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 lawto implement a three strikes regime. Eventually, in an effort to avoid legal costs, Eircom caved andagreed 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 personbecause 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.