By , October 18, 2010.

On October 11, The Irish High Court ruled that it did not have the authority to order Irish internet service provider UPC to implement a graduated response solution – a so-called “three strikes” approach – to reduce online piracy. The four major record labels – Warner Music, Universal Music Group, Sony BMG, and EMI – had sought the injunction after successfully getting Irish ISP Eircom to adopt a similar solution in a settlement agreement earlier this year.

Canadian attorney and blogger Barry Sookman has a thorough write-up on the case that I highly recommend, EMI Records v UPC – the case for legislative solutions to illegal file sharing, which includes links exploring the issue of graduated response solutions to online piracy in more detail.

Since I’m in the US, my familiarity lies with US copyright law. However, this case does highlight some issues relevant to the distinction I made previously on this site between creative and consumptive infringement. Copyright critics frequently lump their concerns with both types of infringement together to create one big copyright bogeyman. But this conflation only hinders discussion of copyright policy.

Discussion of creative infringement centers upon internally substantive aspects of copyright law – for example, how do you draw a line between acceptable transformative use of a copyright work and infringing transformative use. When you talk about consumptive infringement – verbatim, substitutive use of a work – there’s very few substantive copyright issues to consider. Instead, the discussion centers around procedural and enforcement issues.

Case in point is the opinion from this case. While the case concerns the enforcement of copyrights, it isn’t so much a copyright case as it is a separation of powers case.

Reading the case, and paying attention to the language used, you can see that the Court fully accepts the positive value of copyrighted works and the damage online piracy causes. Justice Charleton seems highly sympathetic to the record label’s struggle against “Internet piracy.” He noted that piracy is not only a “grave economic wrong against copyright holders” but that copyright is a constitutionally protected right for creators under Irish law.

In the end, however, as much as Justice Charleton wants to help the record labels, he simply can’t. To see how he reached that conclusion, 1And because I want to share my fascination with what many feel are the boring parts of law. let’s take a quick trip down remedy lane to injunction junction.

Injunctive Relief and its Limitations

An injunction is simply a “court order commanding or preventing an action.” 2Black’s Law Dictionary. The modern remedy of injunctions developed in the equity courts of medieval England. Back then, the court system was divided between two separate court systems: courts of law and courts of equity. Courts of law were rigid and formal; plaintiffs were typically limited to receiving money to compensate for damages or injuries. Courts of equity, however, were more flexible and afforded a broader array of remedies to plaintiffs. 3James B. Stoneking, Injunctions and Equitable Remedies, Oxford Companion to the Supreme Court of the United States (Kermit L. Hall, ed., Oxford University Press, 2005).

The reasoning behind equitable remedies is that there are certain situations where monetary compensation is thought to be inadequate – inadequate in the sense that a money award is incommensurate with the injury. An example of such a situation is a neighbor who cuts across your lawn to get to his property. If you don’t like him doing this, and take him to court, money damages will probably be inadequate. The trespass results in only a nominal injury – a court will likely only award nominal damages, if it awards any damages at all. Even if it does, the neighbor can continue to trespass, forcing you to continue to sue. An injunction – a court order prohibiting your neighbor from further trespass – is a more adequate remedy, as it more directly addresses the result you want.

The separate courts of law and courts of equity have largely merged in common law countries, though the distinction between legal and equitable remedies remains.

As you might imagine, injunctions are a powerful remedy – and with great power comes great responsibility. Common law countries like the US and Ireland – both of which count English common law as an ancestor – generally recognize a legislature’s power to place limits on equitable remedies through statutes. In the US, Congress has limited the availability of injunctions in labor disputes and rate orders of state public utility commissions, for example. 4Congressional Limitation of the Injunctive Power, OneCLE.

Leading the Court Beyond the Threshold of the Judicial Arm

Justice Charleton appears to have been willing to grant an injunction against UPC. He states that the “evidence convinces me that there is no just or convenient solution open to the record labels other than seeking injunctive relief against the service provider.” This evidence also convinced him that the injunctive relief sought by the labels – “detection, warning, and discontinuance” – is “proportionate to the vast scale of the problem.”

However, “courts must defer” to the legislature when the legislature has set out what remedies are available in a specific cause of action. Justice Charleton examines the legislative framework of Ireland relating to copyright thoroughly: examining both the text of the Copyright and Related Rights Act 2000 itself and construing it in light of European law, as well as comparing it to related legislation in other countries. This examination leads to his ultimate conclusion that the court is precluded from ordering the injunction sought by the record labels in this case.

Respecting, as it does, the doctrine of separation of powers and the rule of law, the Court cannot move to grant injunctive relief to the recording companies against Internet piracy, even though that relief is merited on the facts.

The Future of Graduated Response in Ireland

The decision appears to be only a setback for the music industry in Ireland. The Irish Times reports that “representatives of the music industry, internet service providers and the Government will now meet” to discuss new approaches to combating online piracy in light of the ruling.

An interesting twist in this case is that Justice Charleton was the same judge who presided over the record labels’ earlier lawsuit against Eircom. In that case, Eircom agreed to implement a graduated response procedure as part of a settlement agreement with the labels, so it is a bit unclear how the UPC decision will affect that agreement.

Charleton addresses the issue in the UPC ruling, stating that the previous judgment is both “correct” and “unaffected” by this case. However, there are suggestions that Eircom is exploring its options regarding its settlement agreement in response to this decision.

Aside from that, this decision is unlikely to have too much effect in the near future. Content industries in other countries continue to favor some sort of graduated response solution. But those efforts are largely being pursued through legislation – as has already happened in France – or through voluntary agreements with ISPs.


1 And because I want to share my fascination with what many feel are the boring parts of law.
2 Black’s Law Dictionary.
3 James B. Stoneking, Injunctions and Equitable Remedies, Oxford Companion to the Supreme Court of the United States (Kermit L. Hall, ed., Oxford University Press, 2005).
4 Congressional Limitation of the Injunctive Power, OneCLE.