Monday 18 February 2019

UPC ordered to install 'three strikes' anti-piracy system

Dublin's Four Courts
Dublin's Four Courts

Adrian Weckler and Tim Healy

The High Court has ordered UPC to introduce a ‘three strikes’ anti-piracy policy internet policy.

The ruling means that any UPC customer caught downloading pirated music or movies is set to be disconnected after two warnings and a further court process. UPC is Ireland’s second largest broadband provider with 360,000 customers.

The High Court judge, Brian Cregan, granted music companies Sony, Universal and Warner an injunction requiring UPC to implement the system.

Mr Justice Cregan said that there was "wholesale theft"  taking place on the UPC network. He said that the constitutional rights of "a whole class of persons are not just being infringed but are being destroyed".  The downloading of music for free is destroying the intellectual property rights of creative artists and should be a matter of great concern in any civilised society, he said.

"The current generation of writers, performers and interpreters of music cannot have their livelihoods destroyed by advances in technology which allow persons to breach their constitutional rights with impunity.”

The judge did not agree with UPC's argument that this is a matter for the legislature and not the courts. He also did not agree with UPC's argument he should refer an issue in this case to the European Court of Justice. UPC had argued that it is not its job to police what its customers access or download. It also said that it was backed up by European law, which says that internet providers are ‘mere conduits’.

Two years ago, the Irish government changed the law to give the High Court more power in making internet providers more accountable to music and movie companies. Today’s case is the first test of this new power in the High Court.

Mr Justice Cregan adjourned the case until next month to allow the parties prepare a submission on how his order is to be implemented.

It will include what sort of impartial arbitration system should be set up to deal with subscribers who seek to challenge termination of their service.

Mr Justice Cregan said the cost of setting up this system had been put at between €800,000 and €940,000, three-quarters of which UPC had argued should be paid for by the music companies.

The judge said however given the music companies' constitutional rights "are being destroyed" by UPC's customers, he believed UPC should pay 80 per cent and the music companies the rest.

In order to reduce the operating costs of this system to UPC -- estimated at between €200,000 to €300,000 per annum -- the judge said the number of warning notifications to subscribers should be reduced from 5,000 per month to 2,500.

The cost of an independent arbitration system for dealing with challenges to termination of service would have to be borne equally between the parties. A fair procedures system is required to comply with the European Convention on Human Rights and general principles of EU law,  the judge said.

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