Irish Judge denies Rights Holders 3 strikes injunction against ISP UPC
THE HIGH COURT COMMERCIAL
[2009 No. 5472 P]
EMI RECORDS (IRELAND) LIMITED, SONY MUSIC ENTERTAINMENT IRELAND LIMITED, UNIVERSAL MUSIC IRELAND LIMITED, WARNER MUSIC IRELAND LIMITED AND WEA INTERNATIONAL INCORPORATED
UPC COMMUNICATIONS IRELAND LIMITED
JUDGMENT of Mr. Justice Charleton delivered on the 11th day of October, 2010
I’ve never read a High Court Judgement in detail before, be it British or Irish. This one is about an injunction sought by the above referenced rights holders requiring Irish ISP UPC to implement a three strikes policy against alleged file sharers.
The judge goes into 78 pages of detailed analysis of the problem, technical measures that may be available and the law in respect of this issue.
This is a guy firmly in the camp of the Rights Holder industry. I’m not going to comment on the individual arguments he makes and whether they are in my judgement right or wrong. He has probably spent weeks researching it all and summing up. In fact as I’ve mentioned before to some extent I sympathise with the RHs plight.
The problem again comes down to the old innocent until proven guilty human right that we have all been brought up to respect. I could find no discussion in the document regarding the issue of proof of guilt of the broadband subscriber. He just assumes that the probability is that a family home PC has been used for the infringement.
Instead the judge concentrates on the proof that the ISPs network was being used. Moreover on page 38 he dismisses a UPC response that the individuals alleged to be file sharing “may or may not be our customers” as “not an honest answer”. Saying this he clearly does not understand the proof issue.
Fortunately Mr. Justice Charleton was unable to offer injunctive relief to the plaintiffs on this occasion because the law did not allow for it. The only thing he could offer under the law was to order a take down of any copyrighted material hosted by the ISP. This of course is not how the file sharing system works.
The judgement is worth a read if you have the time. My copy was provided via EuroISPA. I couldn’t find a link to it online so here it is. I will take it down if required.