Original URL: http://www.theregister.co.uk/2006/07/12/tiscali_bpi/

Tiscali and BPI in filesharing standoff

C&W keeping well out of it

By Lucy Sherriff

Posted in Media, 12th July 2006 12:19 GMT

Tiscali, the ISP accused by the British Phonographic Industry (BPI) of harbouring at least 17 filesharers, has said it won't close any accounts without more evidence of wrongdoing from the music industry body.

It also said it would not hand any personal details over to the BPI without a court order, in line with its obligations under the Data Protection Act.

The BPI on Monday wrote an open letter to both Tiscali and Cable&Wireless, demanding that the ISPs close the accounts of 59 individuals it claims are large-scale filesharers.

Tiscali responded late Tuesday afternoon, by questioning the quality of the evidence provided, and refusing to identify the account holders without a court order.

The BPI is quite content with the response, and says it is "hugely encouraged" by the ISP's willingness to cooperate.

Some of you may wonder if the BPI has read the same letter the rest of us have, (see page 2) but Matt Phillips, spokesman for the BPI, is adamant that he isn't merely taking a glass-half-full approach to the ISP's response.

"The first thing is that they've already moved to suspend one account. Yes, they wanted more evidence - we could challenge this in court, but we're happy to provide it. We're pleased they are willing to cooperate," he told us.

He added that the BPI was confident it would be awarded the court order it needs to force the ISPs to hand over the names of the alleged filesharers.

"ISPs have had lots of time to introduce their own measures to combat filesharing, but these are obviously insufficient," he went on. "It was not a legal threat, we just decided to make an open plea for cooperation."

The BPI has previously pursued 139 individuals it alleges breached copyright by filesharing. Of the 139 cases, 111 have been settled out of court.

It says it only targets major uploaders, and that the IP addresses it handed over to the ISPs were involved in activity that is "on a par" with the previously prosecuted cases.

By approaching the ISPs instead of going straight to court to pursue individuals, the BPI might be signaling that its appetite for legal action against individuals is waning. It remains to be seen how the organisation will pursue these latest cases, if indeed it gets the information it is after, but it may be that getting any offending accounts closed will be enough.

Cable&Wireless refused to comment beyond its earlier statement, in which it said accounts used for illegal filesharing would normally be closed.

The Tiscali letter in full:

Alleged Copyright Infringement

Suspension and Disclosure of Customer Information

Thank you for your letter dated 10 July 2006, notifying us of your allegations that certain customers of Tiscali UK Limited ("Tiscali") have and continue to infringe the copyright in various sounds recordings owned or controlled by certain members of The British Phonographic Industry Limited ("BPI").

In your letter, you request that Tiscali:

  1. suspends the relevant customers until such time as they enter into an undertaking with the BPI in the form required by you;
  2. discloses the personal details of the relevant customers to the BPI;
  3. itself enters into a legal agreement with the BPI obliging it to do the above.

I will deal with each of these issues in turn below.

Firstly, however, I would like to be clear that Tiscali does not support or condone use of its network for abuse or infringement of copyright.  Tiscali has a history of co-operating with those investigating any such matters, within the limits of its own legal obligations and whilst respecting the legal rights of our customers.  Moreover, Tiscali has done a great deal of work to further the development of the legitimate online music community and has developed and enjoys an excellent working relationship with most of the major record labels in the UK and many independent labels, the majority of which are your members.

Suspension. You have sent us a spreadsheet setting out a list of 17 IP addresses you allege belong to Tiscali customers, whom you allege have infringed the copyright of your members, together with the dates and times and with which sound recording you allege that they have done so.  You have also sent us extracts of screenshots of the shared drive of one of those customers.  You state that such evidence is "overwhelming".  However, you have provided no actual evidence in respect of 16 of the accounts.  Further, you have provided no evidence of downloading taking place nor have you provided evidence that the shared drive was connected by the relevant IP address at the relevant time.

Similar requests we have dealt with in the past, have included such information and, indeed, the bodies conducting those investigations have felt that a court would consider it necessary to see such evidence, supported by sworn statements, before being able to grant any order.

Therefore, in order to assist you, we will require the following information from you:

  1. in respect of the remaining 16 IP addresses, please provide screenshots of each user's shared drive so that you can prima facie establish communication to the public;
  2. in respect of all 17 IP addresses, please provide evidence that shows that the user id is connected via the IP address concerned at the relevant date and time;
  3. if you wish to establish that downloading is taking place, please also provide evidence of this;
  4. as these IP address are dynamic and are allocated to a user upon connection for the duration of the connection only, please confirm that the timings provided are all BST, so that we may accurately identify the customer details.

In the meantime, we have contacted the customer, in respect of whom you have provided partial evidence of communication to the public of copyrighted sound recordings and have given such customer seven days from the date of receipt of our letter to provide an explanation.  Should we not receive an adequate explanation during such period, we shall suspend the user's account pending resolution of your investigation, assuming by that time we have received evidence from you of a link between the user account and the IP address at the relevant time.

At this point, I would like to make it clear that a similar procedure will be followed in respect of the remaining 16 customers, once you have provided proper evidence.  Tiscali does not intend to require its customers to enter into the undertakings proposed by you and, in any event, our initial view is that they are more restrictive than is reasonable or necessary.  However, should you wish our customers to enter into your undertakings, you will need to approach them directly.  It is a matter for them to decide whether they wish to enter into such undertakings or defend proceedings against them in the courts.  It is not for Tiscali, as an ISP, nor the BPI, as a trade association, to effectively act as a regulator or law enforcement agency and deny individuals the right to defend themselves against the allegations made against them.

Disclosure of customer details. As you will already be fully aware, Tiscali will not be able to disclose customer details to you unless you obtain a court order requiring us to do so.  To disclose without a court order would put Tiscali at risk of breaching the terms and conditions of its customer agreements, and the provisions of the Data Protection Act 1998.

Tiscali Undertakings. As we have mentioned above, Tiscali has always co-operated with investigations into alleged infringement conducted by copyright owners, whilst observing its own legal obligations and respecting the legal rights of its customers.  In the circumstances, we do not consider it necessary nor desirable to enter into such undertakings nor do we believe that, in circumstances where we are co-operating with your investigation in the manner we have outlined in this letter, that a court would require us to do so.  Furthermore, we do not believe that you have at present satisfied the requirements of section 97A of the Copyright Designs and Patents Act 1988 with the information you have provided.

We look forward to receiving the information requested above.

Yours sincerely

Tiscali UK Limited