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Data watchdog blocks scheme to identify music pirates

RECORD companies suffered a blow in their campaign against online music piracy, after the Data Protection Commissioner moved to block a scheme to identify illegal downloaders.

The commissioner told Eircom to stop implementing an agreement whereby downloaders were to be warned about their actions.

Under the scheme, the downloaders would be warned three times then face losing their broadband service. But the commissioner believes this agreement breaches data protection and privacy laws.

The companies fear that the move will unwind the agreement aimed at combating illegal music downloads.

And in a High Court challenge, the companies said the commission's action amounted to an unlawful and irrational attempt to re-open data protection issues that had already been determined in their favour by the court.

Mr Justice Peter Kelly granted leave to EMI Records (Ireland) Ltd, Sony Music Entertainment Ireland Ltd, Universal Music Ireland Ltd and Warner Music Ireland Ltd to bring judicial review proceedings against the commissioner.

The disputed notice was issued by the commissioner after his investigation into a complaint from an Eircom subscriber.

The complainant insisted he was not engaged in any illegal downloading. But they had received a notification under the three-strikes agreement or "Graduated Response Protocol".


The protocol was agreed with Eircom after previous court proceedings by the record companies were settled in January 2009.

Under the settlement, the companies were to supply Eircom with Internet Protocol (IP) addresses of persons suspected of illegal downloading.

In January 2011, the commissioner notified Eircom he intended to investigate a complaint against it.

This complaint was by the subscriber who had received a notification but denied any illegal downloading.

Eircom carried out an investigation and told the commissioner in February 2011 it had discovered, due to a "minor technical issue", its notification to that subscriber and 390 others was incorrectly issued.

Eircom said it had amended its record to remove any record of infringement from the relevant accounts and had written to all the affected customers.

The technical error arose because, when clocks went back on October 31, 2010, a code change had not taken place, resulting in the incorrect notifications being sent.

But the commissioner contended the monitoring activities being carried out by Eircom as an agent of the music companies under the scheme were not permitted -- unless the internet users in question had consented to such monitoring.

On March 12, the judge will deal with an application to have the case fast-tracked by the Commercial Court.

There is a stay on a separate Circuit Court appeal by Eircom against the commissioner's notice.

Irish Independent