More than a year ago a controversial “six strikes” program (officially titled “Copyright Alert System“) was created by movie and music trade groups (together with the biggest ISPs) with the goal of deterring piracy. Although the program has many flaws, its creators have been stressing its educational rather than punishing nature. Nonetheless, the participating rights holders reserved the right to subpoena identities of the “most persistent” infringers with the purpose of suing them. It has not happen so far: the PR disaster that labels brought upon themselves by going after individual file-sharers is still fresh in people’s memory, and I doubt that the labels really want to step onto the same rake again: it seems that the lawsuit provision was added mostly as a strong deterrent.

So, while the actual rights holders are hesitant to pursue the litigation route, those who don’t have reputation to begin with, are now trying to camel-nose the weakest point of the program.

I already wrote about Lipscomb/Nicoletti/Schultz’s request to commence a fishing expedition to Comcast’s private data storage. At that time it was only a request. This time it was granted — in two courts.

First, in Illinois, Judge Brown granted plaintiff’s motion on 6/18/2014 in the eventful Malibu Media v. John Doe (ILND 13-cv-06312). It is worth noting the usage of the word may, which can be a scrivener’s error, or (I hope!) a hint to Comcast (emphasis is mine):

It is hereby ordered that Plaintiffs Motion is granted. Plaintiff may serve a third party subpoena on Comcast in the form attached as Exhibit A to this Order, and Comcast may comply with that subpoena.

Next, in Indiana, Magistrate Dinsmore ordered that “Comcast should comply with Plaintiff’s subpoena” in Malibu Media v. Tashiro (INSD 13-cv-00205).

The last of the three known fishing attempts of this kind is pending in Michigan (Malibu Media v. John Doe, MIED 13-cv-11432). An interesting nuance here is that the trolls want to depose not only the defendant’s previous provider, Comcast (the one the defendant was using at the time of the alleged infringement), but also his new one, AT&T. Please remind me: where did we see the names of these two ISPs together in a single lawsuit? Facepalm.



Why does Malibu needs this information in the first place?

The answer is simple: the trolls don’t have sufficient evidence against the defendants to win a jury trial. Period. After examining the defendats’ hard drives, after invading the neighbors’ privacy (in Illinois Malibu interrogated defendant’s neighbors with the court permission), the trolls still want a very vague data that cannot prove much to begin with!

Comcast must intervene

I understand that Comcast is overwhelmed by the blizzard of subpoenas from the copyright trolls and cannot object to all of them. Nonetheless, ISPs did fight for their customers and for their reputation in the past. The performance of their attorneys in AF Holdings v. Does 1-1058 in DC and Lightspeed v. Smith in Illinois was excellent. Again, priorities are priorities: not all cases are created equal: some warrant picking up a fight, and some are simply critical.

This is such a case. Complying with these overreach subpoenas without giving a good fight will open a can of worms, no doubt. Today it is the “six strikes” data; tomorrow it will be the browsing history. Since the entire trolling “business” is premised on the pressure to settle rather than collecting evidence for a jury trial, every tiny bit of the victim’s privacy that trolls put their fingers on will be used to extract a ransom. None of us are completely free of vices. Everyone has something deeply private that can be leveraged by blackmailers.

A gruesome analogy

I’m risking to be prosecuted according to the Godwin’s Law, but I can’t stop thinking about the following analogy. As the Swedish Pirate Party founder Rick Falkvinge wrote in one of his articles,

The Netherlands used to keep track of people’s religion as part of the public records. The intent was noble as always: by keeping track of how many Jews, Catholics, and Protestants there were in a city and its different parts, you would be able to plan for an appropriate amount of synagogues, Protestant churches, and Catholic churches, their proportion to one another, and so on. Then, World War II came around. There were almost no Jews at all in the Netherlands after World War II. According to Wikipedia, less than 10% survived (14,346, compared to an earlier population of 154,887). As it turns out, it was very convenient for the… new administration… to have access to the collected data, and it was indeed used against the citizens, as it always is in the end.

The difference here is that we are not talking about the government, yet the alliance of the copyright cartel and ISPs is no less scary when it comes to data retention, even for “educational purposes.” Was “six strikes” conceived in good faith? Maybe. Is it about to be cynically abused by the porn trolls? Hell, yes.

Related

¹6/30/2014 update: Techdirt also paid attention to this news.