Eircom Case - Future of Illegal Downloads in Ireland

A recent case in the Irish High Court has displayed that Ireland is leading the way in combating illegal file-sharing. In a move that is likely to be replicated, or at the very least prove influential, across regulated countries record labels are beginning to make some progress in the battle against music piracy. For the purposes of shedding some light on the High Court's decision in this matter I have examined some of the main issues and likely consequences for those who fall foul of the this new legal approach.

Eircom customers consider yourselves hereby warned.

On 28 January 2009 the terms of a settlement between EMI, Universal, Sony, Warner and Eircom was set down in writing and filed in court.

The Data Protection Commissioner in turn raised three issues as to why the settlement might be doubted to conform with data protection legislation.

Under the terms of the settlement the parties agreed to implement a three stage procedure. Firstly, internet users involved in illegal downloading will be contacted and requested to desist, another warning will issue on a second infringement. When a third infringement is notified to Eircom, a review of all evidence must be conducted, and a termination notice will then be issued. The customer is at this stage entitled to make representations to Eircom as to their situation.

The Issues Raised

Issue 1

Do data comprising IP addresses, in the hands of EMI or its agent(s) constitute “personal data” for the purposes of the Data Protection Acts 1988-2003?

The court ruled that IP addresses alone are not to be considered as personal data. The court noted that in order for the IP addresses and other information obtained by the plaintiffs to constitute personal data, it must be probable that further information might come into their possession which would identify the individual end users.

Issue 2

Does the processing by Eircom of “personal data” in the context of the third of the three steps envisaged under the terms of the settlement (i.e. the termination of an internet user’s subscription) represent unwarranted [processing] by reasons of prejudice to the fundamental rights and freedoms or legitimate interests of the data subject?

Justice Charleton approached this issue by reference to the principle of proportionality and a balancing of the right of an owner of copyright to have the fruits of their labour protected versus any right which an internet user might have to access the internet and not to have that access terminated.

The court’s ruling on this issue effectively places the protection of copyright ahead of the right of an internet user to access the internet and consequently not to have that access terminated.

The second question was, therefore, answered in the negative.

Issue 3

Whether it is open to EMI and/or Eircom to implement the 3 step process set out in the settlement including, in particular, the termination of an internet user’s subscription under step 3 of that process, in circumstances where the termination of an internet user’s subscription by Eircom would be predicated on the internet user in question having committed an offence but without any such offence having been the subject of investigation by an authorised body; and, further, without any determination having been made by a court of competent jurisdiction.

The judge opined that the parties to the settlement were concerned only with the civil side of copyright infringement, and as such that a mental element of knowing or having reason to believe that one is dealing with an infringing copy of the work was not required to be proved. Justice Charleton answered the third question in the positive, specifically that the graduated response process agreed by the parties was indeed lawful.

Overall, a high degree of power to stop illegal file-sharing has been given to the four major record labels. Already a number of Eircom customers have received warnings and word is that others have had their connection severed after ignoring the warning letters received from Eircom. Similar court cases are due against the other Internet Service Providers operating in this country. The likes of NTL have vowed to fight the labels harder than Eircom and this will really clarify the future of file-sharing in Ireland.

SPEAK YOUR BRAINS - Tripod misery

The spectre of buffoons on the doors of our cities' watering holes is something Irish people have been subjected to, and in a fashion typical of our race, have grown to accept. However in the world on gig-going, afficionados have been relatively lucky in that most establishments treat their customers like human beings. Not so in Tripod on Sunday night unfortunately. From being ushered to a table on the street for an airport-style pocket-emptying and frisking (free cupping included), to being forced to wait ten minutes for having bought tickets online (with the manager holding two of our group's credit cards in his office for these ten minutes), to being forced along the corridor without even having had the chance to put change back in our pockets after using the cloak room, the Harcourt Street venue's staff showed such a blatant disregard and disrespect for their customers. And as for the mop guys, they actually pushed a friend of ours out of the way to continue mopping the dancefloor!! It wasn't even wet.

Being made to feel as if one has done something wrong is not conducive to a good night out. Approaching customers with a "guilty until proven innocent" attitude is not the way to run a business. Now perhaps Tripod have had trouble in the past and feel the need to adopt a more heavy-handed approach, but none of this excuses the way they went on. I strongly feel none of the 5 of us who entered together will go back to the place ever again. If they want to behave like that, they will quickly (and maybe already have, given the venue was half-empty) lost any potential customer with an ounce of dignity or a brain in their head. Businesses cannot be let get away with treating people like criminals, animals or idiots.

As it turns out, Matthew Dear played a blinding set. Pity it hadn't been held somewhere where we could actually enjoy it.

A ticket worth buying

One For The Road:

A Road Records Benefit & Celebration
Saturday March 14th 2009
Andrew’s Lane Theatre
8.00pm – 2.30am
Doors 7.30PM sharp
Jape
The Jimmy Cake
Si Schroeder
Colm Mac Con Iomaire
Adrian Crowley
The Large Corporation (Dudley Corporation Vs Large Mound)
Road Records DJs

As many people will know, Road Records, across from Hogan's, just off George's Street, has gone into financial difficulty and looks as though it will be gone for good. There are rumours of investments and potential backers, you can follow the news on that here
By all accounts it has been an important hub for independent musicians and music lovers for a long time in Dublin, and has been a vital pillar standing against the proliferation of faceless
download culture*. So for all with an interest in that kind of thing, this gig is well worth supporting


*of which this blog inevitably plays a vital part

SPEAK YOUR BRAINS: Ticketmaster - seriously lads

This Friday and Saturday, 5th and 6th of February, Vicar Street hosts Gigs for the Children of Gaza, featuring a wide range of Ireland's finest musicians. The full line up and further info are available here.

This is a worthy cause, and I am sure the money raised will go to good use. However I was horrified to see that when booking was being completed, the usual Ticketmaster charge of €3 or so was still being applied. Maybe I am oversensitive, but surely if a company that makes astronomical global profits per year is acting as the intermediary for a benefit gig for a war-ravaged people, the normal surcharge on tickets could be waived? Or they could have just charged us €28 with all the money going to Gaza. Maybe they are indeed going to donate each €3 to the Gaza fund, but there is no mention of it during the purchase as far as I could see. If they are indeed so greedy that they cannot change their normal practice in such exceptional circumstances, there is indeed something seriously wrong with the world. If anyone knows any more about this, please comment!!

Gigs - not so hot right now

Interesting that both the Irish Times' The Ticket and Guardian's Music and Film both featured articles on the demise of the live music scene on either side of the Irish sea last Friday. Fans in Ireland have been moaning for several years about gig prices, with an endless array of anecdotes along the lines of "I saw Arcade Fire in a village in Transdiniestra for 14 zhalenznys, which is about 3 cent", I hate stupid MCD". We would rightly have been tempted to suggest that the recent difficulties facing live promoters in Ireland might have something to do with the outrageous profiteering that goes on here. Jim Carroll's Ticket article mentions promoters giving away tickets to give the impression that there is sufficient demand in the more specialised end of the gig market, and numerous examples of gigs that have massively undersold in Dublin this year along with gigs being cancelled "due to unforeseen circumstances". Yeah, it's your third show in Dublin in three months, nobody wants to go to your show. Was it really that unforeseen like??? This jibe brings me to the crux of the problem, namely that touring has simply become too commonplace. The Guardian article from last Friday confirms that the drying up of the live market is more than an Irish phenomenon. The problem is actually worryingly simple: people don't want to pay for music anymore, so bands figured out a couple of years ago that the only way to make a living was to supplement declining album sales with increased gig sales. But now we have a new problem - when everyone thinks like this, there are simply too many gigs. While people may have been willing to buy an album on spec in the past, the temptation to get up off your couch on a cold windy evening and cycle into Whelan's to see a band you "kind of" like, or "flicked by their MySpace once", is just not there. The conundrum of over-supply brings us to the next problem: whither the music industry? One avenue is some sort of arrangement where legal downloads such as iTunes regain the popularity once owned by CD sales. While iTunes sales are certainly booming, I think unfortunately that humanity is such that while things are available for free, the majority will avail for free. So if there is no return to making a living for the average band from studio releases, and the live scene is collapsing like the Champion's league group stages, what's the solution? Government bailout anyone??

SPEAK YOUR BRAINS: Comrade Yorke

We knew that something was in the air, what with global capitalism collapsing last week, bankers calling for government intervention and the nationalisation of investment banks the world over. Never too far behind the prevailing societal trends*, some of the foremost musicians on earth have pulled together to form their own Trade Union, which they have named The Featured Artists' Coalition. Not to be confused with the The Coalition of Black Trade Unionists, this Coalition, with similarly noble aims, will create a forum whereby musicians can stand up for their rights. The Coalition will even have a six point "Manifesto", and be headed by a "Chairman". The Coalition felt the need for its existence magnify in recent years due to the onslaught of first Napster and then any number of downloading, streaming, and essentially, nicking engines. They cite even MySpace as a genuine threat to their well-being. Their primary aim will be to give young bands a governing voice "that will support them and help protect their work", according to Damon "Scargill" Gough of Badly Drawn Boy, who has just returned from the Yorkshire Coal Fields after a long hard fight with Thatcher's minions in blue. The Coalition will be headed by Karl, I mean Thom Yorke, Trotsky Williams, everyone's favourite DJ Stakhanov Oakenfold, local workers' council action group "The Verve", and Craig "Solidarity" David.

The first line of the Coalition Manifesto reads as follows:
"A spectre is haunting Europe... The spectre of the Coalition. All the powers of the Europe have entered into a holy alliance to exorcise this spectre: Napster, Rapidshare, BitTorrent, TorrentSpy, MegaUpload, MySpace, Facebook, Gay Byrne, Beyond the Big Wave, Dustin the Turkey, and worst of all, Batt O'Keefe and Martin Cullen"

Expect to hear much more from this force for good in the world as capitalism crumbles all around us and the Coalition brings into a fairer, better era for humanity.

*remember Live Aid? And then Live Earth? Well, after caring about poor people, and caring about the environment, it seems the new "in" thing is to act like a Trotskyite

Ewan Pearson Speaks

Ewan Pearson has been writing short pieces for Germany's Groove magazine for the past couple of months. The brief was that it shouldn't be about records or the lifestyle of a DJ but more thoughtful or insightful. He has made some very interesting points and observations in his bi-monthly guest column to date. Covering topics from MP3 blogging to ears and general observations about the electronic music scene. His June 2008 piece has a particular resonance for me as it covers the notion of travelling in another country without a command of the native language. It's something I've been struggling with, but slowly managing over the past three months. I have really enjoyed the insights and opinions of one the scenes leading lights. I'm sure you will find something that strikes a cord with you too.

Ewan has posted his bi-monthly guest columns here. Check it out.

http://www.ewanpearson.com
http://www.ewanpearson.com/enthusiasm/
http://www.myspace.com/ewanpearson

Ewan's remix of The Foals - 'Olympic Airways' is available to sample on his MySpace page.

Critic's Choice

James Blunt earned a place in The Guinnes Book of Records for the fastest selling album in one year(2006). In Britian alone Back to Bedlam sold over three million copies and was certified 10x platinum. The album eventually sold 11 million copies worldwide and topped the album charts in 16 territories. Compare this with Van Morrisson's critically acclaimed 1968 album Astral Weeks which, 33 years after its inital release, eventually achieved gold status.

It can safely be said that Back to Bedlam won't be appearing on any authorative lists detailing the best albums of all time. Astral Weeks, however, was listed at number 2 in Mojo's 1995 list: The 100 Best Albums. It featured at number 19 on the Rolling Stone Magazine's: The 500 Greatest Albums of All Time in 2003. It also ranked number 5 in The Ticket's: Top 40 Irish Albums of All Time.

So, what is the reason for the massive difference of opinion between the music buying public and professional critics as to what constitutes good music? Surely people who are paid to review an album and hold themselves out to be an authority on such matters should be appreciative of music that has sold hugely across the globe and, further, should hold a degree of influence over the music buying public.

It is rarely the case that the public and critcs agree on the merits of a particular song/album and share a common appreciation of its appeal. A discernable pattern emerges when the music beloved of critics is examined. Critics are particularly concerned with emotion, lyrics, innovation and authenticity. Attributes absent in the majority of popular music. It is not that they are using different criteria to asses music, they are simply giving greater weight to some of them. Critics' favourites that the public hate include: Captain Beefheart's Trout Mask Replica, Robert Wyatt's Dondestan and Van's Astral Weeks.

The music buying public, on the other hand, derive most satisfaction from material that places emphasis on melody, entertainment, escapism, immediacy and imagery. Attributes that critics often downweight. Public favourites that the critics hate include: Meat Loaf's "Bat out of Hell", "Hotel California" by the Eagles and, of course, ANYTHING by James Blunt.

There has been plenty of recent evidence to suggest that the tastes of critcs and the public can converge. I, personally, was greeted with looks of disgust on the admission that I believed that Rhianna's "Umbrella" was a good song. I didn't "like it-like it" but could appreciate how the song "ticked all the boxes" on the road to creating a well crafted pop song that caused quite a stir on it's release. Other examples of agreement between the normally divided factions include "Hey Ya" by Outcast, "Crazy"- Gnarls Barkley and Amy Winehouse's "Rehab". Critics adored them as much as the millions who bought them.

Overall, it seems that true music critcs have an influence over a limited group of people. These people are happy to shun the zeitgeist in search of something more challenging despite looks of confusion when queried on musical preferences on a regular basis. It is also interesting to note that both sets can reach a harmonious common-ground in some instances. I always remeber reading somewhere in the past that the melody of a song makes you fall in "like" with a song, whereas, the lyrics make you fall in love. I suppose critics search out love, and overall, are more susceptible to falling head over heels.



* I must credit Mark Edwards of The Sunday Times for much of the basis of this piece.

SPEAK YOUR BRAINS: Irish Music Mags

Fascinating debate over on Jim Carroll's blog here


Here were my two centimes:

Those who criticised Mongrel above simply don’t get it. Their reviews (and I’m thinking James Blunt here, which, as it happens, is still blu-takked to our kitchen door) were fucking hilarious, and that was primarily their function. Although some reviews were stunningly concise in their accuracy: on the recent Rilo Kiley record - “If this album was a person I’d want to sleep with it”. Their more ‘abstract’ reviews this week are phenomenally funny - go forth and read, people.
It will be fascinating to see how Eoin Butler’s articles pan out in the Irish Times. It is imperative that he be left with as much autonomy as possible. The very nature of his writing is otherwise at risk. I still enjoyed reading it last Saturday mind.

As for Foggy Notions, it’s sad to hear of its (temorary-ish) end. Someone above mentioned the fact that it constantly endorsed the music it covered. Indeed it did, is it not a good idea to exclusively cover the likes of Beruit, Pantha du Prince et al? It lends itself to wonderfully optimistic and non-authoritative tone, mainly due to the omission of coverage of shit music. I often saw it as Small Hours put to print. On the subject, Donal Dineen’s FN CD last summer was one of the most beautifully atmospheric and coherent compilations I’ve ever heard.

Re: The Hot Press Stuff. I subscribed to it in 2003. The political radicalism of their op-ed was fiery and refreshing. The features, interviews and writing were all of a high standard (Udell, Murphy, Tyaransen, Glendenning, I think), and it generally served as a decent companion to undergrad life.

Then I bought it last week. Jesus.