In the coming months U.S. Internet providers will begin to warn and punish copyright infringers. Since the "six strikes" plan was announced, a lot has been said about the temporary disconnections and throttled connections subscribers might be subjected to. But there is an even scarier outlook for persistent BitTorrent pirates, as the MPAA and RIAA have negotiated the right to demand the details of repeat infringers should they decide to take legal action.

Later this year, the Center for Copyright Information (CCI) will start to track down ‘pirates’ as part of an agreement all major U.S. Internet providers struck with the MPAA and RIAA.

The parties agreed on a system through which copyright infringers are warned that their behavior is unacceptable. After six warnings ISPs may then take a variety of repressive measures, which include slowing down offenders’ connections and temporary disconnections.

While all parties are keen to stress that the system is set up to educate, and that the privacy of Internet subscribers is guarded, there is some worrying language in the agreement that has been overlooked thus far.

As part of the deal, ISPs have agreed to share progress reports. These reports include a variety of statistics, including the number of warnings that are sent out, and how many frequent offenders there are. Nothing out of the ordinary thus far, but that changes when we read the following sentence:

“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..”

In other words, the MPAA, RIAA and all of its members may use these progress reports to take their own actions against persistent BitTorrent pirates. This sheds an entirely different light on the educational “six-strikes” scheme.

Repeat infringers are not just at risk of having their connections throttled, they can also find themselves dragged to court by the MPAA or RIAA. So much for safeguarding the privacy of subscribers.

The potential legal action is cited again later in the agreement when it discusses what happens after users receive their sixth warning.

“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.”

This “action” the document refers to is legal action. Interestingly, if we look at an early draft of the agreement that was made public through a FOIA request, the term legal action is used. Presumably, this was changed to prevent any alarm bells from going off.

Legal action

While the above is no certainty that the MPAA and RIAA will sue BitTorrent users, they wouldn’t have put the language above in the agreement if it’s not being considered. This is worrying, much more so than the “six strikes” warning system itself.

Time will tell why the RIAA and MPAA put in this option to sue, and how they are going to capitalize on it.