This week’s big intellectual property news was the judgment of Mr. Justice Charleton in EMI & ors v. UPC. The case was the latest plank in the record industry‘s campaign to force the introduction of a graduated response to online copyright infringement.

Charleton J’s judgment is long and there is a lot to get through.  I haven’t had the opportunity to read the judgement fully but a few highlights already stand out:

• Evidence was adduced by the plaintiffs to justify claims that many thousands of tracks are illegally downloaded. Justin Mason looks at some of those claims and finds that, by the same logic, an album he invented on the spot has been downloaded 24,752 times. This evidence, which appears to be highly flawed, has already been represented as fact in the Seanad.
• In 2009 Charleton J granted an order requiring eircom to block access to The Pirate Bay. As noted by TJ McIntyre at the time, the judgment was of limited value as it was not opposed by eircom and was delivered ex tempore. Simon McGarr points out that Charleton J now finds he was incorrect in granting that order. According to his latest judgment:

I regret that my previous judgement in the matter was wrong. The legislative basis enabling me to act in that way does not exist in Irish law as it exists in other European jurisdictions.

• If eircom had contested that order, Charleton J may have been in a position to reach the decision now indicated in the UPC judgement. It’s an important point, as he also gave judgment clearing data protection concerns raised by the Data Protection Commissioner in relation to the graduated response settlement. That case was similarly unopposed and the Commissioner did not appear due to cost concerns.
• Charleton J has repeatedly characterised online copyright infringement as theft and anyone engaged in downloading files in breach of copyright to be in the criminal sphere. Eoin O Dell draws attention to interesting posts on the question of whether or not copyright infringement is theft.

• Intellectual Property