A recent ruling in Ireland's High Court, in with copyright holders tried and failed to force a local broadband ISP (UPC) into adopting a "Three Strikes" system of warning and disconnection for customers suspected of involvement with "illegal" P2P file sharing, has exposed serious weaknesses.

The case, which had been brought by the combined weight of EMI Records, Sony, Universal Music, Warner Music and Wea, was ultimately unsuccessful because the country failed "to provide legislative provisions for blocking, diverting and interrupting internet copyright theft".

The court also noted that attempts to disconnect customers could be in breach of European law, which might cause problems in the UK when the government has to consider expansion of its Digital Economy Act 2010 (DEA) rules to include "account suspension". This could occur in 2011 or 2012, depending on the perceived success or failure of its notification (Warning Letters) system; currently still working its way through Ofcom's consultation processes.

However the failings to which we refer in our title do not concern this. Instead the case itself revealed, above all else, that the legal system simply doesn't understand internet technology and Rights Holders (RH) are continuing to abuse that ignorance.

In particular the presiding Judge, Peter Charleton, completely failed to recognise the well known fallibility of using Internet Protocol ( IP ) addresses as evidence to identify an infringing individual.



We've said it before and we'll keep saying this. Related firms typically track alleged piracy by monitoring the Internet Protocol ( IP ) addresses of internet users, which is assigned to your computer each time you connect to the internet and made public on P2P networks. This is not an effective way of determining a computer user’s true identity and often results in wrongful accusations. The recent ACS:Law debacle showed exactly how fallible it can be (here) but was not referenced in this judgement.

An IP can easily be faked, hijacked, redirected and generally abused or used in ways that the systems employed by such trackers cannot spot. Furthermore the owner of a shared connection, such as in the case of a hotel, business or home Wi-Fi network (secure or not), is frequently not the individual responsible for the actual act itself.



Charleton also mistakenly believed that the well known "Notice and Takedown" legal policy of content removal could be used against P2P File Sharing services; "the only relevant power that the courts are given is to require an internet hosting service to remove copyright material". This is of course not how the P2P system works.

Interestingly Charleton did at least agree that UK Rights Holders were wrong to say that every unlawful download of a music track or movie would be equal to one lost sale. In summing up he used data from Mr. Dick Doyle, Director General of the Irish Recorded Music Association (IRMA).


Charleton didn't dispute the obviously biased source of this data and simply admitted to being "satisfied these studies are accurate and apply to Ireland". In keeping with this the judge believe that a "substantial portion" of UPC's 150,000 customers had been involved with copyright theft.

UPC claimed it has no liability in respect of this activity because it is "merely a conduit". The recording companies continue to disagree.