Court: Comcast Must Give X-Art 'Six Strikes' Data for Lawsuit

LOS ANGELES—According to Ernesto at TorrentFreak, no one associated with the Copyright Alert System—aka the "six strikes" program—will be pleased that an Indiana district court judge has granted a motion by plaintiff Malibu Media, operator of X-Art, that sought to have the court force Comcast to hand over data gathered as part of the program, which Malibu would then use in its copyright infringement lawsuit against Kelley Tashiro, a female nurse from Indianapolis. (Assuming, of course, that the data supports its charges against the defendants.) According to Ernesto, "The company had trouble proving that an infringement actually took place. But instead of backing down, they put their money on the six-strikes warnings databases. Malibu asked the court to order Comcast to release all data being held as part of the Copyright Alert System. While Malibu is not part of the program, this data may show that the Internet connection was used to share pirated content on more occasions." Wednesday, in a briefly worded ruling, U.S. Magistrate Judge Mark L. Dinsmore ordered that "Plaintiff may serve a third party subpoena on Comcast and Comcast should comply with Plaintiff’s Subpoena Duces Tecum for deposition as outlined in Plaintiff’s Motion." AVN has previously reported on the controversial "six strikes" program, which became operational in July 2012 after several years in development. Essentially, the program represents a partnership of sorts between the MPAA and RIAA and U.S.-based ISPs, including AT&T, Cablevision, Comcast, Verizon and Time Warner Cable. As TF described the program in 2012, "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," it continued. "While this is true in terms of mitigation measures applied by Internet providers, the tracking of these subscribers doesn’t stop." Indeed, in an MOU signed by the parties to the program, "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.” [Bold added.]   The MOU continues, "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." Now, however, a non-participating member of the group, Malibu Media, has been allowed access to "six strikes" data. In its motion filed with the court explaining why it needs the information, Malibu Media asked for the following documents and deposition topics: (a) Plaintiff’s ability to lay the foundation for the introduction of the correlation of IP Address to subscriber for purposes of use at trial (i.e., laying the foundation that the correlating documents produced by the ISPs are business records); (b) Information about the reliability of the ISP’s correlating technique; (c) DMCA notices and if applicable six strike notices sent to the Defendant; (d) Defendant’s Bandwidth usage; (e) The number of Comcast internet subscribers in Indiana in January 2013; (f) The ratio of IP addresses to internet subscribers as of January 2013. It added, "Each of the above categories of documents and Fed.R.Civ.P. 30(b)(6) deposition topics is highly relevant. Indeed, if Plaintiff cannot introduce the correlating evidence into trial then Plaintiff will lose this case. It is quite simply outcome dispositive." If Comcast does appeal and the order is allowed to stand, it will surely open the doors to similar requests by non-participating companies as well as similar rulings in other jurisdictions, something Ernesto says will only piss off "the RIAA, MPAA and other participants in the Copyright Alerts System." He explains, "The Center for Copyright Information, which oversees the program, has always emphasized that the program respects the privacy of Internet subscribers. Having it used against alleged downloaders by copyright holders that are not even part of the scheme is bad PR for them, to say the least." In related news, Intellectual Property Watch reported late last month, "The groundbreaking Copyright Alert System set up a year ago by internet service providers and copyright holders to stop unauthorised music and film downloads, saw 1.3 million alerts sent out in it its first 10 months, according to a new report. And it expects to double in size this year." Others are starting to weigh in on this development. Chris Morran at The Consumerist, in a piece titled "Porn Copyright Trolls Trying To Use 'Six Strikes' Warning System To ID Pirates," observed today, "The evidentiary worth of Six Strikes notices is also debatable, as one of the underlying ideas of the system is that users may be falsely identified as pirates. That’s why there is a built-in appeals process with Six Strikes. The mere listing of an account as having received a strike is not a definitive indicator that he or she actually pirated any content."