Music Industry Sues Irish Government For Piracy

bs0d3 writes "The music industry has initiated a lawsuit against the Irish government for not having blocking laws on the books; on the theory that if blocking laws were in place then filesharing would go away. On Tuesday the music industry issued a plenary summons against the Irish government which is the first step towards making this litigation possible. This all began in October 2010 (EMI v. UPC), when an Irish judge ruled that Irish law did not permit an order to be made against an ISP requiring blocking of websites. Recently several ISPs across the European Union have been ordered by courts to block thepiratebay.org through legal maneuvers."

Comments

Causal Link

[mandelbr0t]

The crux of the case will lie in proving that there is a causal link between the lack of laws requiring ISPs to block websites, and the damages claimed. The precedent is Francovich v. Italy. However, given that the judge in a ruling against British Telecom forcing them to use Cleanfeed to block access to websites like Newzbin and TPB acknowledge that tools to circumvent the system were available. And, in fact, Newzbin has released a client allowing access to their website despite the Cleanfeed block. The same software allows access to TPB. It relies on both encryption and the TOR network. Newzbin told BBC news that 93.5% of UK users have downloaded their Cleanfeed circumvention software. This flies in the face of the judge's comment that "Even assuming that they all have the ability to acquire [the means to circumvent Cleanfeed], it does not follow that they will all wish to expend the time and effort required."

93.5% of UK Newzbin users may not be "all" people in the UK who want to use file sharing networks, but it certainly means that establishing the causal link between lack of ISP blocking remedies and damages from file sharing will be difficult. People want access to those files, and Cleanfeed has proven largely ineffective at stopping two of the main sites involved in sharing. It should also be noted that these sites are not the actual hosters of the allegedly damaging files; they are merely portals to peer-to-peer networks that have other access methods available (e.g. DHT on BitTorrent). Again, the claim that blocking these websites would prevent financial damage is rather dubious.

Re:Separation of Powers?

[lordholm]

I thought so to, but it turns out (if you read the article) that the suit is about that Ireland has not implemented certain items in Union legislation. Thus, a court proceeding for Ireland is entirely appropriate, especially since Union law have precedence. The court is then asked to look at whether Irish law is compliant with Union law, so the court cannot force the state to make new laws, they can however force the state to follow Union law.

For the non-european who have no idea about how it works (this is a simplified version): EU legislation can be seen as federal law, but most of the legislation (known as directives), are actually laws about that the states should make laws fulfilling a certain set of requirements. If a state does not implement "federal" directives in local legislation within the directive's implementation period, those individuals and companies that suffer some kind of damage that they would not have suffered if the law was implemented, have the right to sue the state for non compliance. This is a normal procedure; try to solve it locally at first, the next step is to take it up with the Union so they can start infringement procedures against the state. Normally, the courts would in this case ask for union level courts for an opinion of the compatibility between state and union law.