One of Ireland's largest ISPs, Eircom, has capitulated to the major music labels and agreed to implement a full "graduated response" program—complete with disconnections. Users get two warnings regarding file-sharing, and a third violation brings down the banhammer. The music industry has already said that it intends to pursue the same agreement with Ireland's other ISPs.
The dispute began some time ago when the Irish branches of EMI, Warner, Universal, and Sony filed suit against Eircom. They charged that the ISP was essentially aiding and abetting piracy by doing things like advertising its services on The Pirate Bay, and the labels believed they could get a judge to force the ISP to install network monitoring equipment.
With the trial finally under way at Dublin's High Courts this week, the labels and Eircom got together and hashed out a settlement instead of proceeding to judgment, and it's a settlement that keeps network sniffing gear out of Eircom's network. Instead, the ISP has agreed to send warnings and eventually to disconnect its users based on IP addresses provided by the music industry's investigators.
As with most graduated response programs, the deal keeps the music industry from gaining direct access to subscriber data or to ISP networks. Instead, investigators use common tools to observe file-sharing, then log the IP addresses in question (those that belong to Eircom, at least) and pass them to the ISP. Eircom looks up the account associated with that address at the time in question, then shoots out a warning.
Warning number one is friendly enough. Warning number two says that a disconnection will happen if the activity continues. Warning number three drops the A-bomb.
Weighing the evidence
While such graduated response mechanisms have the potential to be a huge improvement of massive litigation against end users, the process is generally understood to need some form of appeal or defense. It's not clear from the reporting coming out of Ireland that the Eircom agreement contains any such provisions. It appears that the music industry hands over its evidence, Eircom evaluates it, and a decision is made. Users, at least for now, seem to be shut out.
The need for a fair judicial process (even if a judge is not actually involved) is one that even Cary Sherman of the RIAA made clear in his recent interview with Ars on the topic of graduated response, which he is trying to hammer out on a voluntary basis in the US. And when it comes to a sanction as severe as disconnection, the UK made clear this week that it saw huge legal problems with turning such a process over to industry bodies.
But Eircom has agreed to the plan on a voluntary basis, without any government pressure. The move lead the Electronic Frontier Foundation to blast the ISP over its claim that it will consider the evidence presented by the music industry before shutting anyone off.
"The difference is that an ISP is not a court; and its customers will never have a chance to defend themselves against the recording industry's accusations and 'proof,'" said an EFF blog post. "To whom, without judicial oversight, has the ISP obligated itself to provide meaningful due process and to ensure that the standard of proof has been met?"
Eircom has apparently accepted the idea that the ISP has some responsibility for the actions of its users online. Assuming that the labels bring lawsuits against smaller ISPs, it is not yet clear whether any will be willing to risk the expense and hassle of a trial, especially when the music industry is seeking far-reaching judicial orders that would mandate network content filtering. Given the stakes, ISPs might well decide that graduated response, even with the tough disconnection penalty, is better than risking a loss in court.
The agreement sets Ireland alone, so far as we can tell. While the French HADOPI law could bring government backing to the three strikes idea (complete with disconnections), Eircom may be the only ISP in the world voluntarily cutting P2P users off without court orders. It also means that Irish labels are pursuing—and Eircom has agreed to—a plan that was explicitly rejected by the European Parliament last year (though the European Commission watered down this stance when it went over the bill in question).
While graduated response is now on the US radar screen, it's a delicate issue here. Our own attempts at getting answers about which ISPs might be involved have been met with stony silence (except from Verizon, which is not involved). In Europe, the debate is much more robust, as the UK, France, and Ireland all know, and it has been going on for years.
Eircom's willingness to disconnect users will certainly embolden both sides. The music industry will use one victory to push for more, while opponents will push even harder for the EU and national governments to put limits on the sanctions process.
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