The "Six Strikes" Copyright System Is Already Being Used in a Lawsuit

When we last heard of the "six strikes" copyright alert system–which set up a framework for ISPs to notify users that they're downloading illicit content, which could then take action against the users if they don't quit–there was a pervasive concern that requiring ISPs to store the alerts sent to users would open them up to being used for legal action. Basically, because ISPs have to keep a record of who's gotten in trouble, the ISPs now have a treasure trove of data for use in copyright lawsuits.

Well, it's only been about a month since the Center for Copyright Information started up the copyright alert system, and already a media firm–porn studio Malibu Media–has subpoenaed Verizon to deliver copies of DMCA notices and six strikes alerts sent to a user, who's being referred to as John Doe, whom Malibu has a pending lawsuit against.

Better yet, Malibu Media also wants Verizon to hand over information about the user's bandwidth usage, whether or not the user watched content that the user is also accused of pirating (perhaps to build a case against Doe for hosting content by claiming he'd ripped content from his cable service, but I'm not sure), and for any information that would help connect the user to the IP address that was implicated in pirating content, which is a noted problem with the six strikes system in the first place.

According to Torrent Freak, Verizon has refused to comply with the requests, alleging that Malibu Media is overreaching in its attempts to extract user data and, interestingly enough, that Malibu Media is trying to harass Verizon following separate litigation from earlier this year.

Torrent Freak has a longer breakdown of the Malibu-Verizon battle if you're interested in that sort of thing, but the key thing about this ongoing case is that the copyright alert system is already being put into play as a repository of user data.

As I've said previously, I've got no problem with ISPs sending out copyright alerts for myriad reasons, including for the sake of notifying network owners that someone is using their system for a purpose they don't want. But requiring ISPs to keep records of every alert sent out to users only serves to collect more data, against users' will, that will be used as evidence against them, regardless of whether or not the initial alert was valid.

That strikes against how the system was billed. It was sold as being some sort of soft nudge: "Hey, if you screw up, we'll tell you, and if you keep screwing up, then ISPs can throttle your service or something." It was one way to get around the vagaries of tracking down pirates, as an IP address doesn't always correlate to a single user. Instead, a series of alerts would hopefully cut down on piracy without having to resort to legal action.

But that's clearly not the case. Already that repository of alerts–which are meant to be wrist slaps because it's difficult to tell if ISPs have the right wrist–is being requested for use in serious litigation. Whether that litigation is justified or not is irrelevant, as it just serves to show that the six strikes system is largely a cache of key data for potential litigation.

It's telling that Verizon is pushing back, as Malibu is certainly trying to pull a large amount of ancillary data in its request. Still, should Malibu end up successfully forcing the issue, it will set a disappointing precedent in utilizing six strikes data in third-party litigation, which goes against everything the Center for Copyright Information laid out in its initial introduction of what was supposed to be an educational program.

@derektmead