Is The UPC Decision A Victory?

Earlier today the Mr Justice Charleton’s decision in the case of EMI RECORDS (IRELAND) LIMITED, SONY MUSIC ENTERTAINMENT IRELAND LIMITED, UNIVERSAL MUSIC IRELAND LIMITED, WARNER MUSIC IRELAND LIMITED AND WEA INTERNATIONAL INCORPORATED
vs. UPC COMMUNICATIONS IRELAND LIMITED was made public.

There has been a lot of media coverage about the decision, with many headlines hailing it as a victory for UPC.

But was it?

While the “important bit” of the decision is that IRMA lost, the judge’s decision contains a lot of language that should be cause of concern.

The decision runs to 78 pages and gives a very detailed insight into the evidence presented and the conclusions the judge drew from them.

From a technical perspective I’d have to disagree with most of the honourable judge’s conclusions, but what really worries me is the closing paragraph of his judgement:

Solutions are available to the problem of internet copyright piracy. It is not surprising that the legislative response laid down in our country in the Copyright and Related Rights Act 2000, at a time when this problem was not perceived to be as threatening to the creative and retail economy as it has become in 2010, has made no proper provision for the blocking, diverting or interrupting of internet communications intent on breaching copyright. In failing to provide legislative provisions for blocking, diverting and interrupting internet copyright theft, Ireland is not yet fully in compliance with its obligations under European law. Instead, the only relevant power that the courts are given is to require an internet hosting service to remove copyright material. Respecting, as it does, the doctrine of separation of powers and the rule of law, the Court cannot move to grant injunctive relief to the recording companies against internet piracy, even though that relief is merited on the facts.

So what he’s saying is that he can’t decide in favour of IRMA now, as the legislation doesn’t exist. But, and this is the bit that scares me a lot, he feels that the lack of the legislation is a failing of the Irish state to enact legislation in compliance with EU law.

While it may be futile for IRMA to challenge the decision immediately it wouldn’t be in the least bit surprising to see them attempt to pressure the Irish legislature to enact the “necessary” legislation.

Or am I missing something?

In any case I’d recommend people have a read over the full text of the judgement, as it’s anything as simple and clearcut as some of the media coverage would lead people to believe.

If it is a “victory” for UPC I suspect that it may be only a temporary one.

Having dealt with IRMA in the past I somehow doubt they’ll give up that easily.

(You can also see some of my comments on today’s judgement here)

There is plenty of other coverage of today’s decision: