IRMA slanders Blacknight (or do they?)

Soooooooo stupid (and verging on slanderous) they are that they have taken to writing to Irish ISP’s (not just those that provide Internet access, but also hosting companies like Blacknight).

The generally understated and considered Michele Nealon of Blacknight.ie must have been a bit pissed off with this – as he has posted it for you all to have a look at. Let’s have a look at it shall we (legal interpretation is free of charge):

Re: Illegal filesharing on the Blacknight network

Is this slanderous? Me thinks yes, but let’s read on…

Pursuant to the Copyright and Related Rights Acts…

A paragraph telling you what the Act is. I am a bit confused because you can get a copy of the act on Irish Statute in it’s entirety without some wannabee ambulance chaser paraphrasing it. Basically they are saying “…if you have been notified that you are facilitating copyright infringement and do nothing about it, you can be prosecuted under the act…”. My question: is this a notice that Michele is facilitating copyright infringement? Is there smoke without fire?!

Irish and European Law…

More of the bleedin’ obvious: Irish and EU law allows the courts to injunct people found guilty of breaking the law. NO SHIT HELEN! (Of course the message in the letter is specific to copyright infringement, but that is the gist of it.)

The Supreme Court…

When implementing an EU Directive, member states should interpret their national laws in such a way as to achieve the goal of the directive. (Will Helen Sheehy, of Sheehy Donnelly Solicitors, ever get to a point? No wonder Michele was so pissed!)

In this context…

“We think we can get the courts to inject ISP’s to remove and/or restrict access to copyrighted material.” You can think what you want, but the courts will decide pal!

In attempting to protect its rights…

“We tried to go to court and get an order directing ISPs to give us the names and addresses of people illegally sharing copyrighted material, but it was fuck all use and a complete waste of court time and resources.” Perhaps you should consider what is a waste of time and money – i.e. this piece of correspondence.

You will be aware…

“Eircom agreed to take it up the ass from us.”

The settlement agreement provides…

(You all know about this, but I wonder what the relevance of a third party agreement is to Blacknight… perhaps I should finish reading…)

It is the position of our clients that by this agreement eircom (sic) have agreed…

Surely you should ask Eircom that…? (P.S. Helen – Eircom is a proper noun – Capitalise It!)

Please confirm that Blacknight will also work with the record industry … (and) operate a similar graduated response and that it will disconnect the subscriber in default of compliance.

Comply with a private out-of-court agreement between two companies that have nothing to do with Blacknight? Why?

We should add by way of elaboration that it is not intended that there be any disclosure to our clients of the identity of the persons(s) denoted by the IP addresses at the time in question

Of course not – that would be illegal under privacy laws and it is illegal to encourage someone to break the law. Apart from that a person is not denoted by an IP address any more than they are denoted by their telephone number or by the name tag on their underpants.

In the event of a positive response to this letter…

Good luck with that!

In the event of a negative response to this letter, section 40(4) of the Act will be invoked against Blacknight and proceedings instituted.

We are writing to other ISPs in similar terms.

While we……..

Yours (blah, blah, blah…)

Let’s see – section 40(4) of the Act:

…where a person who provides facilities referred to in that subsection is notified by the owner of the copyright in the work concerned that those facilities are being used to infringe the copyright in that work and that person fails to remove that infringing material as soon as practicable thereafter that person shall also be liable for the infringement.

Am I missing something here? At no stage in this letter did Helen Sheehy say that Blacknights facilities were being used to infringe copyright… or did she? In fairness the heading of the letter (“Re: Illegal filesharing on the Blacknight network”) could be construed as such, in which case the letter is clearly slanderous. If this letter is not a notice under section 40(4) of the Act, then what proceedings can be instituted.

I would imaging the courts might take the view that sending out a form letter to every ISP in Ireland and claiming it conforms to section 40(4) of the Act is a waste of time and a simple ambulance chasers trawl. In any event, the Copyright and Related Rights Act, 2000, is part of criminal law and as such, the normal rules of evidence, reasonable doubt and presumption of innocence apply…

…or were you missing that day Helen?

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