IRMA v. Eircom – Why ISP filtering for the music industry is a bad idea
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.
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.
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.)
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.
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.
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.