Eircom Irma Briefing Note March 2009

Briefing Note on arrangement between eircom and the Irish Recorded Music Association (IRMA) with regard to Copyright Infringement March 2009 Background Four major record companies, EMI, Sony, Universal and Warner initiated legal proceedings against eircom seeking to compel eircom to deploy monitoring/filtering technologies on its network to identify and prevent copyright infringement through the use of P2P file sharing. The action was brought under the Irish Copyright legislation. The hearing was held in the Irish High Court in January 2009. After eight days at trial, the legal proceedings were settled. The approach to be adopted as part of the settlement will not involve eircom engaging in any form of monitoring activity. Current Position Since the legal proceedings ended, both parties have been engaged in detailed discussions regarding how the settlement will be implemented. These discussions concern very complex legal and technical issues. The discussions have not yet been concluded. Key Points of the Draft Protocol It is important to note that:

that

the

agreement

means

• eircom will not monitor its customer's activities at any stage. • eircom will not implement any form of monitoring equipment or software on its network. • eircom will not provide personal details or any information relating to its customers to any third party, including the record companies. No personal data will be transferred from eircom to the record companies which would enable any customer of eircom to be identified. eircom has agreed to keep confidential and will not disclose any information concerning its customers to the record companies and it will in particular observe in all respects the laws on data protection. 1. Notification/Certification: The agreement between the parties provide that the record companies will supply eircom with the IP addresses and evidence of the infringement of those the record companies detect illegally uploading or downloading copyright works on a peer to peer (P2P) basis. The draft protocol being negotiated by the parties sets forth the level of detail required by eircom from the record companies in relation to the notification by them of iinfringements by customers. Under the draft protocol, the notification shall include the following information (at a minimum): details of copyright holder (name and address); why the notification is being sent (i.e. setting out the breach of copyright); the actual copyright work that has been infringed (information on copyright material, for example artist, song, title and album title); the IP address; the time stamp of when the investigation was initiated; the time stamp of when the investigation was completed, the peer to peer application/software used by the customer;

and, the digital fingerprint/hash for copyright material detected; The last item, the digital fingerprint/hash of the copyright material detected, allows eircom to verify that the copyright work identified by the record companies is in fact owned by them. In addition, the information which will be provided by the record companies will be of the same type as that used in the three previous disclosure actions in the Irish High Court involving the parties and eircom will not act upon a notification from the record companies that does not contain the information set out above. eircom has also requested that the record companies provide independent certification that the notification has been lawfully obtained by and on behalf of the record companies. The record companies are also to provide reputable annual independent certification that the necessary legal, I.T., entity level and regulatory controls relating to the obtaining, generating and processing of data by Detecnet (or any other supplier engaged by the record companies) have been complied with. 2. Graduated Response: eircom has agreed that it will from now on implement a graduated process in which it will; 1) Inform its broadband subscriber that the subscribers IP address has been detected infringing copyright; and 2) On a second occasion of being detected infringing copyright, warn the subscriber that unless the subscriber ceases to infringe copyright the subscriber will be disconnected; and, 3) On a third occasion of being detected as infringing copyright, and having reviewed the position, the subscriber will be served by eircom with a termination notice and, subject to extenuating circumstances arising, will be disconnected thereafter. eircom has not agreed to block any Internet sites from being accessed by end-users. As part of the settlement of the above proceedings, it was agreed that eircom would not oppose an application by the Plaintiffs to seek to have eircom block access to the Pirate Bay website. The Music Industry will still have to establish, in the normal way that there is an appropriate basis for the relief which they seek from the Court. eircom is not supporting or consenting to the application. The settlement makes no provision for any site other than the Pirate Bay website. At all stages in the graduated process, customers will have the right to complain and make representations to eircom if they feel that they have been inappropriately orincorrectly identified as infringing copyright. eircom will deal with all representations formally made by customers. The existing broadband support processes and platforms which eircom uses will also be used to log, track and report on all customer interactions related to copyright infringement. eircom will respond to complaints and representations made by its customers both internally and with other parties. eircom has also reserved the right to remove a customer from a particular level or not to effect a disconnection where eircom has received representations or complaints and believes that the infringement as alleged has not taken place or where there are particular extenuating circumstances which would make the disconnection of the customer unjustified. eircom will engage with that person at all times to ensure that there is a full understanding of the issues and that any accidental or unintentional infringement can be identified and remedied. Disconnection will follow only when eircom is totally satisfied that there is clear evidence of sustained copyright infringement, that the alleged infringing person has had sufficient opportunity to explain its circumstances and that all possibilities that the person was a victim of accidental infringement have been eliminated. eircom is satisfied that if all of these conditions are met, it is entirely proportionate to disconnect the High Speed Internet Access Service. The eircom supply contract with individual customers explicitly states that service

will be discontinued if an end-user is found to be infringing copyright. Furthermore, under Irish Copyright Legislation, any operator who becomes aware of illegal copyright activity on its network has obligations in effect to bring this activity to an end. Disconnection only applies to the Internet Access Service provided by the ISP. Other telecommunications services including VOIP, IPTV will be fully available. Conclusion In conclusion, eircom would stress that the approach being discussed with the Music Industry in Ireland protects the “mere conduit” status of telecommunications operators. eircom has not agreed to take responsibility for the illegal actions of end-users of the network and is not introducing any monitoring procedures of customer internet usage.