force them to do the same.

Among others, IRMA sought agreement from UPC, but the ISP refused to play ball and the case went to the Irish High Court. Today the result of that action was announced and for the record labels and Eircom, the result was bad news.

In a judgment published today, Mr Justice Peter Charleton acknowledged that recording companies were being harmed by Internet piracy but that laws to cut off file-sharers were not enforceable in Ireland.

“It is not surprising that the legislative response laid down in our country in the Copyright and Related Rights Act 2000, at a time when this problem was not perceived to be as threatening to the creative and retail economy as it has become in 2010, has made no proper provision for the blocking, diverting or interrupting of internet communications intent on breaching copyright,” began the judgment.

Justice Charleton noted that by not having this legislative mechanism in place, Ireland is not in compliance with its obligations under European law. He added that the only thing the courts can force an Internet host to carry out is the removal of infringing material.

“UPC has repeatedly stressed that it does not condone piracy and has always taken a strong stance against illegal activity on its network,” the company said in a statement.

“It takes all steps required by the law to combat specific infringements which are brought to its attention and will continue to co-operate with rights holders where they have obtained the necessary court orders for alleged copyright infringements.”

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

The ruling leaves the music industry high and dry in Ireland and Eircom in the unfortunate position of being left at a commercial disadvantage. It will be interesting to see how the record labels and ISP handle this development.

Source: Music Industry Fails In High Court Bid To Force 3 Strikes on ISP

Using data gathered by Danish company DtecNet, IRMA said it would begin supplying Eircom with suspected infringing IP addresses for a 3 month pilot period. Thus far, Eircom has sent around 800 warnings to its customers.

Part of that out-of-court settlement was a promise from IRMA that it would not leave Eircom at a competitive disadvantage. Clearly, once word spread that Eircom is a ‘bad’ ISP for file-sharers, potential customers would see huge benefit in choosing another ISP. To avoid this eventuality, last month IRMA filed papers against mobile operators O2 and 3 for their apparent non-cooperation.

Not everyone is digging their heels in though. Two other mobile ISPs, Vodafone and Eircom subsidiary Meteor, said they were in “advanced negotiations” with the IRMA to bring the graduated response to their networks.

Today there is further news that IRMA is well on its way to soaking up the majority of the Irish market with its “3 strikes” (technically a 4 strikes) scheme, this time by targeting Eircom arch-rival, Vodafone. Market leader Eircom has been in a price war with No 2 player Vodafone for quite a while now, so any action IRMA takes against the ISP will be warmly welcomed by Eircom. It’s even more convenient for them that Vodafone is playing along nicely.

According to a report in the Irish Times quoting IRMA Chairman and EMI Ireland chief executive Willie Kavanagh, “significant progress” had been made with Vodafone in negotiations to bring file-sharing disconnections to the ISP.

In a statement, Vodafone said that file-sharing represents a “serious issue for the Irish music industry” and that it is looking at introducing “appropriate steps” consistent with “applicable legislation and recent judicial decisions”.

The “judicial decision” refers to April’s ruling from Dublin’s High Court which effectively gave the music industry the go ahead to start warning and disconnecting file-sharers.

Getting Vodafone on board would be a significant success for IRMA. Eircom and Vodafone control almost two-thirds of all Ireland’s fixed broadband connections.

Another ISP, UPC, continues its refusal to introduce disconnections for its customers. Tomorrow it will face the start of action in the Commercial Court brought on by the music industry.

Source: Music Biz Set To “3 Strike” Two-Thirds of Irish Broadband

Armed with tracking data from Danish company DtecNet, IRMA would begin supplying the ISP with suspected infringing IP addresses during a 3 month pilot period.

Now, in line with their promise to Eircom that they would not leave the ISP at a competitive disadvantage, IRMA are now going after yet more ISPs in an attempt to force them into the same ’3 strikes’ style agreement.

According to a report this morning, IRMA now has the mobile broadband sector in their spotlight. Yesterday the music industry group – which controls 90% of Ireland’s recorded music – filed papers against mobile operators O2 and 3.

“O2 can confirm that it has been served with a plenary summons by solicitors acting on behalf of record labels EMI, Warner, Universal and Sony,” the company told Irish Times. “O2 is currently reviewing the issue, but does not believe it is legally liable in relation to illegal filesharing activities that any of its customers might seek to engage in.”

A spokeswoman for 3 Ireland confirmed that they too had received legal papers.

Two other mobile ISPs, Vodafone and Eircom subsidiary Meteor, seem to be cooperating with IRMA and are said to be in “advanced negotiations” with the group.

To go after Ireland’s mobile ISPs is an interesting move by IRMA. When disconnections were threatened under the UK’s then Digital Economy Bill, many individuals stated they would use 3G wireless dongles to evade any such ban. Apart from their higher costs of operation, they do have a significant benefits for would-be file-sharers. Operators have stated that due to the way the system is set up, it could be almost impossible to match tracked IP addresses with specific customers.

In the meantime, cable operator UPC continues to dig in its heels by refusing to cooperate with IRMA. Its case will be heard in the High Court in June.

Source: IRMA Strongarms Mobile ISPs To Disconnect File-Sharers

A leaked document, titled ‘Briefing Note on Arrangement Between Eircom and Irish Recorded Music Association (IRMA) with regard to Copyright Infringement March 2009′ provided background information on how the deal would operate.

IRMA would supply IP addresses they believed to be connected with infringements to Eircom (collected by anti-piracy company, DtecNet) and the ISP would send warning notices to its customers who were allocated those IP addresses at the time of the alleged illicit file-sharing. Any customer receiving a third warning would be served with a termination notice and disconnected by Eircom.

However, the implementation of this groundbreaking agreement had been held up by a legal objection surrounding the legal standing of an IP address.

Today, at the High Court in Dublin, Mr. Justice Charleton gave his ruling on the case and it’s not good news for Eircom customers. The judge decided that in this specific case an IP address is not personal data and gave the green light for the Eircom/IRMA 3 strikes arrangement to go ahead.

“The right to be identified with and to reasonably exploit one’s own original creative endeavour I regard as a human right,” wrote Justice Charleton.

“It is completely within the legitimate standing of Eircom to act, and to be seen to act, as a body which upholds the law and Constitution. That is what the Court expects of both individuals and companies.”

The judge added that the Internet is ‘only’ a means of communication and has not rewritten the laws of countries through which it passes.

“It is not an amorphous extraterrestrial body with an entitlement to norms that run counter to the fundamental principles of human rights. There is nothing in the criminal or civil law which legalises that which is otherwise illegal simply because the transaction takes place over the Internet,” he concluded.

In a statement, Dick Doyle, Director General of IRMA said: “We are very pleased with this decision today. Resolving this issue has caused 6 months of disruption to the IRMA/Eircom agreement. We will now proceed immediately to implement the full agreement.”

This announcement now paves the way for IRMA to go after other Irish ISPs to force them to implement the same type of arrangement. No Digital Economy Act required there, just good old brute force.

Source: High Court Gives Go Ahead To 3 Strikes in Ireland

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.

Source: Leaked Document Reveals Eircom Deal With Irish RIAA

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.

Source: Ireland’s Largest ISP Starts Throttling and Disconnections

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.

Source: Music Industry Orders BitTorrent Blackout