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Irish High Court Ordered ISP to Implement Graduate Response Strategy

December 14, 2015
In Sony Music & Ors v UPC Communications, the High Court of Ireland ordered the second largest Irish Internet access provider, UPC Communications, to implement a "Graduated Response Strategy" (GRS) against subscribers allegedly infringing copyright.
The plaintiffs, Sony, Universal and Warner Music, sought an injunction to impose upon UPC Communications, an obligation to implement a against UPC's subscribers allegedly infringing plaintiffs' copyrights online. The injunction sought was pursuant to Section 40 (5A) of the Copyright and Related Rights Act, 2000 (as amended) 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
According to the plaintiffs requests, the essential elements of a GRS were 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."
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. However, 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:
  1. Step 1 - That the plaintiffs would furnish all relevant infringement information to the defendant and that the plaintiffs would bear the cost of this process.
  2. Step 2 - That the defendant, when it receives a first copyright infringement notification from the plaintiffs, would send its subscribers a letter setting out the infringement and requesting him/her to cease and desist.
  3. Step 3 - That the defendant where it receives a second copyright infringement notification would send a second letter to its subscriber requesting him/her to cease and desist.
  4. Step 4 - That the defendant, where it receives a third copyright infringement in respect of a subscriber from the plaintiffs, would send to the plaintiffs a notification that a subscriber account has been the subject matter of three such notifications.
  5. Step 5 - The plaintiffs, having been informed of a third copyright infringement notification and having been informed of the relevant IP addresses etc, could make a Norwich Pharmacal type application to ascertain the subscriber’s identity and address and the plaintiffs could then seek an order under s.40 (5A) for the suspension and/or termination of the subscriber’s service. Such applications would not be opposed or consented to by the defendant and the defendant would not seek its costs.
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 should be required to bear 80% of the costs.]
This article was originally published at the CIS Blog Irish High Court Ordered ISP to Implement Graduate Response Strategy
Date published: December 14, 2015
Topic, claim, or defense