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Ireland's largest ISP to start 'throttling' illegal downloaders

Irish companies’ agreement to voluntarily deny filesharers Internet service seen as potential model.

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Mr. McIntyre is particularly angry that Ireland's digital landscape could be changed so sweepingly without public input.

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"In other jurisdictions, there has been public debate. There have been consultation papers in the UK, there has been legislation in France, there has been debate in the European Parliament, but in Ireland it's all proceeding in blissful secrecy behind closed doors."

Willie Kavanagh, managing director of EMI Ireland, sees it differently. His company joined Sony, Universal, and Warner in taking Eircom to court two years ago, and he says that illegal downloading has badly damaged the music industry in Ireland.

"Legitimate downloads and CD sales combined [dropped] from €146 million (about $208 million) a year to €102 million (about $145 million) a year between 2001 and 2007.... One-third of our market walked out the door in six years."

Why did they do it?

It's not easy to say why Eircom conceded so much to the record industry (How does the company view the deal? Click here.) It also agreed to voluntarily prevent its users from accessing filesharing sites like The Pirate Bay.

EMI's Mr. Kavanagh believes that Eircom simply decided they were going to lose in court. "It doesn't take much to work out that the next thing we're going to go for is loss of earnings and that will be tens of millions," he says.

But McIntyre calls that perspective "nonsense."

"European law is very clear here; the e-commerce directive provides an immunity. It says that ISPs may not be found liable where they act as a 'mere conduit' – in other words, where they're transmitting material from A to B, which is what they're doing in these cases. That is crystal clear."

The debate over filesharing has tended to crystalize along legislative lines. Consumer groups wave privacy legislation or the e-commerce directive at the music industry, which in turn waves copyright legislation back at them.

Kavanagh says that what's happening in Ireland will have global ramifications and cites a 2007 Belgian judgment – SABAM vs. Scarlet – that held a local ISP liable for copyright infringement. Scarlet, the ISP, has an appeal pending in a higher court.

University College's McIntyre predicts that any music industry hopes of using Ireland as a model will be thwarted.

"The tide is turning against these types of claims," he says. "The music industry has lost its attempt to push this through at a European level, it's lost its attempt in France, it's not receiving a receptive response in the UK."

Just last week, a Spanish court ruled that not-for-profit filesharing was legal, while in France, legislators delayed considering a bill to punish downloaders until sometime after the summer.

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