Why the IFPI/Eircom Anti-Piracy Deal Sucks

This week, Irish ISP Eircom and the music industry avoided an expensive legal battle, and settled out of court with a deal to disconnect alleged pirates. Eircom didn't want to start using filtering technology to thwart pirates, so it made a deal with the labels instead - and it sucks.

Eircom, after initially holding out and maintaining its position so strongly, has now capitulated to the wishes of the music industry. It has settled with a group which runs 90% of Ireland’s music market, putting their wishes above the requirements of its own customer base, who of course, they didn’t consult about the move.

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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