Tiscali’s response breaks down each of three BPI requests. On the most paramount subject of suspension, Tiscali flatly refuses to comply with the BPI’s request for the remaining 16 accounts. Citing a lack of evidence, Tiscali refutes the BPI’s contention that their evidence is “overwhelming.”
“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.”
Tiscali then provides the BPI with four standards it must adhere to in order to suspend the accounts:
“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; and
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.”
Expanding on the requirements necessary to suspend the one account that marginally adheres to Tiscali’s burden of evidence; the ISP articulates that it will not require its customers to adhere to the BPI’s “undertakings.” In lieu of potential litigation seeking damages, the BPI instead seeks to suspend Internet accounts until such time the alleged pirate agrees never to engage in such behavior again. This portion of their response is particularly significant, as it snubs the ideal that an ISP, or the BPI for that matter, is the judge and jury in deciding the merits of online copyright infringement. If the BPI wants a suspected customer to never engage in copyright infringement, the deal must be reached between the BPI and the customer - by following the proper court protocol.
“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
In a setback to the BPI’s cost effective approach, which in theory avoids dealing with the courts and placing the onus on ISPs, Tiscali again unilaterally declines to reveal any details of the suspected unauthorized file-shares.
“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.”
In a request not defined in the July 10 press release by BPI, the trade organization made the curious request for at least Tiscali to enter a legal agreement obliging them to provide such information when demanded. It’s a peculiarly designed request; one that is likely designed to ensure a streamlined approach for future enforcement. Tiscali however, wants no part of it, and hints at a legal showdown if push comes to shove.
“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.”
Matt Phillips, Communications Manager for the BPI, was encouraged by Tiscali's response. He informed Slyck.com that the BPI saw this development as cooperation
, and will give Tiscali the necessary information they require to proceed.
Cable & Wireless, the other ISP on the receiving end of the BPI’s request, had a considerably limited response.
“Cable & Wireless and its ISP, Bulldog, have an acceptable use policy that covers illegal file-sharing. This would normally mean that any accounts used for illegal file-sharing are closed. We will take whatever steps are necessary to put the matter right.”
When asked whether each case would be investigated, Slyck.com was informed that no additional information on this matter would be divulged. However, if they conduct business in a manner that is remotely similar and professional as Tiscali, it appears the BPI’s new effort for a more productive and cost effective approach to enforcing copyrights online may be over before it begins.