The Irish High Court ruled on April 16 that cutting off the Internet access of suspected P2P pirates was fine, that no data privacy rules would be breached by doing so, and that such schemes are needed because "the mischievous side of the human personality, containing a repulsive aspect as well as an attractive and humorous one, has also come to the fore over the Internet."

When the major music labels in Ireland sued Eircom, one of the country's largest ISPs, the case was eventually settled out of court. The labels wanted Eircom to take some responsibility for the file-sharing behavior of its subscribers, and the company agreed to implement a voluntary three strikes system that would result in Internet disconnection. This made the lawsuit go away, but the Data Protection Commissioner of Ireland raised objections to the proposal, and the country's High Court was asked to weigh in on its legality.

That judgment has just arrived, and it pulls no punches. Mr. Justice Peter Charleton refers to illegal downloads of music and movies with a wide variety of synonyms: theft, stealing, filtering, "plague of copyright infringement." He has already approved an Eircom block of the entire Pirate Bay website.

When it comes to the actual technology involved here, the justice betrays a certain lack of confidence. "Again, reviewing the evidence that I heard in this case, it seems to operate like this," he says, trying to describe P2P technology. Or again, "As I understand the evidence that I heard..." Or again, "One can find out by looking at the IP number, I understand..."

The justice refers to legal alternatives to illicit downloading, such as "an I-player system," when he's writing about the BBC's well-known iPlayer catch-up service. He refers numerous times in the order to "DetectNet," a company which can find P2P infringers, when he really means DtecNet. A strong grasp of the technical details won't be found in this ruling (though the broad understanding of the issues appears to be correct).

Much odder still is the fact that, though this case turns on questions of data privacy, Ireland's Data Protection Commissioner did not even testify. Why not? "The Data Protection Commissioner did not appear because of the concern over indemnity as to his costs." Awesome.

No problems here



Shutting off Internet access seems like a heavy-handed remedy to the (real) issue of online copyright infringement. Given the incredible utility of the Internet, which is used to do everything from making phone calls to paying bills to sending e-mail to watching video to playing games to conducting commerce, cutting off a connection completely over the downloading of music raises questions about proportionality. Those questions are obviously stronger when applied to a household, where five people might share this crucial resource but only a 14-year old daughter has decided to download some Justin Bieber tracks she heard on the radio.

Mr. Justice Peter Charleton

And to do it all without judicial oversight or judicial appeal—could that be fair? (Eircom's approach does allow a private appeal to the company, which has the last word. The labels have undertaken similar lawsuits against other ISPs, seeking to make the scheme a national one without having to actually pass a law.)

The French Constitutional Council said "no" when the government tried to mandate a similar scheme there; the law had to be reworked in order to add oversight. Similarly, the European Parliament has objected for years on the same grounds. None of that has any resonance with the Irish High Court. The sharp legal reasoning behind the Irish decision? " Some would argue that it is an imposition on human freedom. There is no freedom, however, to break the law."

In the long history of strawmen, this statement must rank pretty high on the list. The issue isn't about "freedom to break the law," but about proportionality. Does the punishment fit the crime (which is not, in this case, even a "crime" but a civil matter)?

The justice's one clarifying remark is that "most people in Ireland have only to walk down to their local town centre to gain access for around €1.50 an hour."

But the real issue here is data protection, and that's where the bulk of the ruling spends its time. Because the Data Protection Commissioner didn't show up, the judge relied exclusively on a five-paragraph letter sent from the Commissioner to the music labels in December 2009. The letter asks whether IP addresses might be "personal data" and therefore might fall under Irish data protection legislation. It also asks if a judge should be involved in disconnections.

In a wide-ranging analysis that invokes both Saint Colmcille and European law, the judge concludes that no, data protection laws don't enter into this. Furthermore, judicial oversight is not needed because "no one is accusing anyone of an offense. There is no issue as anything beyond civil copyright infringement." Unlike in France and the UK, the Irish situation is voluntary; the government is not compelling any of this behavior.

The conclusion: "yes, the graduated response process is lawful," and Eircom can proceed to implement the settlement after a six-month delay while the decision was awaited.

Willie Kavanagh, Chairman of Ireland's major label music trade group, called it a great day for the country. "The whole music industry, including performers, composers and record labels, has been decimated by illegal peer to peer traffic and our losses amount to over €60m per annum," he said. "Our industry has lost 40 per cent in sales value between 2005 and 2009 with devastating effects on artists and creativity. Today's decision is the first step back towards allowing artists to make a living again."