In a ground-breaking ruling, the Irish Commercial Court has granted an injunction against an Internet Service Provider (ISP), UPC Communications, requiring it to take measures against its subscribers. The Court has ordered a "graduated-response system" (GRS) to tackle illegal downloads. This is believed to be the first time a court anywhere in the world has ordered a common law GRS.
GRS is an anti-piracy enforcement mechanism by which an ISP agrees, or is obliged, to monitor internet traffic or users to detect copyright-infringing downloads. Typically, a first infringement will result in a warning, a second will result in a sterner warning and a third may result in the household's Internet access being switched off. Under a GRS order the ISP is obliged to write letters to subscribers following complaints notified to it by the rights holder.
Some jurisdictions, including the UK, provide for GRS in their national legislation. In this case, the Court order was based on EU law, specifically the Copyright Directive, which is transposed into Ireland's national law by the Copyright and Related Rights Act 2000. The approach of the Irish Court could be replicated in any of the EU Member States, which could see more applications by copyright owners, particularly in the media and entertainment industry (in this case Sony, Universal and Warner) for a GRS order against ISPs, as opposed to more straightforward blocking orders.
Final details of the order are not currently known but the costs of implementing it are almost certain to be substantial and, although this will be shared between the rights owners and the IPS, the bulk of it is likely to be borne by the ISP. Ultimately of course, the ISP will have to look to recoup this outlay and no doubt the subscriber can expect to bear the brunt of this. Also to be elaborated in the final order is the cap on the number of complaints that rights holders may bring on a monthly basis to the ISP - in the discussions before the Court, a figure of 2,500 notifications per month was discussed, reduced from an initial suggestion of 5,000. Whilst this is still a lot of notifications, it is, according to the evidence, substantially less than the number of illegal Internet downloads taking place in Ireland on a monthly basis.
Another aspect of the order that needs to be addressed is how the respective rights of copyright owners, ISPs and Internet users are to be balanced - in today's world, disconnection from the Internet is a very draconian sanction and not one that should be ordered lightly.