UPC ordered to take action against illegal downloaders

The High Court has ordered the country's second largest internet service provider to take measures to stop illegal downloading of music.

Mr Justice Brian Cregan granted three music companies an injunction requiring UPC Communications to move against its subscribers involved in internet piracy.

The Irish companies of Sony Music, Warner Music and Universal Music sought the orders.

Mr Justice Cregan adjourned the case until next month to allow the parties prepare a submission on how his order is to be implemented.

It will include what sort of impartial arbitration system should be set up to deal with subscribers who seek to challenge termination of their service.

Under the court’s order, UPC must set up a computerised detection system within 12-15 months under which infringing subscribers are told their service will be terminated unless they stop the illegal downloading.

Under this automated software programme, UPC would receive monthly internet protocol (IP) information from the music companies. It would then automatically search UPC’s computer architecture to locate the relevant subscriber name and address.

UPC would then have to write two warning letters to those subscribers similar to a "three strikes" policy already used by Eircom whereby after the third warning the service is cut off. The judge said evidence suggested that when a subscriber receives such a letter under the Eircom system, it brings about a "significant reduction" in the numbers breaching copyright on the internet.

Mr Justice Cregan said the cost of setting up this system had been put at between €800,000 and €940,000, three-quarters of which UPC had argued should be paid for by the music companies.

The judge said, however, given the music companies’ constitutional rights “are being destroyed” by UPC’s customers, he believed UPC should pay 80 per cent and the music companies the rest. The question of whether this should be paid over eight years or less is one of the matters which will have to be considered in his final order.

In order to reduce the operating costs of this system to UPC - estimated at between €200,000 to €300,000 per annum - the judge said the number of warning notifications to subscribers should be reduced from 5,000 per month to 2,500.

The cost of an independent arbitration system for dealing with challenges to termination of service would have to be borne equally between the parties. A fair procedures system is required to comply with the European Convention on Human Rights and general principles of EU law, the judge said.

He said it was accepted by both sides there was “wholesale theft” taking place on the UPC network.

This was a situation in which the constitutional rights of “a whole class of persons are not just being infringed but are being destroyed”.

The downloading of music for free is destroying the intellectual property rights of creative artists and should be a matter of great concern in any civilised society, he said.

“The current generation of writers, performers and interpreters of music cannot have their livelihoods destroyed by advances in technology which allow persons to breach their constitutional rights with impunity”.

The judge did not agree with UPC’s argument that this is a matter for the legislature and not the courts.

He also did not agree with UPC’s argument he should refer an issue in this case to the European Court of Justice.