FOUR MAJOR record companies have brought an unprecedented High Court action aimed at compelling Eircom, as the largest broadband internet service provider in the State, to take specific measures to prevent its networks being used for the illegal free downloading of music by computer users.
The case is the first here aimed at internet service providers, rather than individual illegal downloaders, and is brought against a background where the latest figures available, for 2006, indicate that 20 billion music files were illegally downloaded worldwide in that year.
The music industry estimates that, for every single legal download, there are 20 illegal ones.
Because of illegal downloading and other factors, the Irish music industry is experiencing "a dramatic and accelerating decline" in income, with the Irish market for sound recordings suffering a decline in total sales from €146 million in 2001 to €102 million last year, a fall of 30 per cent, Willie Kavanagh, managing director of EMI records (Ireland) and the chairman of the Irish Recorded Music Association (Irma) said.
He attributed a substantial portion of that decline to illegal peer-to-peer downloading services and the increasing availability of broadband internet access here. The record firms also believe greater availability of broadband will lead to a further escalation in the volume of unlawful distribution of recordings.
EMI is among the companies challenging Eircom's refusal to use filtering technology or other appropriate measures to block, or filter, material from its network that is being used to download music in violation of the companies' copyright and/or licensing rights.
The firms say specialised software, such as that provided by the US-based Audible Magic Corporation, can filter peer-to-peer traffic and block specified recordings from being shared.
The proceedings arose after Eircom told the companies last October it was not in a position to run the Audible Magic software on its servers. Eircom's solicitors also stated it was not on notice of specific illegal activity that infringed the rights of the companies and had no legal obligation to monitor traffic on its network.
Mr Kavanagh said that, "with the greatest of respect" to Eircom, it was "well aware" its facilities were being used to violate the property rights of record companies "on a grand scale".
Mr Justice Peter Kelly yesterday admitted the proceedings - brought by EMI Records (Ireland) Ltd, Sony BMG Music Entertainment (Ireland) Ltd, Universal Music (Ireland) Ltd and Warner Music (Ireland) Ltd against Eircom Ltd - into the list of the Commercial Court.
In the action, the companies want orders, under the Copyright and Related Rights Acts 2000, restraining Eircom from infringing copyright in the sound recordings owned by, or exclusively licensed to them, by making available (through Eircom's internet service facilities) copies of those recordings to the public without the companies' consent.
In his affidavit, Mr Kavanagh outlined measures by the record industry aimed at discouraging record piracy, including public awareness campaigns and legal actions against individuals.
He said legal actions brought against persons with the highest numbers of illegal files on their computers at specific times had proven costly and time consuming. The record companies believed selective legal action was not sufficient to safeguard their property rights and the deterrent effect of such cases was not enough to stop people using illegal services on a broad scale.
Mr Kavanagh said the reality for many young people was that they had never known a position where they actually had - as a practical matter, rather than as a matter of law - to pay for sound recordings.
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