Sunday 26 May 2019

Is censorship the order of the day in protecting the music industry?

Irish ISPs fear that Eircom's recent landmark agreement with IRMA over blocking sites with illegal copyrighted material has put them in choppy legal waters
Irish ISPs fear that Eircom's recent landmark agreement with IRMA over blocking sites with illegal copyrighted material has put them in choppy legal waters

Marie Boran

Following the recent High Court decision to implement the ‘three strikes’ rules against Eircom customers found to be illegally downloading or uploading copyright material, a solicitor’s letter from the Irish Recorded Music Association’s (IRMA) legal counsel has thrown up more worrying implications for internet censorship.

Irish internet service providers (ISPs) worry that parts of the agreement resulting from this landmark case will not only lead to ISPs carrying the cost and burden of protecting the music industry, but will also force them to censor some sites at its behest.

The letter, received by ISPs across Ireland early last week, has asked these companies to follow Eircom in removing customers found to be illegally accessing copyright material. The letter stated that this request is in accordance with Irish and European law.

However, in addition to this request was a statement that Eircom has also agreed not to oppose any application IRMA may make seeking to block access from the telco’s network to The Pirate Bay or similar websites.

The Pirate Bay is a torrent-tracking site that acts as a search engine for torrents or files. It points users towards material on the internet that may or may not be copyright infringing. The site itself does not host any material.

The Pirate Bay’s owners are currently on trial in Sweden for copyright infringement, but the site has not yet been ruled illegal, nor is it currently illegal for internet users within Ireland to access it.

“Even if The Pirate Bay does get convicted in Sweden, it has not been convicted in the Republic of Ireland,” says Alex French, CEO of wireless internet provider BitBuzz.

“Illegal and blocked in one country is not illegal and blocked in another.

“If the industry is this worried about The Pirate Bay, it should bring the website to court in Ireland.”

French explains that while BitBuzz does not condone the illegal downloading of copyrighted material in any way, it rankles at the request to block certain websites, which may or may not be proven to contain or aide this process, because this sets a worrying precedent in forcing ISPs to block access to websites on request.

“The mention of The Pirate Bay [in the letter from IRMA’s solicitors] seems to put the whole common carrier, mere conduit status of Eircom at risk because if you block one thing, then you have to ask why not block child pornography or racist hate sites,” says French.

“Why is it that protecting the music industry is more important than blocking anything else?”

On top of this, the wording “similar sites” is vague and could be interpreted to mean many things, he says. “The difficulty is that it is alluding to any sites that allegedly breach copyright.

“What if you have an image on your website for which you haven’t obtained the proper release form? Can the copyright holder now have all the ISPs block access to your site?”

If ISPs, including Eircom, agree not to oppose blocking access to The Pirate Bay and other similar websites, is this an agreement to web censorship?

“I don’t think there is any other way to interpret it,” says French.

“They are essentially agreeing to censor certain websites at the behest of the recording industry, without these websites ever having necessarily been shown to be illegal in the Republic of Ireland.

“I would have a huge concern over what other websites may be blocked, and what other industries will pile in now that the precedent has been set.”

The precedent, French says, is that Eircom can block sites that IRMA does not like.

“Who becomes the adjudicator of what is acceptable and what is not?”

Further to this, French asks what the monetary and logistical implications of this threatened legal action are, a worry shared by Ronan Lupton, chairman of the Association of Licensed Telecom Operators (ALTO).

“The threat of legal action is ill-conceived in the current economic climate. “With everyone worried about keeping jobs, ISPs do not want to worry about the additional costs of rolling out software or the damage of blocking users.

“We don’t condone the illegal downloading of copyrighted material, but threatening legal action without first talking to the operators is not the way to go with this,” Lupton says.

IRMA’s solicitor’s letter urged ISPs to respond in seven days, adding that a response in the negative will result in section 40(4) of the Copyright and Related Rights Act, 2002 being invoked against them.

“It’s a threat that, unless ISPs agree to some unspecified plan within seven days, legal action will be taken. I think the industry as a whole is now examining what it should do. ALTO has called for legislation to come in to protect ISPs,” French adds.

© Silicon Republic Ltd 2009

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© Silicon Republic Ltd 2009

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