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Ridiculous Ruling In Ireland Requires ISP To Kick Those Accused (Not Convicted) Of File Sharing Off The Internet

from the because-piracy! dept

There just seems to be something about the way that some people’s brains function (or not) when the word “piracy” is introduced. Over in Ireland, there’s been an incredibly long running battle over whether or not internet access providers need to kick people off the internet if they’ve been accused (not convicted) of file sharing three times. Such “three strikes” rules have been put in place in a few countries, and the evidence shows that they don’t work at all. Not even in the slightest. They don’t slow down the rates of piracy for any extended period of time (sometimes they show a very brief drop before people figure out other ways). They certainly don’t lead more people to buy content. France, famously, led the way with the very first three strikes law, which the country has already dropped.

Over in Ireland, the fight over three strikes has been going on for nearly a decade. Back in 2008, the recording industry sued Eircom, the large Irish ISP, claiming that the company was required by law to implement a three strikes regime. Eventually, in an effort to avoid legal costs, Eircom caved and agreed to implement a three strikes plan, but with a condition: the recording industry also had to pressure competing ISPs to implement a similar plan so that Eircom customers didn’t go fleeing. The recording industry did just that. The ISPs pushed back and seemed to be vindicated when the Irish Data Protection Commission ruled that a three strikes plan violated consumer privacy, and Irish judges found no legal basis for such rules.

Of course, the recording industry fought back, and a court flat out rejected the Data Protection Commission’s findings, and insisted there wasn’t any privacy issue at all with three strikes.

And, thus, we get back to the lawsuits against ISPs with a judge now ruling against ISP UPC and making some rather astounding statements in the process. The judge, Brian Cregan, appears to have become a true believer in the myths that the recording industry is spreading, and to him “piracy” seems to justify any and all punishment, without any clear concern as to whether or not anyone’s actually broken the law, or whether or not three strikes plans even work. These quotes are fairly astounding:

Mr Justice Cregan said that there was “wholesale theft” taking place on the UPC network. He said that 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.

Except, that’s not true. Copyright infringement and “theft” are two separate (and very different) things. And, no constitutional rights are “being destroyed” at all. If someone’s rights are being harmed via copyright infringement, those individuals or companies have every right to bring legal cases against those who are the ones actually engaging in infringement. Arguing that ISPs should automatically cut people off of the entire internet based merely on accusations (that have a long history of not being accurate) would seem to be “destroying” the due process rights of many more people than any copyright infringement. Besides, I would also think that “a matter of great concern to any civilized society” would be things like “due process” and better enabling communications and access to information for all — like the internet does. But, no. If you happen to download a song you like without paying for it, apparently you should be barred from the internet.

“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.?

Two points on this. Any realistic look at “the current generation of writers, performers and interpreters of music” would recognize that it is an amazing time to be a creative person because of the internet. Thanks to the internet, artists no longer are solely reliant on giant gatekeepers to pick them out of everyone else. Instead, they can use these platforms to create, to connect with fans, to promote, to distribute and to monetize their works. More words are being written, more videos are being filmed and more music is being recorded today than any time in history. It’s difficult to see how one can possibly square that reality with this fantasy world of Judge Cregan’s in which he believes that writers, performers and musicians are in trouble.

The reality is that it’s merely the business models of the old gatekeepers that have been challenged. But that is the nature of the free market. If you cannot keep up with the changing times, you go out of business. But Cregan has apparently decided that the world should always look like it did briefly in the 1980s, and the internet upsets all of that, so clearly, it’s the internet that should go.

Not only did Judge Cregan decide that UPC needs to put in place a three strikes plan, but that it should have to cover most of the costs itself, apparently blaming the technology itself for the struggles of the legacy recording industry:

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.

Cregan is apparently so sure of himself on this issue — despite what appears to be an astounding confusion over what’s actually happening in the world, that he further rejected UPC’s argument that this is a matter for the legislature, not the courts. Instead, Cregan seems to believe that the courts can magically will into place a new regulation kicking people off the internet. He further rejected requests to refer this matter to the European Court of Justice, insisting that his interpretation of the law is plenty.

It is one thing to argue that a three strikes rule makes sense (despite all of the real world evidence to the contrary). But it is quite bizarre to then justify it based on additional claims about the state of creators today that are simply false. Is this how the Irish judicial system really works? Based on fairy tales and what the judge believes, rather than facts?

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Companies: eircom, ifpi, upc

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Comments on “Ridiculous Ruling In Ireland Requires ISP To Kick Those Accused (Not Convicted) Of File Sharing Off The Internet”

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Anonymous Coward says:

Re: "business models of the old gatekeepers that have been challenged"

Well if you cannot sell your product for more than you are producing it for you either need to produce it for less (ie cut your costs) or close up shop.

Its simple economics.

As an industry the Movie and Music companies are now competing with much more than in the 80s. They need to modernise their business models to compete.

Wendy Cockcroft says:

Re: "business models of the old gatekeepers that have been challenged"

Getting your content pre-paid by starting a fundraiser for it on a crowdfunding platform would solve the problem of getting it paid for. As would making some kind of deal with streaming platforms for a share of the revenue. Think outside of the box; why would people want to pay for this? Who are these people and how can you convince them to part with their money? Amanda Palmer manages it.

Anonymous Coward says:

Re: Re: Alternatively:

What I’m saying here is that anyone could use this to destroy the constitutional rights of anyone else. If you don’t want to SWAT someone to interrupt their life, you can just send a message to their ISP, along with a couple more over the next week from apparently different people, and get their Internet unhooked with no possibility of appeal or logic.

If you honestly believe that this is a good thing, then what you’ve just said is one of the most insanely idiotic things I have ever read, and everyone in this thread is now dumber for having read it.

Anonymous Coward says:

Re: Re: Some call themselves pirates.

You say censorship, others say comment moderation. The fact that Techdirt continues to not require a validated login to comment makes it more permissive of dissenting speech than most media sites (if they even still allow comments). How many of your precious industry sites even allow comments, much less anonymous and/or dissenting comments? Bitching about “censorship” on a wide open forum because comment moderation and community voting to hide useless comments makes your trolling less pervasive is like complaining that women don’t let you rape them.

Anonymous Coward says:

Re: Re: Re:2 Some call themselves pirates.

I’m not saying it’s equivalent in severity. It just gets the point across more succinctly than not using a simile. I could have said, “you don’t have Constitutionally protected rights to free speech on a private website, so complaining that you have to jump through hoops in order to abuse the comparatively tolerant forum, the community members, and its host is absurd, ironic, and sociopathic.”

Anonymous Coward says:

Re: Re: Re:2 Some call themselves pirates.

Well it kind of is:
1) It could be argued that novel, innovative distribution models (like Netflix was when it started) “rape” the media companies’ current business models.

2) For the media companies willing to adapt, it “enslaves” their business model to the consumer’s needs.

3) For those companies unwilling to adapt, it “murders” their business model (even though it’s more akin to “suicide” at this point).

So there you have it: “rape”, “murder” and “slavery”. /s

Mason Wheeler (profile) says:

He further rejected requests to refer this matter to the European Court of Justice, insisting that his interpretation of the law is plenty.

Wait… he can do that?!?

In the US at least, it’s not a judge’s prerogative to decide whether or not his decision should be appealed to a higher court; that’s up to the parties involved. You would sorta think it would work the same way in the EU, but… apparently not?

That One Guy (profile) says:

What constitutional right would that be again?

“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.”

If one person, or even many people, pirate a particular song, or book, or movie, then other people are still free to buy that song/book/movie. Other people are still free to listen/read/watch.

Nothing about piracy stops that. One person’s copyright infringement does not, in any way, stop another person from paying or getting something the ‘legitimate’ way.

As such, the only way that he could claim that piracy is ‘destroying constitutional rights’, is if he thinks that people have a constitutional right to be paid for each and every single use of their creation(or, as I’m sure is the majority of the cases, the creation of some poor sod that has signed their rights to you). A ‘constitutional right to profit’ basically, something I’m surprised that another country managed to beat the US to.

He further rejected requests to refer this matter to the European Court of Justice, insisting that his interpretation of the law is plenty.

Yeah, given they would probably stomp this ruling flat both because if you want to punish someone it’s generally required to actually prove guilt first, and because the internet is vital enough these days kicking someone off it would be like shutting off their water or electricity, I don’t imagine he would be too happy to have another judge show how wrong he is here.

Anonymous Coward says:

this guy is exactly why people go judge shopping. Eventually you find some idiot who should not be a judge who just makes stuff up. Copyright is not a constitutional right lol

Maybe in his small pea brain it is but it has no basis in reality just like his little ruling will not have an adverse affect on anything. Old people who don’t understand the internet are really becoming a problem.

mcinsand (profile) says:

constitutionally-protected rights

>>He said that the constitutional rights of “a whole class
>>of persons are not just being infringed but are being

I will agree with one of Cregan’s sentences, if not the way he was trying to use it. Yes, plaintiffs have constitutionally-protected rights, but defendants also have protected rights to due process, and he is working to destroy those rights of that entire class.

Emil Isanov (user link) says:

Malicious Targeting

Personally, I’m less concerned with constitutional rights being violated as much as I am with the direct abuse of this system to deliberately target certain websites and businesses. One website, for example, may provide advance reviews of pop culture products such as music, movies, and books. If the reviews are consistently bad to the point where the company putting out the products believes that their business is being harmed by the reviewer, they could easily just accuse the reviewer of piracy and have their site taken down. A system like this directly encourages abuse.

Anonymous Coward says:

This shows me that some people buy their degree, have others take their tests in school all to get a cushy job. There is no way this person actually went to law school, yes he got the degree but I bet he was not the student in the class taking the tests or writing his own papers. I am sure if you look hard you will find many 12 year olds with a better understanding of the law than this so called judge.

Peter (profile) says:

Is there any truth in rumors that a certain justices car has been seen suspiciously close to areas where drug dealing is taking place? That his bank account and credit cards may have been used for money laundering?
Perhaps his access to his car & money should be restricted until he can prove his innocence? Just to be on the safe side, no accusation of wrongdoing implied.

Uriel-238 (profile) says:

Funny, when I think of pirates

I think of the last refuge of social misfits amd crime-on-crime or crime-on-superdiskish-business practices (a la the predation on the Spanish Silver Train, or oyster pirates selling fish outside the licensed cartels).

This is before we get to Robert Newton’s captivating interpretation of Long John Silver in classic cinema.

Funny how media piracy falls into the same category, given that the predation is less on artists and more on the gatekeepers who are renowned for mistreating artists anyway.

Yar-har and fiddle-dee-dee…

Gothenem (profile) says:

I got the answer

So, the answer is, fight back with their own laws.

What you need:

1. Find every Irish IP rights organization.
2. Get two buddies.

Now, you and your two buddies all file copyright infringement claims against the rights organizations.

Sure, the organizations can get the courts to overturn it, but how long will they be without internet? Yep, accuse the rights organizations of copyright infringement and get THEM disconnected from the Internet.

That One Guy (profile) says:

Re: Re: There's a lot of commenters here who don't like pirates.

A pirate isn’t buying from you now, but if your work interests him/her enough, they may in the future.

Someone who purposely avoids your work, whether it be due to the fact that your creations are crap according to them, or because you yourself are the kind of person they want to avoid giving money and/or attention to is never going to buy from you, at least if they can avoid it.

See the difference?

Wendy Cockcroft says:

Is this how the Irish judicial system really works? Based on fairy tales and what the judge believes, rather than facts?

Irish woman here — don’t get me started. I’m so embarrassed by this, it’s as bad as the law firm charging for linking to their website.

The trouble is, we’re sort of conditioned to accept authority from an early age and it’s a very religious country. That’s why all the content industry lobbyists have to do is yell “Stop the thieves!” to get what they want. Once the politicians and judges have been convinced that they’re obeying a moral imperative, there’s no chance of getting them to listen to reason.

That’s why the notion of copyright as property is so pernicious. Until we take control of the narrative and convince people otherwise they will continue to genuinely think they are consuming other people’s property every time they experience content.

John85851 (profile) says:

What do we know about this judge?

It seems to me that a case like this proves that the judge is either 70 years old, out of touch with the electronic world, or both.
There’s no reasonable explanation for kicking anyone off of anything just because they’re accused of something. What ever happened to due process of law? If someone is accused of illegally downloading files, then provide proof in a court of law, find him guilty, and then punish him.

Does Ireland have any kind of constitutional right to due process? If so, who’s going to be the first lawyer to challenge this judge’s decision?

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