Archive for December, 2014

It occurred to me that there is some confusion as to the effect the amount of time ISPs keep IP address logs (linking a particular IP address to a particular subscriber) have on whether those records will be available to the copyright holder if a lawsuit is filed after that time period has elapsed.

The question that sparked this post is as follows:

If CEG-TEK hasn’t subpoenaed someones identity, but the ISP only retains IP information for one year, then after a year it would essentially be impossible for CEG-TEK to obtain the identity correct?

My answer:

In order to understand what is going on, it is important to know who-is-who, and who does what.

I: CEG-TEK (a.k.a. Copyright Enforcement Group):  CEG-TEK hasn’t sued anyone in two years, and thus there are never subpoenas sent to the ISPs.  CEG-TEK is hired by the copyright holders 1) to track the IP addresses of accused downloaders, 2) to maximize the settlement payment by establishing connections between current accused downloads and other “older” downloads that happened at that same location (using IP address geolocation data), 3) to elicit payment in the form of “settlements” from the accused users via their settlement website, and 4) to provide attorney enforcement for those who choose not to settle via the website.

How they do this: CEG-TEK establishes relationships with the ISPs (internet service providers, e.g., Charter, CenturyLink, Giganews, etc.) and they arrange for the ISPs to forward the DMCA settlement demand letters to their subscribers.  CEG-TEK has a website they use to elicit payments from accused downloaders.  Lastly, they have attorneys (e.g., Marvin Cable) who follow-up with accused downloaders (sometimes asking for increasingly larger amounts of money).  Contrary to what is said by the attorneys, neither CEG-TEK nor their lawyers [at the moment] sue people.

II: COPYRIGHT HOLDERS (generally, the production companies): After failing to receive a settlement via the CEG-TEK settlement process, the copyright holders themselves hire out attorneys who enforce their copyrights against those subscribers who “ignored” CEG-TEK’s offers to settle.  Sometimes the attorneys are no-name attorneys, and other times, they are prolific copyright trolls such as from the law firm of Lipscomb and Eisenberg (best known as the attorneys for the Malibu Media lawsuits).

III: ISPs (internet service providers, including Universities and select VPN service providers): ISPs generally hold IP address data (and to which subscriber it was assigned to, and on what date) for one year — check your ISP’s “IP retention policy.” Congress and the RIAA/MPAA are pushing to increase this amount of time to 18 months.  For comparison purposes, in 2010, IP address data was kept for only 6 months. 

NOTE: After the ISP’s “IP retention policy” time limit elapses, if there are no copyright infringement claims, legal claims or requests on a particular IP address assignment record, they will purge that record from their database, meaning that lawsuits, subpoenas, or requests filed AFTER DESTRUCTION will not reveal the subscriber’s identity because that data is no longer available.

HOWEVER, most ISPs have a SECOND DATABASE — this second database holds IP address assignment records which have had claims of copyright infringement asserted against the subscriber, and these records are often kept indefinitely. Thus, if a lawsuit happens YEARS later (even after the IP retention policy date has expired), the data indicating which subscriber was assigned what IP address on what date and time IS RETAINED and will be available to the copyright holders and their attorneys when suing subscribers.

Lastly, (and I did not include this in my initial response,) it is my experience that ISPs generally forward DMCA settlement demand requests LITERALLY WITHIN DAYS of the accused download actually happening.  For example, Charter literally pumps out letters to their subscribers FOUR DAYS after the downloads happen.  Now obviously there are hiccups where a subscriber will receive a pile of infringements at one time, or an infringement notice is withheld until after the CEG-TEK due date has passed, but in my understanding, when this happens, it is either a business-related issue between CEG-TEK and the ISP, or a staffing issue in the subpoena / abuse department at the ISP.

Thus, where CEG-TEK is concerned, I have never heard of a situation where CEG-TEK demands that the ISP forward a letter to a subscriber and the ISP denies that request based on the ISP’s IP retention policy making the subscriber’s information unavailable.

As far as copyright lawsuits in general, yes, the IP retention policy does factor in to when a lawsuit is filed.  I have personally seen a handful of copyright infringement lawsuits filed against John Doe Defendants fail because the ISPs were unable to identify the identities of the accused subscribers because the plaintiff took too long to file the lawsuit (or a judge took too long to approve the subpoena to the ISP demanding the identities of the accused subscribers), and by the time the request or subpoena was received by the ISP, the IP address assignment records were already purged.

Thus, even though a plaintiff copyright holder does have three years from the alleged date of infringement to file a lawsuit against an accused subscriber, they are still bound by the ISP’s IP retention policy if they wish to ever identify the accused subscriber.  That being said, it is the “SECOND DATABASE” which trips up most individuals, as many individuals accused of copyright infringement are not aware that ISPs keep certain IP address assignment records indefinitely (or for a prolonged period of time), and these IP address assignment records are those which have been flagged by a copyright holder, attorney, or other law enforcement agency prior to the expiration of the ISP’s IP retention policy.

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