Eircom's "3 strikes" scheme

Since 2010 Eircom have been operating a "graduated response" scheme in collaboration with the record companies.

Public details of this anti-music piracy system have been scant until recently. It can lead to customers having their internet cut off but Eircom have said no one has suffered this fate.

On Sunday we did a story in The Sunday Times about the some of the lobbying which went on before Sean Sherlock enacted a change to Irish copyright law which allows copyright holders to get injunctions from the courts which can lead to websites being blocked. It's known as "Sopa Ireland" to many opponents.

The record companies would like all internet providers to set up a voluntary "graduated response" scheme like Eircom's. If they don't the record companies will go to the High Court to seek the injunctions Sherlock's new law allows.

Some of the lobbying, details of which were released under Freedom of Information law, both against and in favour of the new injunction law, revealed some interesting information and views.

In a meeting last December Willie Kavanagh, chief executive of the EMI Ireland, gave Sherlock a run down of how Eircom's three strikes system was working. He advocated for the power to get injunctions to be brought in quickly. See a memo of this meeting here.

In an earlier meeting the Telecommunications & Internet Foundation, which consists of a lot of the big telcoms, met with Sherlock and expressed opposition to the proposed statutory instrument (SI).

While it's been suspected Eircom might have concerns about the graduated response scheme this document reveals what those fears are.

Basically, Eircom, through Pat Galvin, its head of public policy, is recorded saying "graduated response", as implemented by Eircom "is expensive and does not provide protection or redress for end-users, as is required by the EU Telecoms package".

Quite an admission.

Both pages recording this meeting and that admission are on scribd.com - page 1 and page 2.

those fears.

Eircom are worried there is no independent oversight of their 3 strikes system as is required by the EU Telecoms Reform package signed into law in 2009.

But why sign up for a scheme in 2010 that was in breach of EU law passed a year earlier?

Well the EU law was only transposed into Irish law in July 2011.

According to the EMI briefing, Eircom has cut off the internet connection of 100 customers for seven days and 12 faced having their internet connection (with Eircom) withdrawn permanently. Eircom told me the reason it hadn't cut anyone off permanently was because people's behaviour changed after a number of warnings.

But maybe the reason Eircom won't cut anyone off permanently is because it would breach EU and Irish law.

The admission by Eircom that its system does not adequately protect its users may have knock-on effects. The music industry is taking action against the Data Protection Commisioner (DPC), who has ruled the 3 strikes scheme is in breach of privacy laws. The music companies want the High Court to rule the DPC's intervention, which was to order Eircom to stop running the scheme, is unlawful. Eircom has also appealed the commissioner's decision in the circuit court.

That's a lot of effort to protect a scheme which we now know Eircom told the government privately last year was in breach of EU law.