A few years back, IFPI sued Irish ISP Eircom for not waving a magic wand and stopping infringement. It was part of the legacy entertainment industry's strategy to try to force ISPs into kicking people offline under a 3 strikes regime, even if they couldn't get a law to that effect (the two key places where this was tried were in Ireland and Australia). Eircom actually folded and agreed to start kicking its own customers offline on a 3 strikes (accusations, not convictions) approach, as long as the legacy recording industry also pressured its competitors to do the same thing. Of course, once Eircom started, it totally screwed up and sent a bunch of notices to people who were entirely innocent, triggering a governmental review. The end result was that the Irish Data Protection Commission rejected the 3 strikes system, over significant concerns about how it involved spying on customers.

The labels fought back... and have now won. A court has rejected the findings of the Data Protection Commission (DPC) and argued, amazingly, that there are simply no privacy concerns at all with having ISPs track what you do online. Well, that's not quite how the court put it. Instead, it said that there's no privacy questions involved in "the detection and punishment of individuals who engage in unlawful Internet file-sharing." Er... considering the whole issue that kicked this off was false accusations against those who did not engage in such things, it seems the judge is pretty confused. Furthermore, the judge seems to think that there's a way to spy on users, but only track their infringing efforts. The problem -- and the main privacy concern -- is not so much in the tracking of infringing activity, but all of the legitimate activity that gets tracked as well.

Perhaps Justice Peter Charleton should open up his own log files to the public so that we can see if he's infringing. There is, according to his version of things, no privacy violations there, because we all promise only to make sure he's not breaking copyright law.

The contentious nature of the "three strikes" response to unauthorized sharing of copyright materials can be seen by the legal battles being fought around it across Europe. That's particularly the case in Ireland, which has emerged as a key testing ground for the approach and its legality.

Back in 2009, the IFPI sued the ISP Eircom for copyright infringement, and the latter settled by agreeing to implement a three strikes policy. The Irish Recorded Music Association then started sending letters to other Irish ISPs demanding they do the same. One Irish judge approved the three strikes approach, but another judge ruled ISPs were under no legal obligation to implement it.

And now we have the latest twist in this continuing saga: Eircom has been ordered to halt its three strikes scheme in a ruling by the Irish Data Protection Commissioner because of concerns about users' privacy. This follows an investigation that was triggered by the earlier incident in which Eircom sent out first warning letters to innocent account holders.

However, this is by no means the end of the story. The Irish government is now considering how to plug perceived gaps in existing laws:

Minister of State for Enterprise Seán Sherlock is to publish an order early in the new year that is expected to allow music publishers, film producers and other parties to go to court to prevent internet service providers from allowing their customers access to pirate websites.

But as usual, the recording industry's demands are for ever-more extreme powers:

EMI Ireland recently warned the Government that it would take legal action against the State if the Government did not address the problem.

Its chief executive, Willie Kavanagh, is not ruling out going ahead with this if the statutory order does not give companies such as his a clear right to seek court injunctions against internet service providers that allow access to music and video piracy websites.

This attempt to pressure a national government into changing the law for the convenience of a group of companies unwilling to move with the times is troubling. The logical conclusion of this kind of thinking is to turn ISPs into the content industry's private police force, letting the former do the dirty work and get the blame, while the latter sit back and enjoy the benefits of their monopoly pricing.

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Ireland has been sort of a testbed for the recording industry's attempt to force ISPs to implement a three strikes law, despite a lack of legislation making it mandatory. Back in 2008, a bunch of labels sued Eircom, the largest Irish ISP for not magically stopping file sharing. While Eircom fought it for a bit, it finally "settled" by agreeing to implement a three strikes policy. Then things got a little strange. After Eircom agreed, the record labels sent notices to other Irish ISPs insisting that they, too, were obligated to put in place three strikes rules, because Eircom had done so. At that point, it was rumored that part of the Eircom settlement was that the labels would try to force other ISPs to also implement three strikes and, in exchange, Eircom would not publicly argue against any attempts by the labels to get three strikes into Irish law.

Thankfully, the other ISPs recognized they were under no such legal obligation, and fought back. Earlier this year, a judge ruled that Eircom's decision to implement three strikes did not violate privacy laws, but today the Irish High Court ruled in favor of one of the Irish ISPs, UPC, in saying that it had no legal obligation to implement three strikes. Unfortunately, the judge did trot out debunked claims that file sharing was some how destroying the industry, even as more and more evidence has shown the exact opposite. Still, it's nice to see that the labels are unable to force such rules on ISPs, especially outside of the legislative process.

Ireland has not implemented any sort of "three strikes" law for getting ISPs to kick file sharers off the internet, but don't tell that to the recording industry there. A little over a year ago, you may recall that the recording industry sued leading Irish ISP Eircom, claiming that its failure to stop file sharing on its network broke the law. That was quite a claim -- and about the only actual "evidence" was that because some execs from Eircom had some internal emails where they joked about piracy, then obviously the ISP was guilty. Rather than deal with an expensive court proceeding, Eircom quickly settled, and agreed to put in place a three strikes rule (despite being under no legal obligation to do so).

However, because Eircom was worried about the competitive nature of the industry -- and how users might flock to other ISPs, it apparently had the labels agree to go after other ISPs as well. In fact, very soon after the agreement, the local recording industry association (the Irish Recorded Music Association -- IRMA) sent letters to other ISPs falsely claiming that under European law, they too needed to implement three strikes -- to which those ISPs responded by pointing out the law said no such thing.

Apparently IRMA would like to put that to the test. It's now sued two other Irish ISPs: the second largest telco (BT Ireland) and the largest cable ISP, UPC Ireland. UPC Ireland seems ready to vigorously defend itself, noting: "There is no basis under Irish law requiring ISPs to control, access or block the internet content its users download. In addition, the rights-holders' proposal gives rise to serious concerns for data privacy and consumer contract law."

Irish ISP Eircom recently settled a lawsuit with the recording industry. The lawsuit itself was an oddity -- as it was the first time we could recall the industry actually suing an ISP over charges related to file sharing. The settlement, though, was quite troubling, as Eircom agreed to kick file sharers off the internet via a "three strikes" plan, despite the fact that many countries in Europe have said that it doesn't make sense to kick users off the internet -- and may actually be a violation of their civil rights.

However, much more troubling news is now coming out about the settlement. Reader eoinmonty alerts us to the news that IRMA, the Irish Recorded Music Association, has been sending letters to other ISPs throughout Ireland about the Eircom settlement, telling them that they should implement the same plan as Eircom, noting that it's "in accordance with Irish and European law." That's highly misleading. But, the really troubling part is the claim that the Eircom settlement includes an agreement by Eircom not to protest should IRMA demand that certain sites, such as The Pirate Bay, be blocked completely.

Other Irish ISPs are up in arms about this, noting that it's somewhat ridiculous to simply grant the recording industry free reign in deciding what can and cannot be blocked, without allowing ISPs to speak up against such egregious blocking. And, as some of those ISPs point out, it's particularly ridiculous to highlight The Pirate Bay, as it still hasn't been found to be illegal -- and certainly not in Ireland.

Last year, the IFPI sued Irish ISP Eircom for copyright infringement. This was quite a leap. While the IFPI, RIAA and other such organizations had been pushing ISPs to filter file sharing or cut off file sharers via a three strikes approach, this was the first time that an ISP was being sued for being actually liable for the infringement as well. The "evidence" appeared to be some internal emails where Eircom employees joked about piracy. That seemed like a stretch... but rather than go through a full lawsuit, it appears Eircom has settled. Reader eoinmonty points us to the news that Eircom has agreed to implement a three strikes policy as a part of the settlement. Interesting that this comes just days after the neighboring UK announced that it will not require three strikes policies from UK ISPs. Of course, now the IFPI and the record labels have a framework: sue ISPs, and then push them to implement three strikes as a part of the settlement.

A few different readers sent in the latest on the lawsuit that the major record labels have filed against Irish ISP Eircom. While the adversarial relationship between ISPs and the recording industry has been discussed for years, this is the first case in which the labels are directly suing an ISP for copyright infringement. Their argument, similar to the "inducement" rule that the US courts made up (it's not actually in any US law) is that Eircom was actively encouraging piracy. In the case, they used internal emails from Eircom execs where some execs jokingly talked about how piracy was good for musicians because it would reduce money for rock stars to spend on cocaine. Apparently, obviously joking comments are being used to establish intent these days. Either way, this seems like a weak case for the record labels. Plenty of people encourage piracy. It's not going to go away if all those people shut up. The industry needs to stop freaking out over the fact that piracy happens, and start focusing on actual solutions in the market.

Earlier this year, the IFPI was successful in convincing a court to force a Danish ISP to block access to the Pirate Bay. Rather than recognizing that this only helped drive more traffic to the Pirate Bay, the folks at the IFPI seem to have gotten it into their heads that the best course of action is to start suing ISPs for not stopping file sharing. Its first target is the large Irish ISP Eircom. Eircom points out all the obvious things: it has no idea what its users are doing on the network, it's just providing the network -- and no one had made it aware of any specific infringing activity. Rather than deal with those very reasonable questions, the record labels responded with the ridiculous "but you know it's happening!" response which we've heard all too often these days. Of course, knowing that unauthorized file sharing is happening on your network and being either liable or able to stop it are two very different things. Basically, the record labels seem to be admitting that they are unable to stop file sharing, so it must be someone else's job. Even worse, they seem to be saying that it's a legal responsibility of someone else to try to prop up their own failed business model. Talk about grasping at straws. I'm not sure if Ireland has laws like the US's safe harbor provisions protecting service providers from liability for the actions of users, but hopefully the Irish courts quickly realize how ridiculous it is to pin liability on an ISP and throw this case out. What's also partly disturbing is the fact that the "but you know it's happening!" comment comes from an EMI exec, just after we thought EMI was moving away from ridiculous IFPI lawsuits. Apparently not.