Go Ask Me Bollix

Take note: Eircom are taking it up the ass potentially on your behalf…

(In case you been living in a hole for the past few months, this is the latest in the ongoing case between Eircom and EMI, Sony, Universal and Warner – the four main players in IRMA – the Irish Recorded Music Association – over alleged illegal downloading of copyrighted music.)

On January 28th Eircom agreed a settlement of High Court proceedings with four record companies over music downloads. The record companies have been alleging that Eircom were liable because they were doing nothing to prevent the “abuse” of their networks (including your Internet connection) by people illegally downloading copyrighted material (mostly music MP3’s and movies).

The Internet can be compared (in this case anyway) to the plain old telephone service. Eircom provide you with a telephone line and you use it to talk, fax even check your email. If someone uses the telephone to make death threats or to make libelious statements then is the person who made the statements culpable or the person who provided the telephone line?

Don’t like that analogy? What about the air all around us then? Air allows sound waves to travel between someones mouth and another persons ears. Who should be prosecuted in this case? God? And if you are an atheist copyright holder – where’s your remedy then?

Here’s the beef in the Irish Times article:

…the record companies will supply Eircom with the IP addresses of all persons who they detect illegally uploading or downloading copyright works…

Now I may be no high-flautin’-fancy-pants-lawyer, but aren’t there rules under which “evidence” can be collected? Linking an IP address to an alleged offence is no more an indication of guilt than perhaps being in an area when a bank robbery is committed.

Your IP address is like your telephone number. No more, no less. If you want to send information from one computer to another (for whatever purpose) you need to know it’s IP address. If you want to telephone someone, you need their telephone number.

Linking a conversation to two telephone numbers does not tie it down to two people. In the same way, your IP address belongs to a PC (or a modem), not to an individual. The Gárdaí know all about this. Linking questionable content (like child porn for example) to an IP address is not enough to prove a case. They’ll get a search warrant perhaps but no prosecution – and rightly so. Our constitution has a presumption of innocence, and let’s not forget that copyright infringement is a criminal act.

But, unlike your telephone number, your computers IP address can change quite frequently. Imagine how useful called ID would be if your telephone number changed all the time? Indeed, under the Eircom “agreement” it could be the case that you are approached by Eircom over the “abuse” of their network because the last person to have that IP address happened to download a few MP3 tracks.

(Un)coincidentally enough, in the U.S. similar bullying tactics have been used by the RIAA (the American equivalent of the IMRA) and (shock horror) who holds the main interest in the RIAA? Why non-other than EMI, Sony, Universal and Warner!

Ray Beckerman (a lawyer in the U.S.) has a blog page which deals with the U.S. angle in some detail – it is well worth a read. Is is particularly interesting to look at the different ways in which the RIAA deal with alleged infringement cases: for example in 2007 a single mother from Minnesota was ordered to pay USD 220,000 for sharing 24 songs online while the RIAA were having less success in tackling people their own size, as has been the case with some US Universities.

So if you are approached by Eircom with this kind of “evidence”, remember you have substantial legal rights and don’t need to take their word for it (and certainly not the word of EMI, Sony, Universal or Warner.) Let’s see some hard facts please. And let’s have some proper legal scrutiny of this crap.

So here is what will happen in this joint approach aimed at ending “the abuse of the Internet by  P2P (peer to peer) copyright infringers”!

Eircom will:

1. inform its broadband subscriber that the subscribers IP address has been detected infringing copyright;
2. warn the subscriber they will be  disconnected unless infringement ceases and
3. disconnect the subscriber in default of compliance with the warning

Eircom (stupid as they are) have recognised a pretty major hole in this agreement. Therefore:

The record compnaies (sic) have also agreed they will take all necessary steps to put similar agreements in place with all other internet service providers in Ireland.

This is a pretty typical tactic for the recording industry and mirrors similar tactics made in the past (see Beckerman’s site). They know that they have major problems with the burden of proof in individual cases, therefore they make loads of threatening noises in the hope that the victim will bend over and settle.

They had wanted Eircom to install software from a US firm that would detect the unique “fingerprint” of copyrighted music files being sent on its network, but Eircom claimed (rightly so) this would not be technically feasible.

In fairness if your internet connection is being filtered in any way, or if you find certain protocols or web sites are “broken” then in my opinion, you do not have a proper Internet connection and have redress under the Sale of Goods and Supply of Services Act, 1980 under the heading “fit for the purpose”, “merchantable quality” or “misrepresentation”.

Now a question for homework:

Do you think a Eircom will actually boot paying customers off their network or do you think that some poor sap will be held up as an example?

They better start thinking quickly because the Alternative Licensed Telecoms Operators (ALTO) group  (whose members include BT Ireland, Magnet Networks, NTL, Chorus, Smart Telecom, Budget Telecom, Cable & Wireless, Colt Telecom, Complete Networks, Digiweb, ESB Telecoms, Verizon and 3 Play Plus) have already released a statement signalling their less-than-enthusiastic response:

“While we obviously do not condone illegal downloading or any illegality on or over the internet, we firmly disapprove of any draconian measures that would compromise the privacy, speed or services offered to broadband users. We do not need measures to further impede the development of next-generation broadband in Ireland”

and

“We’re not party to the agreement with Eircom – we don’t know the details of agreement…”

And as we know only too well, Eircom aren’t the company likely to do anything that might affect their market position…

Funnily enough, Eircom’s News page has no mention of the “agreement” (no link provided because their crap website makes it impossible to link to them) while the IRMA have it screaming from their “Breaking News” page.

For more reaction, off to IrishBlogs.ie with you…

To mark the utter futility of all of this expensive High Court messing, check out the link to TOR - a free and Open Source programme that will guarantee your privacy and make the whole the argument between Eircom and the record companies meaningless.

For fucks sake, haven’t we had enough of pissing money up against the wall by now?