ISP stands up for customers' rights

The Legal department of Tiscali, a UK ISP, sent this letter in
response to demands by a British recording industry association to
disclose information about 17 subscribers alleged to have been
violating copyright.

Full text available at http://craphound.com/tiscalibpiresponse.txt.
Also reprinted below:

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 IndustryLimited ("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; and

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; and

3. 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