The parties agreed to operate a system which will see subscribers warned when their connections are observed engaging in copyright infringement. After several warnings ISPs will take a variety of mitigation measures against account holders.
This continues up to six “strikes” and after that “nothing will happen” according to the parties involved. While this is true in terms of mitigation measures applied by Internet providers, the tracking of these subscribers doesn’t stop. Even worse.
In the Memorandum of Understanding signed by the participating parties we read the following:
“The Participating ISP will, however, continue to track and report the number of ISP Notices the Participating ISP receives for that Subscriber’s account, so that information is available to a Content Owner Representative if it elects to initiate a copyright infringement action against that Subscriber.”
While copyright infringement action could mean a lot of things, we previously pointed out that this means “lawsuits.” As part of the system ISPs have to share the monthly reports with copyright holders which would allow these groups to uncover identities of these alleged BitTorrent pirates. This means that IP-addresses will be shared without being redacted.
The Memorandum of Understanding puts it as follows.
“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. For the avoidance of doubt, the Parties agree that the Content Owner Representatives may share such reports with the other members of the Participating Content Owners Group..”
This “side-effect” of the six-strikes plan has been largely ignored so to get clarification on the purpose of the above paragraphs TorrentFreak contacted CCI Executive Director Jill Lesser this week.
Lesser confirmed over the phone that the data shared by ISPs would allow copyright holders to request the personal details of alleged infringers through subpoenas, but that this type of legal action is not part of the copyright alerts program. Lesser added that copyright holders can and are already tracking BitTorrent users right now, suggesting that it’s nothing new.
While it is true that the MPAA and RIAA can use monitoring companies to track alleged infringers, from a legal perspective they have a much stronger case when it’s done as part of the copyright alert system.
For example, getting the data from ISPs allows copyright holders to say with certainty that certain accounts were used for multiple infringements, as ISPs will connect dynamic IP-addresses to the correct account holders.
Also, those who receive warnings under the copyright alert system will have to acknowledge that they understand the risks. This means that rightsholders could show the court that subscribers were warned multiple times, but chose not to take action.
Lesser told TorrentFreak that she doesn’t believe that the MPAA and RIAA are interested in going after persistent pirates. However, she admitted that she doesn’t know why the language was included in the agreement, as she wasn’t yet around when the agreement was drafted.
While we can’t say with certainty that information shared by the ISPs will lead to lawsuits from the RIAA or MPAA, it wouldn’t be a surprise if this happens. Why else would they have negotiated this option to begin with?
We can think of no other reason why these groups would want to know the identities of repeat infringers.