Given that the French constitutional council has recently declared even the French 3 strikes law to be unconstitutional it is hard to believe an Irish Court, in a country where no such law exists, would impose such a legal obligation on Irish ISPs. Yet Eircom would have settled because they thought they would lose in court. Part of that settlement involved the music cos. pursuing other ISPs on similar grounds so Eircom would not find themselves at a competitive disadvantage. But 3 strikes has been repeatedly rejected by the EU parliament and in several jurisdictions all over the world. The Council of Europe has again declared access to the Internet to be a fundamental right. It might conflict with the ECJ decision in the Promusicae case, various EU directives and the European Convention on Human Rights, not to mention the practical problems involved and the relative costs to the various parties. A decision in favor of the label has the potential to be challenged eventually both through the European Court of Justice and the European Court of Human Rights. Ed Felten's extrapolation of the 3 strikes approach to print media shows just how silly the whole approach is. And remarkably, even the entertainment industry friendly collective mindset of EU culture ministers agreed, in November last year, to reject the French 3 strikes idea:
"EU culture ministers yesterday (20 November) rejected French proposals to curb online piracy through compulsory measures against free downloading, instead agreeing to promote legal offers of music or films on the Internet.Surely it is a bad time for the music industy to be bringing such a case to court? Or perhaps there is some insider knowledge that Ireland may now be the place to get the 3 strikes foot in the door of EU regulation? After all, in Groundhog Day fashion, the development of IP legislation has never had a lot to do with rational opposition to irrational expansion proposals.
The EU Culture Council pushed yesterday (20 November) for "a fair balance between the various fundamental rights" while fighting online piracy, first listing "the right to personal data protection," then "the freedom of information" and only lastly "the protection of intellectual property".
The Council conclusions also stressed the importance of "consumers' expectations in terms of access […] and diversity of the content offered online". No mention was made of a gradual response to serial downloaders of illegal cultural material, as foreseen by the French authorities."