Feb 282012
 

Catching up from January is news about EMI suing the Irish government for not having passed a copyright law that would toughen sanctions for filesharing.  From the Irish Times:

The Irish arm of multinational music group EMI has launched a High Court action against the State as part of its bid to stop the illegal downloading of music.

The Government recently pledged to issue an order to allow copyright holders to compel internet service providers (ISPs) to block access to websites that they consider are engaged in piracy.

However, EMI Records (Ireland) remains unhappy with what it perceives to be foot-dragging on the part of the Government in tackling this issue.

It is concerned that the matter could be delayed again, and that even if a statutory instrument is issued, its contents may not be satisfactory.

This situation is relevant to this blog for a few reasons.  One is that the law EMI wants Ireland to pass would contain injunctive measures directly bearing on the free speech rights of ISPs and their users. But another, perhaps even more significant, aspect to this situation is the use of the lawsuit to drive policymaking.  The obligation of a republican government is to legislate in a way that serves the will of the people who elected it, not just that of a single constituency.  If a single party were to use the court system to compel a specific legislative result it would allow it to trump the judgment of a democratically-elected government and undermine the people’s right to govern themselves.Thus if the Irish government ultimately opts not to implement the policy EMI wants that should be its prerogative.

The situation here may be a little more complicated, however.  It appears in this case EMI is trying to force the Irish government to align itself with EU requirements. In some sense this situation is analogous to judicial review of legislation, where single constituencies can and do use the courts to protect minority viewpoints the majority may have threatened, particularly if the policy in question is inconsistent with the tenets guiding how the government must comport itself.  In this case the Irish government may indeed have an obligation to meet EU standards, and EMI may indeed have the private right of action to force the government to meet that obligation.   But whereas judicial review normally has the effect of anulling legislation, here EMI is trying to compel legislation, which seems an important distinction.  The former is useful when the legislature has exceded its power; here the legislature’s power is being completely usurped.

Which illustrates another issue: the effect of international legal harmonization on local rule.  Sometimes international treaties can lead to results more favorable to civil liberties than local policymaking might have yielded on its own.  But here the opposite appears true: local authorities have already found the three-strikes legislation sought by EMI to be inconsistent with how Irish law protects citizens’ rights.  If EMI were to succeed in its suit it would demonstrate yet another instance of how international treaty obligations can serve to remove the policymaking process from local control, and at the expense of local interests.

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