‘To every cow its calf, to every book its copy’: Copyright and illegal downloading after EMI (Ireland) Ltd and Ors v. Eircom Ltd [2010] IEHC 108

Abstract

The decision of EMI (Ireland) Ltd and Ors v. Eircom Ltd [2010] IEHC 108 in the Irish High Court has attracted much interest as it gives effect to the private settlement reached between Eircom (the principal Irish Internet Service Provider) and four record companies, which provides that Eircom will adopt a ‘three strikes’ policy against its Internet subscribers. This means that those subscribers whose Internet protocol addresses have been detected as being the site of continuous illegal downloading have the potential to have their subscriptions completely ‘cut-off’ by Eircom. This is the first decision of its kind in the Irish jurisdiction as previously, actions that were taken by record companies were against individual illegal down-loaders rather than the conduits of downloading. The judgment was primarily concerned with the validity of the ‘three strikes’ policy in the light if Irish data protection legislation. In his decision, Charleton J. sweeps aside the concerns raised by the Data Protection Commissioner regarding the policy. The decision that the policy does not offend data protection law is, in itself, interesting (given the hostility towards such ‘three strikes’ policies in other European Union jurisdictions, most notably, France) – but the decision also raises interesting questions about the status of constitutional rights such as right of freedom of expression and to privacy in Ireland – in the face of the ‘three strikes’ policy.

Keywords:

• Irish Copyright Law
• illegal downloading
• data protection

Notes

Charleton J quoting St Colmcille's aphorism ‘Le gach bó a buinín agus le gach leachar a chóip’, in EMI (Ireland) Ltd and Ors v. Eircom Ltd [2010] IEHC 108 at paragraph 28.

EMI (Ireland) Ltd and Ors v. Eircom Ltd [2010] IEHC 108 at paragraph 9.

EMI Records (Ireland) Ltd, Sony BMG Music Entertainment (Ireland) Ltd, Universal Music (Ireland) Ltd and Warner Music (Ireland) Ltd v. Eircom Plc [2009] IEHC 411, decision of Charlton J., 24 July 2009.

Ibid. at p.2

EMI Records (Ireland) Ltd, Sony BMG Music Entertainment (Ireland) Ltd, Universal Music (Ireland) Ltd and Warner Music (Ireland) Ltd v. Eircom [2009] IEHC 411 Plc at p.3.

EMI (Ireland) Ltd and Ors v. Eircom Ltd [2010] IEHC 108 at paragraph 28.

Ibid. at paragraph 25.

Ibid. at paragraphs 27 and 28.

Ibid. at paragraph 29.

Nicola Lucchi, ‘Countering the Unfair Play of DRM Technologies’, Texas Intellectual Property Law Journal 16, no. 1 (2007): 32.

EMI (Ireland) Ltd and Ors v. Eircom Ltd [2010] IEHC 108 at paragraphs 40–41.