Internet provider Charter Communications is one of several companies being sued for turning a blind eye to pirating subscribers.
These lawsuits, filed by dozens of major record labels and music companies, allege that Internet providers fail to terminate accounts of repeat infringers.
With a potential billion-dollar damages claim the case is being fought tooth and nail by both sides. It’s currently in the discovery process where both parties request relevant documents and information from the other side to make their case.
This often results in disputes where one party asks for more than the other is willing to provide. This is also the case here. In order to resolve these disagreements, the court was asked to chime in, which happened last week.
Music Companies are Interested in VPN Use
One of the contested issues is a request from the music companies for detailed information about the VPN use of Charter subscribers. Specifically, if and how often subscribers used a VPN to conceal their piracy activities.
The music companies want to know more about this so they can determine “the extent to which “Charter was aware of its subscribers’ use of VPNs to avoid detection, and whether it took any steps to investigate repeat infringers that accounted for these obfuscating tactics.”
This is a broad question which Charter immediately objected to. According to the ISP, answering it would require the company to review all documents associated with any subscriber. Instead, it would like to limit it to the customers who have been accused of copyright infringement.
The court agrees with the ISP. In an order issued by a Colorado district court last week, special master Regina Rodriguez fails to see the importance of the requested data.
“On the record before me, I find subscriber use of VPNs to be of only marginal relevance to the claims at issue here.”
Hypothetical Smoking Gun?
The music companies hoped to find a smoking gun. They argued that there may be a document somewhere showing that Charter knows its subscribers often use VPNs to avoid being caught pirating, and that Charter did nothing about it.
This lack of action would then be a sign that the ISP’s repeat infringer policy isn’t working. Or as they put it to the court:
“If, for example, Charter created a report describing generally how its subscribers use VPNs to avoid detection for infringement, but it nevertheless did not try to curb improper use of VPNs, that would be highly probative evidence related to whether Charter reasonably implemented a repeat infringer policy,” they argued.
The court agrees that this information could, hypothetically, lead to useful info, but it finds that possibility is outweighed by the trouble Charter has to go through.
“While a document such as the hypothetical one Plaintiffs propose may be of some possible relevance to Plaintiffs’ claims, it appears that such relevance is attenuated and speculative such that it does not overcome the burden identified by Charter of ‘searching every communication’,” special master Regina M. Rodriguez writes.
Charter Will Share Some VPN Info
This doesn’t mean that Charter won’t share any VPN-related information at all. When VPNs are mentioned in communications regarding subscribers who were accused of copyright infringement, the ISP will share it.
In addition, Charter agreed to produce work log notes and internal correspondence, which will also include all VPN references. This is sufficient, the court’s special master concludes, denying the request for any further information on VPNs.
How Useful Are VPN Details?
What’s perhaps most intriguing about this discovery dispute is the fact that the music companies plan to use VPN usage as evidence. Thus far, this angle has never been brought up in any related cases.
We also wonder how useful this information can be. If Charter is indeed aware that some of its users use VPNs to conceal pirating activity, how can it respond to this?
An ISP can’t see if a VPN is being used for illegal purposes, so without an explicit admission from a subscriber, Charter can’t take any action. Simply banning all VPN users would be a bit much, as VPNs have numerous legal uses as well.
A copy of the discovery dispute order from special master Regina Rodriguez is available here (pdf).
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