IRMA v. Eircom – Why ISP filtering for the music industry is a bad idea
March 11th, 2008
You might have noticed that the big music firms are suing Eircom, demanding that it put in place a system for monitoring peer to peer filesharing and blocking transfers of their music. We think that this is a bad idea. Here’s why.
Intermediaries, not police
Internet Service Providers (ISPs) are intermediaries. They are not, in law, responsible for what internet users do, any more than An Post is responsible for what individuals send in the mail. In fact, European law specifically states that they may not be put under a general obligation to monitor the information they transmit. This action undermines this principle and threatens the privacy of internet users – in much the same way as if An Post had to open and examine the contents of every letter they carry. Here’s what the ISPAI had to say about this:
The Association is totally opposed to any obligation (such as that apparently in this Belgian court decision) that ISPs should monitor all of their customers’ Internet communications on the off-chance that someone may be distributing copyrighted work which they do not have permission to use. (How is an ISP, or any other third party, to know whether a communication is copyrighted, who owns the copyright or whether permission has or has not been granted?)
The privacy of all personal and business communications is at stake here. This is the electronic equivalent of the post-office steaming open every letter in the sorting office, checking the contents and never delivering the bits some unknown worker believes should be censored. If legislation forced ISPs to monitor, never mind the democratic or moral issues, in practice everyone would immediatly switch to encryption rendering any such monitoring useless, the monitoring process itself would slow the Internet to an unusable snail’s pace.
Privacy
This technology will result in ISPs being obliged to monitor everything internet users do – in effect, acting as private censors for all users without any warrant or even mere suspicion that a particular user is doing something wrong. If the music industry has evidence that a particular person is sharing copyrighted files then they can and already do take action against that person. If they do not have that evidence then they should not be demanding that ISPs monitor innocent users.
Cost
Estimates based on other jurisdictions suggest that, if successful, this action will cost Eircom at least €3,300,000 per year – which will be reflected in higher costs for Irish broadband subscribers. It is remarkable that the music industry – private, profit making companies – now seek to have Irish broadband users pay for the costs of its enforcement. (This figure is based on the Belgian case Sabam v. Tiscali where it was found that using Audible Magic to filter would cost approximately €6 per user per year. Eircom has approximately 560,000 broadband subscribers. Of course, this may be a complete underestimate of the costs if Eircom has to redesign its network to facilitate monitoring.)
Overblocking
This filtering technology is not perfect. Some copyrighted files will slip through the net. But more worryingly, many perfectly legitimate files are likely to be blocked. Files that are out of copyright, excerpts used for documentary purposes, even home videos where music is playing in the background – all of these are likely to be blocked by this technology, infringing freedom of expression.
Damage to Irish knowledge economy
This action will harm Ireland’s reputation as a web- and internet friendly country. By requiring companies to police the actions of their users – a duty which they are not subject to in other jurisdictions such as the US – it will harm inward investment and encourage technology firms to relocate elsewhere.
Futility
The music industry’s proposal is technically very easy to circumvent. If implemented, Irish file sharers will simply move to encrypted peer to peer systems, which are impossible for the ISP to monitor. This will completely negate any benefit of the system while still leaving Irish consumers to pay its costs.
Function creep
Once a system is in place to monitor internet users and prevent them from transmitting certain things, what other interests might like to take advantage of it? Who else might like to block certain files? The Church of Scientology, for example, has a track record of trying to silence criticism by claiming that its copyright has been infringed, while the makers of electronic voting machines have also abused copyright law to try to conceal flaws in their technology.
Entry Filed under: DRI
25 Comments Add your own
1. Record Companies vs. Eirc&hellip | March 11th, 2008 at 7:02 pm
[...] Follow any comments here with the RSS feed for this post. Post a comment or leave a trackback: Trackback URL. « ISME Survey on WebDesign [...]
2. Ronan | March 12th, 2008 at 11:01 am
Having read the Scarlett judgment one would hope and expect that the Irish courts are more aligned with the nations policy expectations in respect of competition and investment.
Circumvention, open access and a couple of equitable issues arise in my mind.
Ronan
3. Jack | March 12th, 2008 at 1:07 pm
This is exactly the sort fo thing which shouldn’t be happening.
Peer to Peer file sharing is not necessarily breach of copyright. Many software packages (linux distros for example) are made available via peer to peer download to distribute the load. Not even all mp3’s are illegal to share. If the ISP is to block sharing of copyright content, without blocking sharing of legitimate files, it will need to have an understanding of the nature file being shared. Any technical solution to this will be intrusive, expensive and possibly detrimental to the performance experienced by the end user – and as mentioned it will be easy for users to circumvent.
Will our high court appreciate this?
4. A. Programmer | March 13th, 2008 at 5:05 pm
Does Ireland have the equivalent of “amicus curiae” briefs? Can digitalrights.ie be filing one if so?
5. robert.schuppenies.de - w&hellip | March 13th, 2008 at 8:59 pm
[...] IRMA v. Eircom – Why ISP filtering for the music industry is a bad idea [...]
6. robert.schuppenies.de - w&hellip | March 13th, 2008 at 8:59 pm
[...] IRMA v. Eircom – Why ISP filtering for the music industry is a bad idea [...]
7. Digital Civil Rights in E&hellip | March 14th, 2008 at 12:13 pm
[...] Digital Rights Ireland, IRMA v. Eircom – Why ISP filtering for the music industry is a bad idea (11.03.2008) http://www.digitalrights.ie/2008/03/11/irma-v-eircom-why-isp-filtering…; [...]
8. IRMA v. Eircom - Why ISP &hellip | March 15th, 2008 at 3:57 am
[...] AJ wrote an interesting post today onHere’s a quick excerptYou might have noticed that the big music firms are suing Eircom, demanding that it put in place a system for monitoring peer to peer filesharing and blocking transfers of their music. We think that this is a bad idea. Here’s why. … [...]
9. David | March 16th, 2008 at 3:08 am
This is preposterous. I would seriously lose any faith in the Irish government if they bowed down to these companies and forced ISPs to implement this new filtered censored version of the internet. Because thats basically what it is. But hopefully our government realizes the consequences of such actions if it was implemented and stop it. The judges should send these companies making the lawsuit with their tails between their legs, and explain to them that this is IRELAND. And in IRELAND, unlike the US and JAPAN, large corporations do not dictate changes in its citizens privacy laws. Its also extremely unfair on Eircom. Its like suing car manufactures for the actions of drunk drivers.
A shocking reality check to those music firms: It is not up to the Irish government to create laws and policies to artificially support antiquated and outdated business models.
10. Lex Ferenda » Blawg&hellip | March 17th, 2008 at 12:04 am
[...] Irish techie eyes are not smiling, though, at the news that the major record labels are seeking a court order to compel ISPs to implement a particular filtering system to prevent ‘illegal downloading’. The Digital Rights Ireland blog has the full story and Jim Carroll has more. Another Irish case sparking interest across the globe is Goodfellas v Irish News, reported by Eoin O’Dell here (also discussed at Blurred Keys, The Fatalist, Salut! and the Illinois Business Law Journal; special points for the Simpsons reference in that last one) . Eoin also has a series of posts on the abolition of criminal libel and the progress of the Defamation Bill at his blog, cearta.ie. [...]
11. Anonymous | March 18th, 2008 at 10:32 pm
Nobody has commented on how the “Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993″ applies to this action.
It would appear that there is a strict interdiction on ISPs doing such snooping without individual court orders or statutory requests on an individual basis.
Any views?
12. Administrator | March 19th, 2008 at 12:30 pm
Anonymous – You are probably right. It’s worth pointing out that the 1993 Act must be read in conjunction with section 98 of the Postal and Telecommunication Services Act 1983 which is slightly wider in that it prohibits “listening to, or recording by any means, or acquiring the substance or purport of, any telecommunications message”.
A very similar issue is currently being debated in the UK in relation to the Phorm plans to monitor web browsing at an ISP level in order to serve up custom ads – the FIPR have suggested that this amounts to a breach of the equivalent UK provisions.
13. popper | March 21st, 2008 at 11:54 pm
admin: now that you mention it, i was looking for any and all input for this Phorm from any EU wide orgs and statute and how they might help bring the EU part of this into the UK RIPA, DPA and copyright.
i find it amusing that infact the personal data property of the UKs ISP users might be commercially pirated for the UK (and soon the US) ISPs and Phorms gain is in total opposition of the copyright acts and the intermediaries protection they want to keep.
when the UK (and US) ISPs roll out this profiling for profit , wil they automaticly loose they right to intermediaries protection under that European law above ?
are any EU DR or other EDRI members looking to help in this consumers V ISP/Phorm fight ?
perhaps you and they could come and post on the cable forum thread http://www.cableforum.co.uk/board/12/33628733-virgin-media-phorm-webwise-adverts-updated-page-108.html
were we are trying to keep track as many lines of comment as we can in one place to stay informed, and diseminate information to all effected by this profiling for profit.
14. Administrator | March 22nd, 2008 at 4:28 pm
popper – The Open Rights Group seem to be on top of the Phorm issue. Unless we find out that an Irish ISP is deploying the technology, I don’t think DRI has much to add. The provision you’ve cited on that thread is limited to Irish law. RIPA is a much more complex statute. Incidentally, the underlying European law is the privacy in telecommunications directive, 2002/58/EC, which you might like to have a look at if you haven’t already.
15. popper | March 22nd, 2008 at 10:04 pm
many thanks, that EU law URl is very interesting.
Be vidulant of Phorm in the irish ISP market, it seems you would have a large enough ISP candidate for them to target that boardroom(s) executive for the hard sell,if they have’nt already.
16. steve | April 30th, 2008 at 10:42 pm
p2p is not illegal at all its merely just some forms of content ie movies and music these idiots think they can bully everyone into feeding there greed the thing is the world is moving on without them and they r affraid the thing is the music industry signed its own death warrent when it set the riaa ifpi bpi and the new threat to ireland the irish recording industry this will be laffed out of court there is no legal obligation for an isp to spy on its users even the goverments need a warrant for such tactics why should the music industry have the power to attemp this oh and no harm but tell me i must do something that will cost my buisness money i will tell you to slide on fight them all they way eircom and consider hitting back once you have won!
17. Recent Links Tagged With &hellip | October 10th, 2008 at 3:49 am
[...] public links >> digitalrights IRMA v. Eircom – Why ISP filtering for the music industry is a bad … Saved by stephiliz on Wed 08-10-2008 Δελτίο τύπου για τη [...]
18. Digital Rights Ireland &r&hellip | January 29th, 2009 at 3:39 pm
[...] has (at least for the time being) been dropped – and in case you’ve forgotten, here’s why it’s a bad idea. But this new three strikes system has the potential to be just as bad. [...]
19. hhh | January 29th, 2009 at 3:54 pm
Any way around this privacy intrusion???????
eg IP changing software/websites?
20. uli | January 29th, 2009 at 9:46 pm
Use Steganos Internet Anonym to hide IP
21. Mickelodian | February 26th, 2009 at 7:56 pm
This is a silly arguement. Anyone who is NOT downloading copyrighted material illegally will end up complaining… then sueing the ISP (Not IRMA) for intrusion into their privacy… a single court case will have one lucky winner walk with a bag of dosh…after which the ISP’s will tell IRMA to sling their hook!
Anyone who is downloading illegal copyrighted material will simply pay €10 a month (or as low as €2 a month) for a VPN server which encrypt with 1024 bit encryption the data from the VPN throught the ISP’s network to the users machine.
In other words the software emplyed by Eircom to sniff and stop the data will ONLY hurt the innocent and will never threaten the guilty.
22. Mickelodian | February 26th, 2009 at 8:02 pm
ohhh one other point VPN sertvers hide your ISP assigned IP number with their own… and VPN servers NEVER keep logs!
see Strong VPN but there are also tons of other companies like this one….
the downside of course is that you must choose a VPN server which you trust. Remember it is technically possible for the VPN server company to arrest all communication through their server… some of course give you a 1024bit encryption key… only you have the key…so even the VPN server company cannot access your data stream.
23. B Monabury | March 6th, 2009 at 2:07 pm
Interesting – The attached article outlines the fact that even though a user may have ‘upgraded’ the default eircom WEP security – a hacker may have already compromised a system and opened a ‘backdoor’ . Based on that how can eircom ‘police’ the p2p and mp3 – or worseissues .. when it can be legally argued that the broadband connection was breached !
http://www.kerryman.ie/news/your-computer-is-at-the-mercy-of-hackers-1660476.html
24. techmodelrailroadclub.com&hellip | June 21st, 2009 at 5:46 pm
[...] The Sunday Business Post – Music-swapping sites to be blocked by internet provider Digital Rights Ireland – IRMA v. Eircom – Why ISP filtering for the music industry is a … [...]
25. Luego de SOPA y PIPA ¿qu&hellip | January 20th, 2012 at 5:49 pm
[...] irlandesa representada por la Irish Recording Music Association (IRMA). IRMA requería a Eircom filtrar material protegido por derechos de autor dentro de toda su red de usuarios. En febrero de 2009 ambas llegaron a un acuerdo extrajudicial [...]
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