A cornerstone of the system sees the major labels and movie studios sending notices of infringement to ISPs which they in turn forward to their subscribers. Records of these notices are then held in a database, which copyright holders in the six-strike scheme may subsequently use in legal action, if they feel that is appropriate.
“The Content Owner Representatives [MPAA / RIAA] or any other member of the Participating Content Owners Group may use such reports or data as the basis for seeking a Subscriber’s identity through a subpoena or order or other lawful process,” the agreement reads.
Trouble is, any data on file is at risk of being accessed by a third party if they can convince a judge they have good reason to obtain it. And that’s exactly what the largest filer of copyright complaints in the United States is now attempting to do.
Malibu Media is well-known as a filer of many lawsuits against alleged file-sharers. Indeed, earlier this week the company was featured in an article which confirmed its status as the most prolific filer of copyright lawsuits in the entire United States.
In a case which has been documented by FightCopyrightTrolls since its initial February 2013 filing, Malibu has been struggling to pin an infringement on Kelley Tashiro, a middle-aged female nurse from Indianapolis. Faced with an uphill battle, Malibu has now turned to Tashiro’s ISP, Comcast, to find out what information it holds on her.
Perhaps inevitably, Malibu is attempting to find out whether or not the IP address allocated to Tashiro has ever been subject to infringement allegations by other copyright holders. In addition to details of any DMCA notices forwarded, Malibu has asked a judge to order the release of data being held as part of the Copyright Alerts System.
“DMCA notices and six strike notices are relevant because these notices may prove a pattern of infringement or notice that infringement is occurring or both,” Malibu writes in its motion.
In an indication of just how desperate Malibu has become, the company also wants details of Tashiro’s bandwidth consumption, as if that somehow indicates whether she is an infringer or not.
“Bandwidth usage is relevant because people who are heavy BitTorrent users use significantly more bandwidth than normal internet users,” the company’s sweeping generalization reads.
In summary, Malibu points out to the court that without this and other items of information from Comcast they have no chance of winning the case, another indication of how flimsy IP address-only evidence is now being viewed.
Whether Comcast will comply or not remains to be seen. A similar case in April 2013 which demanded information from Verizon was subsequently dropped.