The graduated response system to tackle unlawful filesharing online, agreed as part of an out-of-court settlement between the Irish recording industry and eircom, was approved by the Irish High Court last month. Mr. Justice Charleton’s judgment concluded that the “parties can … lawfully proceed to implement the settlement”, though his judgment relates only to the specific question of compatibility with the Data Protection Acts 1988 and 2003.
eircom has now implemented the graduated response system on a pilot basis and details are available on its website. The FAQs say that IRMA will supply eircom with IP addresses which eircom will match to its customers, who will then receive warnings about alleged unlawful downloading. If warnings are ignored, service may be suspended for 7 days and the customer will not be charged for those 7 days of lost service. On a subsequent alleged infringement, service will be withdrawn for 12 months. If a customer disputes an allegation that their service has been used for unlawful downloading, they can appeal to the eircom, who “will consider all customer appeals on a case by case basis.”
The concerns about graduated response primarily arise out of disconnection on the basis of complaint, rather than court order, and that the sanction affects an entire household, rather than the individual alleged infringer. The latter point has gathered steam as the internet has taken on utility status. IRMA’s attitude to this is clear:
The European Parliament has been talking about internet access as a basic human right. It absolutely is not.
Dick Doyle, IRMA Director General
eircom emphasises that customer data will not be shared by eircom with any other party.
Under no circumstances will eircom be handing over customer details to any third party.
It is also stated that eircom won’t monitor network usage and that “[t]here are strict privacy laws that prohibit eircom from monitoring the online activities of individual customers.” Monitoring will be done by DtecNet on behalf of IRMA.
However, in the overview, eircom states:
IRMA will send eircom notifications containing among other things the IP addresses of individuals they have detected as engaging in illegal file sharing in breach of copyright.
One wonders what those “other things” might be. Charleton J. said:
Neither DtecNet, or any similar service of detection, nor any of the plaintiffs whose copyright material is being infringed would ever know through this process that the infringer is a particular person living in a particular place in Ireland. What they do know is that a particular IP address has been involved in the downloading.
However, DtecNet’s website states:
DtecNet’s solutions will automatically secure evidence against the infringer(s) and generate Cease & Desist letters that can be sent to the infringer(s) asking for immediate removal of the content.
This is a capability of their systems, not a detail of the IRMA/eircom agreement. But nevertheless, it appears that IRMA may be capable of gathering more than just IP addresses of alleged infringers. eircom might not share customer data with any other party, but it is not clear what data will be shared with it.