Those of you following the P2P scene may have read my recent coverage of the bad luck that has befallen Santa Monica-based MediaDefender, Inc, whose primary goal, it seems, is to poison and thwart material on P2P networks. In case you haven’t, you may want to go back and check those stories out.

Recall also to early last July, where it was discovered that video-sharing site MiiVi.com, also appearing as MiiVi.net, was wholly owned and operated by MediaDefender, and more importantly, owned in secret: MiiVi made no mention of its association with MediaDefender on the site, and the only reason the site was unmasked was because of poorly maintained DNS records, which straight-out listed MediaDefender employees as primary contacts.

Understandably, a brief e-mail from MediaDefender CEO Randy Saaf appeared in my inbox shortly after publishing the first MiiVi article. In it, Mr. Saaf dismissed the original claims of MiiVi’s intent as “complete fabrications” and demanded we print a retraction. In the interest of fairness Mr. Saaf’s comments were posted in an additional article, where we also wrote that he was quoted on Digital Daily denying on record that MiiVi collected information for legal actions.

So then, what was MediaDefender intending to do with MiiVi?

Unfortunately, the e-mail leak didn’t reveal much about MiiVi’s long-term goals; the majority of content tended to focus on the minutia of the site’s development. Nestled amongst the all the chatter, however, was a copy of MiiVi’s preliminary EULA, of which a clause in the “User Conduct” section proves to be very interesting:

You agree not to use, endorse, or in any other way allow use of the Product to … copy, reproduce, store, transmit, post, submit, publicly display or manage any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright, patent or right of publicity.

This is a relatively innocuous clause, right? Statements like the one above are relatively standard fare for P2P apps, even if they are ignored. The wording sports teeth, however, when viewed in conjunction with the EULA’s listed “Measures and Enforcement” policies (emphasis added):

Your failure to comply with any of the provisions mentioned under the User Conduct section … automatically nullifies any obligation Miivi may have to contact you or provide you with any notice required by this Agreement or by law …  if Miivi believes, in its own discretion, that you directly may be connected with such activities, Miivi may be required to disclose such a conduct and the suspected infringing user's (i.e., your) Data or Information to the proper authorities.

For all we know, these sections may have been edited out in the EULA’s final (or, at least, most recent) form. Maybe MiiVi had no intention of acting on the provisions shown above. But wouldn’t that be a conflict of interest for MediaDefender? Do you think MediaDefender would retain even one of their clients if their clients knew about a MiiVi that took a permissive stance on piracy?