Record labels and eircom agree "three strikes" policy

On 28th January 2009 settlement was reached between eircom, Ireland’s largest telecommunications operator and internet service provider (ISP), and four major record labels (EMI Limited, Sony Music Entertainment, Universal Music and Warner Group Music Inc). The record labels had instigated proceedings against eircom over illegal downloading and peer-to-peer file sharing. In 2005 the same four record companies obtained a High Court order requiring certain ISPs to reveal the identity of 49 customers; eircom’s position in the Irish ISP market was evident from the fact that 42 of the 49 subscribers concerned were eircom customers. However, the 2009 case against eircom reflects the international trend of record companies pursuing ISPs rather than their customers.

The settlement marked the end of an eight-day trial in the High Court. Full details of the settlement have not been released; however, it is understood that eircom will operate a “three strikes and you’re out” policy. This means that after being supplied with the IP addresses of suspected infringers by the record companies, eircom will twice warn infringers that their IP address has been detected infringing copyright. If these warnings are ignored or unheeded, eircom will proceed to disconnect the suspected infringers.

The settlement leaves a number of questions unanswered. For example, it is unclear whether other ISPs will agree to similar demands from record companies and there is considerable uncertainty over whether the current law requires ISPs to implement a “three strikes” policy when requested to do so by rights holders. Other ISPs may not want to follow eircom’s lead and there has been vocal opposition to the record companies’ campaign. The Internet Service Providers Association of Ireland has released a statement branding the record companies’ action as “spurious” and noting that the action:

“could impact on user privacy, damage the development of new internet services and hurt Ireland's standing as an e-commerce hub.”

Regardless of other ISPs, eircom's customer base is considerable. Earlier this month eircom’s mobile subsidiary, Meteor, launched a broadband service and it has reportedly been confirmed that it will apply the "three strikes" process. Therefore, it appears that some internet users will be subject to the "three strikes" process while others will not. Ultimately, a fairer and more uniform solution will need to be reached, perhaps on a legislative basis.

The UK government previously indicated that it would not support mooted legislation that would have introduced a "three strikes" process in the United Kingdom. Legal complexities associated with such a policy, alongside the practical difficulties of implementation, were cited as the reasons for rejection. In contrast, it is likely that the French government will proceed with legislation for its own "three strikes" process.