Music uploaders face legal action from record firms

People who copy music from the internet without paying artists or recond companies face the prospect of legal action following a High Court ruling yesterday.

The order, the first of its kind here, paves the way for music companies to sue 17 people whom they believe are illegally uploading thousands of music tracks onto file-sharing networks.

It was alleged a minimum of 500 songs were being uploaded from each of the 17 computers which were potentially available to millions of internet users.

At the Commercial Court yesterday, Mr Justice Peter Kelly ordered that Eircom and BT Communications Ireland Ltd disclose to four record companies within one week the names, addresses and phone numbers of the 17 persons who are subscribers to the two companies' services.

He noted an undertaking by the record companies that the information would be used only for the purpose of seeking redress for alleged infringement of the copyright of sound recordings and granted the orders on that basis.

The orders were sought by EMI Records Ireland Ltd, Sony BMG Music Entertainment Ireland Ltd, Universal Music Ireland Ltd and Warner Music Ireland Ltd, all members of the Irish Recorded Music Association (IRMA), who between them claim to supply some 78 per cent of the pop music CDs sold to Irish consumers.

Welcoming the court's decision, Dick Doyle of IRMA said uploading activities have made a substantial contribution to a €28 million decline in record sales here between 2001 and 2004.

In granting the orders, Mr Justice Kelly stressed there was no suggestion of wrongdoing by either Eircom or BT in the matter. They had not opposed the making of the orders but had sought undertakings, which the record companies gave, that the identities of the 17 persons will not be publicly disclosed except in the context of any legal proceedings which may be taken.

He said the four plaintiff companies belonged to IRMA which had retained a New York Corporation, MediaSentry, to investigate and gather evidence .

The judge said he was satisfied from expert evidence given to the court that certain computers connected to the internet via the defendant companies' facilities had been used to make sound recordings available to the public.

The investigating computer analyst had downloaded sample recordings and from these had been able to identify the internet protocol numbers of 17 computers. Only the defendant companies could identify the names and addresses of the holders of those numbers.

The judge said he was satisfied there had been a prima-facie demonstration of a wrongdoing, an infringement of copyright. While the defendant companies had duties of confidentiality to their subscribers under the Data Protection Act and other measures, those obligations could be legitimately breached by court orders.

Those rights must give way where there was prima-facie evidence of wrongdoing.

The judge added that he was also not satisfied that BT's policy here of informing any subscriber of whom complaints of copyright infringement were made of those complaints and requesting that they desist from such activity, was sufficient to deprive the plaintiff companies of their rights to seek redress.

BT had said its policy was effective in most cases and that the alleged infringements of copyright desisted. It also said that, in circumstances where it could not contact the subscriber, it discontinued service to that subscriber.

The judge said the policy did not deal with past infringements and could not deprive the plaintiffs of their entitlement to seek damages should they choose to do so. Mr Paul Gallagher SC, for the companies, had said they were unaware of the BT service but would avail of it. The record companies had claimed the Irish record industry now faces "a very real threat" from such uploading and copying activities.

Mr Willie Kavanagh, managing director of EMI Records, said the Irish market for sound recordings had suffered a decline in total sales from €146 million in 2001 to €118 million in 2004 and he believed a very substantial portion of that decline was due to the increasing availability of broadband internet access here.

He noted a survey carried out for IRMA in January 2004 concluded that some 250,000 Irish adults had downloaded music and only 1 per cent had claimed to have paid for it.

The survey also found that once people tried that source for music tracks, they used it more regularly. He was therefore concerned that activity would escalate.

Counsel for both companies cautioned that the name and address of the company's internet account holder may be different to the name of the telephone account customer.

In those circumstances, the information provided by the defendant companies might relate to an entirely innocent person as well as an alleged wrongdoer, they said.