High Court, Sony Music & Ors v UPC Communications [2015] IECH 317

(1) The plaintiffs, Sony, Universal and Warner Music, sought an injunction to impose upon UPC Communications, the second largest Irish Internet access provider, an obligation to implement a "Graduated Response Strategy" (GRS) against UPC's subscribers allegedly infringing plaintiffs' copyrights online. The injunction sought was pursuant to s.40 (5A) of the Copyright and Related Rights Act, 2000 (as amended) (see above) requiring that the defendant take reasonable steps to prevent its subscribers from using the defendant’s internet service for the purpose of breaching the plaintiffs’ copyright in the plaintiffs’ sound recordings

(2) According to the court, the essential elements of a GRS are that "(i) the owners of the copyright send to the ISP a list of infringements with reference to specific internet protocol addresses; (The copyright owners can only identify the specific IP address. They cannot identify the name and address of the subscriber). However when this information is sent to the defendant, the defendant as the ISP can, using the IP addresses, identify the name and address of its subscribers. (ii) It then writes to its subscribers informing them that these matters have come to its attention. (iii) The second letter is a second reminder or threat of further action. (iv) The third step would be the suspension of the account for a week. (v) The fourth step would be the termination of the account."

(3) The Court granted an injunction as sought by the plaintiff imposing upon UPC an obligation to implement a GRS as the European "directives permit the courts of Member States to impose injunctions on internet service providers , . . .  even though ISPs are not regarded as liable in law for the actions of their subscribers," due the availability of a "mere conduit" defense. According to the injuction, the GRS cannot encompass any suspension or termination of users' accounts but only the disclosure of information to make a Norwich Pharmacal order to finally seek an accounts' suspension or termination. The GRS should encompass the following steps:

(4) Finally, the Court noted, on the issue of allocation of costs, that "because the defendant is the company which profits - albeit indirectly - because it derives revenue from its subscribers who are engaged in this practice, it is the defendant who should, in my view, be primarily liable for the costs." Therefore, according to the Court, UPC will be required to bear 80% of the costs estimated between €800,000 and €940,000. However, the plaintiffs may only send to UPC up to 2,500 infringment notifications per month.