Earlier this year IRMA – which controls 90% of Ireland’s recorded music and represents the likes of EMI, Sony, Universal and Warner – reached a private agreement Ireland’s largest ISP, Eircom, to implement a 3 strikes deal for alleged pirates.
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 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.
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.