US Copyright Group Says BitTorrent's Architecture Explains Why It's Ok To Lump 5,000 Defendants Into One Lawsuit
from the they-could-all-be-sharing! dept
US Copyright Group (really DC-based law firm Dunlap, Grubb & Weaver) is the group that famously has sued thousands of people not to actually take anyone to court, but in an attempt to find out who they are so it can send them "pre-settlement" letters, demanding payment of thousands of dollars to get them to drop a potential lawsuit. Of course, for this "business model" to work, it can't actually get involved in costly lawsuits or even go to the trouble of spending the fees involved in filing lots of separate lawsuits in the location where the defendants actually live. So it lumped them all together into a single lawsuit in DC. Lots of folks quickly pointed out that this seems to violate the law, and the judge in one of the cases has asked USCG to explain why she shouldn't dump all but one of the defendants from the suit.THREsq is reporting on USCG's response, where it tries to defend lumping all of the defendants into one giant case through the somewhat amusing claim that, due to the way BitTorrent works, all the defendants are linked because (who knows!?!) all of the defendants may have actually shared bits of the file with each other! Seriously.
Under the BitTorrent protocol, the initial file-provider intentionally elects to share or upload a file via a BitTorrent network.... This is called "seeding." ... Other users ("peers") on the network connect to the seeder to download.... As additional peers request the same file, each additional user becomes a part of the network (or "swarm") from where the file can be downloaded, which means that such additional user's computer is connected not only to the seeder/uploader but also to other peer/downloaders.... Unlike the older P2P protocols, each new file downloader is receiving a different piece of the data from each user who has already downloaded that piece of data, all of which pieces together comprise the whole.... This means that every "node" or peer user who has a copy of the infringing copyrighted material on such a network--or even a portion of a copy--can also be a source of download for that infringing file, potentially both copying and distributing the infringing work simultaneously....Of course, no one charged anyone with theft here, so it's a bit odd to see USCG claim that "stealing" happened. If that were the case, why not go to the police? But, more importantly, USCG is trying to argue that because BitTorrent involves little bits shared via a swarm, that it makes sense to link all the lawsuits since they may have been together in a swarm.
This distributed nature leads to a rapid viral spreading of a file through peer users, all of whom are both uploading and downloading portions of the file simultaneously.... As more peers join the swarm, the likelihood of a successful download increases... Because of the nature of the BitTorrent protocols, any peer that has downloaded a file prior to the time a subsequent peer downloads the same file is automatically a possible, and even likely, source of the file for the subsequent peer.... Essentially, because of the nature of the swarm downloads as described above, every infringer is simultaneously stealing copyrighted material through collaboration from many other infringers, through a number of ISPs, in numerous jurisdictions around the country.
I can't see how that actually makes any sense. Each of the actions were done independently, and there's no evidence presented that these all were actually a part of the same swarm.
On top of that, I do wonder if calling out some of the specifics of how BitTorrent works could actually do harm to any case that actually goes to court (as if that will ever happen). Some have pointed out that with the way BitTorrent is set up, that anyone doing the sharing is contributing such a minimal part to the whole (something USCG seems to be admitting here), that users have a stronger (though, certainly not concrete) fair use claim, in that the amount they share/receive is tiny and not a large portion of the file.
Either way, this response seems pretty weak, and hopefully the judge agrees.
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Filed Under: bittorrent, copyright, joinder, linkage, misjoinder
Companies: us copyright group
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Well, that makes sense
(Coming soon, to a neighborhood near you. Possibly very near.)
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Re: Well, that makes sense
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Re: Well, that makes sense
the reality is that this is basic conspiracy theory: in order for each of these people to have a copy of this material, it is likely that each of them at some point or another either traded data or traded data with someone who traded with them, etc. six degrees of trading a file. it is actually a potential major legal weakness in bit torrent piracy. everyone is linked together, proving one implies all the other by simple conspiracy.
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Re: Re: Well, that makes sense
...or somebody who doesn't even own a computer has been identified by mistake (this has happened)
...or somebody owning a device not capable of downloading a torrent has been identified (this has happened)
...or their supposedly secured wifi has been hacked and is being used without their knowledge (this has happened)
...or they did not download any copyrighted material despite being linked to the torrent (see my post above)
The only reason these cases don't get routinely laughed out of court is that the burden of proof is much lower for civil cases than for criminal. If these were in a criminal case, the "evidence" usually supplied would not be acceptable to prosecute.
Meanwhile, they're doing nothing to convince people to actually, you know, buy the DVD.
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Re: Re: Re: Well, that makes sense
I doubt they care about that.
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Guilt by association. So if I talked to (exchanged information with) a drug dealer that makes me a drug dealer because I am associated to them. Typical IP maximist logic.
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Re: Well, that makes sense
the reality is that this is basic conspiracy theory: in order for each of these people to have a copy of this material, it is likely that each of them at some point or another either traded data or traded data with someone who traded with them, etc. six degrees of trading a file. it is actually a potential major legal weakness in bit torrent piracy. everyone is linked together, proving one implies all the other by simple conspiracy.
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Re: Re: Well, that makes sense
But that argument could only be applied after the defendants had been identified. Even if one accepts you idea about conspiracy at face value, at this stage the defendants are arguing about whether they are part of the conspiracy or not, and that means that each one is likely to have a different defence, and therefore needs to be considered separately.
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Re: Re: Re: Well, that makes sense
further, the brief pretty much makes it clear: with nearly 5000 defendants, and potential each one being a source at some point for the material that have gone to others, you would need only a single defendant in the jurisdiction for it to be valid in the jurisdiction, as at least part of the conspiracy happened there.
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Re: Well, that makes sense
Turn in your neighbors!
Think of the children!
Stop terrorism!
End Communism!
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Each user downloaded the file independently and the method in which the file was downloaded makes no difference: it could easily have been downloaded from a file-locker, streaming site, usenet, ftp or whatever. Not all these users downloaded the file at the same time, so it is disingenuous to claim they were all in it together.
Bittorrent users are rarely ever a massive swarm of users. The overlay network is for many different reasons fragmented, especially for popular files, even when the clients are connected through the same tracker. For instance, some users may be unreachable by others for technical reasons like network slowness/timeouts, or they may only be connected to a tiny number of other users (typically 40 or 50) compared to the size of the overall swarm. Also, not all users seed -- as far as they can prove, all the sharing could have been done by one person.
Most importantly, can USCG provide evidence that all these users downloaded the *same exact* file, or were their lackeys monitoring a number of *different versions* of the films? Or, are they caught in a lie?
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As for the actual case, it would be interesting to see how the defences against even single infringement notices would play out. For example, some people will probably have been misidentified through either ISP incompetence or 3rd party malice. One or two people might have actual fair use claims (for example, most torrents include artwork and/or a sample file and programs allow you to select the files to download within a torrent - surely those only downloading a 20-30 second segment would have a legitimate fair use defence?). The odds of having legitimate defendants on a case surely rise exponentially if you try to include them all.
I wonder how these will affect the ultimate decisions, let alone the technical aspects of torrenting that means that many people would honestly not have been aware of the uploading. Meanwhile, the actual losses incurred by this lawsuit will almost certainly outweigh whatever was "lost" through torrents.
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Um, what? Any one piece is a tiny bit of the original. And they're not (barring one seeder and one leacher) being shared with just one person. Frankly, it's hard to see how that could be considered anything but.
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There are also other reasonable limits to fair use, but I wouldn't want to argue that up - or down - loading a torrent file fell within the bounds of any of them in a court of law.
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Huh? So fair use doesn't cover unusable fragments? Hookay. Are you saying portions of a torrent aren't usable?
"You can take a few sentences from a book ..."
Fine. What if a few hundred of us do that?
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Do you understand the meaning of the word, "use"? By definition if it's unusable, there can be no fair use. Of course, if it's unusable there's no reason to sue you for it, either. Ok, whether a portion of a torrent will be usable or not depends on what it is. small piece of DVD, probably not usable. Small piece of a text document, probably usable.
"You can take a few sentences from a book ..."
Fine. What if a few hundred of us do that?
You all teaching a class?
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Yes, but you're not paying attention.
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So if someone started the download, did not complete it for whatever reason, how can they be charged with infringing if the part they got is useless without the whole? How would you prove they got the whole file?
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1. a copy of the movie
2. a 20 second sample of the full movie
3. a text file with information about the encoding and more information about the movie
4. a copy of the DVD's front cover
5. a copy of the movie's trailer
6. a zip file containing subtitles (i.e. fansubs) in several different languages
A torrent client will allow you to download any or all of those files - you usually have the choice when adding the torrent. It's quite conceivable that somebody just wanting to check out the trailer or check out a sample - or download fansubs that in a language not supplied on the DVD in their region - will not download the movie itself.
The point is that a person doing this will usually NOT have been involved in uploading or downloading the movie. therefore, you can argue a fair use (sampling a short segment of the movie) or uncopyrighted/CC material (the text file and fansubs) even though they're technically part of an infringing torrent.
Some of these files might have questionable legal status - I know that studios tend to try to stop people from "unauthorised" distribution of trailers even though the whole damn point is that people watch them and want to buy the movie. But it's nowhere near as cut and dried as it might seem at first glance, even if all 5000 people have been correctly identified (unlikely).
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It just seems to me to be yet another wasteful and inefficient strategy that will ultimately do nothing to either encourage legal purchases or regain any of the "lost" money, but get plenty of bad press and newly forged enemies for the movie industry.
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they arent trying to build a boat, they are trying to plug the gaping hole in the side that is sinking it.
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I haven't seen The Hurt Locker, but I tend to like both bomb disposal films and Bigelow's body of work.
However, the digital download of the movie is more expensive than the DVD. The UK release of the DVD is missing the commentary and other extras present on the American DVD so is not an attractive product. Thanks to region coding, I am not allowed to play the US import on my primary DVD player (an XBox 360, which I am not willing to hack as I like being able to access Live). Therefore, I was unsure of whether I wanted to buy the DVD - these actions have cemented the fact that I will not.
They are causing their own problems, and morons like yourself would do well to stop defending them while they're shooting themselves in the foot.
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There's a choice to be made here
OR
decide that individual fillings make the law unenforceable and allow this.
If the judge requires individual filings, and entertainment [shortsightedly] follows through, the court load may spur a law change. Since congress is bought and paid for, the changed law will be to the citizen's detriment.
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Re: There's a choice to be made here
In other words, enforcing copyright law means you get to lump possibly guilty parties in with innocent parties and litigate them all at once, even though none of them know each other.
Maybe a better solution is to not have unenforceable laws at all.
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Re: There's a choice to be made here
further, the judge would have to consider the implications for the legal system. what would the court system look like with tens if not hundreds of thousands of cases dropped into the system all at once? each one of those suits would have to be treated on its merits, and could not dismissed en block.
i think what the judge did here was take care of a potential route of appeal up front, making the plaintiff at least put something on the table to take care of the issue. i suspect the ruling will be "we move forward as a group" and see where it lands.
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I hope that "there would be too many lawsuits" is not a sufficient reason to skirt around joinder rules.
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of course, they could always argue RICO covers this situation.
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see, i understand. you on the other hand are a poor version of the usual shoutdown clown, which suggests he is on a day off and mike had to have one of his other lackeys do the job.
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Also, suppose this scenario: you have 5000 people that have only small portions of the file (not the complete file, so it is useless) and have stopped downloading, but the chunks add up to one complete file. This means that, if anyone connects, they can get a complete file. Only one person infringes on this setup (the "new" guy connecting to get the file), despite the fact that 5000 people are connected to the torrent, seeding it, and have only small parts of the file (as you described). You have 5001 people, with only 1 of them infringing.
Also notice that no one is stealing anything here. Unlike the car, in the end, you can have millions of copies built from those chunks, unlike the car.
So you see, you don't understand all that much.
(PS: the guy that can rebuild a stolen car from 5000 individual pieces should either get a praise for reassembling a car from that many pieces alone or be arrested for stupidity and not stealing).
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Bit torrent is a protocol, it can be used for good or evil. But you knew that ... so, by what logic would you propose the protocol be declared illegal? Would this logic be similar to that used in gun control legislation? What else might you want to include in this proposal? Possibly that all internet connections allow government installed spyware to track your every click in addition to recording audio and video. What a wonderful world you envision for the rest of us. I'll pass thank you.
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And yet, we have free speech.
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that changes have been made over the years to bit torrent specifically to avoid detection, or to get around legal restrictions placed by judgements against file sharing would be a good place to start.
you see, bit torrent isnt just a protocol, its a company:
http://www.bittorrent.com/company/management
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You would think, that for someone who so insists that everyone else has it wrong, and he alone has it right, that e.e. trollings here would at least do a *little* checking to realize that BitTorrent, the protocol, and BitTorrent the company are two different things.
In fact, BitTorrent the company has worked hard to do deals with Hollywood and the entertainment industry, and for the most part has not been a part of any effort to avoid detection -- most of which are done by other companies.
But, of course, details are not his strong suit.
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bit torrent as a company and minder of the protocol are not unaware of the issues, and they have not shied away from supporting modifications and extentions to the protocol created to aid in the illegal distribution of ip.
you know it, i know it, but then again, acknowledging reality on these sorts of things isnt your strong suit.
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"who is the leader of the open source movement "
"who has modified or supported modifications in the past specifically to help pirates to use bit torrent protocol to avoid legal issues"
All of the above -> irrelevant.
You imply there is illegal activity associated with the design, creation and maintenance of a protocol. Please specify, exactly, what statutes are being violated and give detailed reason for each - otherwise I assume you are blowing smoke.
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(on the basic assumption the URL bears some relation to a website's function, of course).
Simply, accessing either is via the http protocol. Since it can be used for illegal file sharing (you can download an infringing file from a web page) using that protocol, you evidently support banning it too. Extrapolating it further why are you using a protocol you think should be illegal ?
Next you'll want to get rid of dihydrogen monoxide because it's a cause of many drownings.
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BitTorrent copied this architecture...
The fact multi-source downloading is associated with BitTorrent has always been a mystery. I think everyone just didn't quite understand the fact that every other major p2p company was already doing it when BitTorrent came along, and that became the headline reporters used to explain what was different about BitTorrent.
So, "legally" (emphasis on quotes), this crazy approach applies to almost all p2p architectures out there!
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C'mon...
Seriously though, I'd love to see a "my share ratio was less than one, so I was actually impeding, rather than assisting, the infringement of others" defense in court.
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Also....
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Why does that *not* make even a lick of sense - even for a moron in a hurry.
But - hey, I guess the same argument could apply in the corporate world.
Let's say 'Mr. Doe' at said lawfirm of Kanwe, Cheatem, and Hoewll commits a crime with the company computer system. Then ALL employees of the firm could be charged and ALL go to jail in the same single trial - because, of course, those computers 'shared network switches' and servers.
WTF ever, lol
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You are absolutely correct - because corporations are now people.
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3 people plan to rob a bank, one of them gets the gun, one of the drives the get away car, and one of them commits the actual robbery. guess what? each of them is guilty of consiracy to commit armed robbery, and if someone was killed during the robbery, they could all be in really, really deep.
your "three different parties share a gun to rob banks" isnt the same because they are three separate crimes. not the same.
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My senerio...
Right? Right? yeah you all are now waiting for your mail to come...
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Re: My senerio...
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BY the same rationale
WHO THE HELL CARES ABOUT CITIZENS RIGHTS
not these people
greedy fuckin lawyers, hollywood drug alcohol crazed morons
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oh and
then stops
then you all have a copy of the original file
then someone gets a copy of that
YOUR in affect getting a copy of a copy right
THE original uploader didn't give it to you he may have died and or the aliens took him back to civilization where the gene roddenberry replicators not only copy files but food
YES FOLKS its just damn evil not to share and copy
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Copyright infringement/violation/theft and legal definitions !!
No, not even the entire file being downloaded is an infringement, nor is it theft of the file.
What it is, is the violation of the copyright of the legal, right full owner of the copyright.
You are not stealing a song, or a file, or data, you are taking away from the right full owner his right to copy his work as he wishes. As defined by copyright law.
So it is theft, and you do take away from the owner intangable property, and that property is his copyright, not the song or movie or book, its the copyright of that works, the movie, song etc.
The technical details of bittorrent or FTP or http or whatever has no bearing on the end result, its not the way you steal, its the fact you have, and your intension in doing so.
That is how the law looks at it, and how society looks at it, and if you read copyright law, you will see its the copyright that is being stolen, not the material.
Everyone who goes onto bittorrent, has specific INTENT to gain a file or content they desire. The technicalities of file transfers, means that you have to download the complete file, for it to be at all usable. Download part of a program, movie or song will result in a checksum error or a failed attempt to view the movie etc.
Everyone who gets on bittorrent, who become leaches **and** seeders are all there with the intent to gain the full file, the complete work, and while you gain that, the data that you have allready downloaded, is available for upload. Meaning at 100% download, and or all of the file on your computer will be download by other sharers.
You cannot claim fair use, even by the weak definition of that term used here.
You would expect to be able to claim fair use, because you only download a file a bit at a time ?
What about the 4 point balancing test for fair use?
COPYRIGHT INFRINGEMENT:
Copyright infringement (or copyright violation) is the unauthorized or prohibited use of work covered by copyright.
In a way that violates one of the copyright owners *EXCLUSIVE RIGHTS*, such as the right to reproduce or perform the copyrighted work, or to make a derivative works.
What that means is that you dont steal the song or movie, you steal the copyright owners exclusive rights.
That is the theft, and that is the intangible property you steal off the right full owner of the copyright.
So we should not hear from people who should know better that "its not theft" as you are not taking away anything.
You are, your taking away his property, his copyrights.
____________
Mike said:
"I can't see how that actually makes any sense. Each of the actions were done independently, and there's no evidence presented that these all were actually a part of the same swarm. "
Actually, you cannot do these actions independently, you are very dependent on the seeders, or the original seeder. You cannot do anything to get a file independently, unless you produce that file yourself.
If you are downloading something (again source of the crime is not important), then someone is uploading it, on torrents that is often hundreds, or yes 5000's or more for a popular file.
There was well over 5000 seeders and leechers for the michiel jackson movie on PTB, it would have been a trivial exercise to log the IP addresses of the partcipants.
Then if you are honest, and did not download/upload the file, you have nothing to worry about. Your what they call innocent.
If you did download the file, and lets face it here, you dont go to pirate bay to download a part of a file you dont want right..
Those 5000 were there for a reason, the same reason everyone else goes there, to download files.
They had INTENT, and that is all you need.
I would say it would be more closely aligned to organised crime, rather than individual actions.
THEFT:
The 'actus reus' of theft is usually defined as an unauthorised taking, keeping or using of another's property (interlectual property in this case), which must be accompanied by a 'mens rea' of dishonesty and/or **INTENT** to permanently deprive the owner or the person with right possessino of that property or its use.
(ie, permanently deprive the owner of exclusive rights to copy his works).
"actus reus', appropriation, the assumption of any of the owners rights. (not necessilary ALL the right).
Copyrights, is "rights".
"Belonging to another", that property belongs to another if that person has ownership, possession, or a proprietary interest in the property. (as with copyright).
'Mens Rea'
"intention to permanently deprive, as treating the property as it belongs to the accused, rather than the owner".
That means the owner has the *EXCLUSIVE* right to copy his works, you are permanently depriving, the right full owner of the right to exclusively copy his works.
You are commiting, THEFT, by the very legal definition of the term.
And yes you are also violating, infringing specific laws,
So what of the defined defenses do you propose to use to defend against the claims that anyone who downloads a complete file, does not in breach of the law, of copyright, and is by definition theft.
And Mike if a theft occures, you dont necessarily have to call the police.
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Re: Copyright infringement/violation/theft and legal definitions !!
You are the worst type of idiot. A right is not property, and you know it. You can't "steal" a right to an exclusive monopoly-- but you can infringe on it.
Then if you are honest, and did not download/upload the file, you have nothing to worry about. Your what they call innocent.,/i>
Right, because lawyers don't charge you if you tell them you're innocent. I don't know about you, but if I have to pay a lawyer and take time off work to prove I'm innocent because the plaintiff doesn't want to be bothered to do their due diligence *because it would be too much work* then I'd consider that a misuse of the legal system.
And Mike if a theft occures, you dont necessarily have to call the police.
No, you don't. But if you call the person who has stolen from you can threaten to call the cops unless he gives you $5,000 then you are now guilty of extortion, aren't you?
Also, if they are all accused of sharing 1 file, then the MAX that can be awarded is $150,000 divided by each defendant, right?
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Re: Re: Copyright infringement/violation/theft and legal definitions !!
May be im the worst type of idiot, but can I say you are the best kind of idiot.
"A right is not property, and you know it".
Do I, so why are patents and copyright, blanked under interlectual PROPERTY laws.
A right is property, you have a right to drive a car if you own a licene to do so. Your right and the license is property, no one else can use your property (the right to drive as determined by your licence) to drive a car.
You have a right to drive a car, using your property that is enshrined in your drivers license, no one else has that right, **under YOUR drivers licence and rights**.
You license to drive is your right, and your property.
Its also a physical manifestation of interlectual property.
Your right to drive with the property of that right enshrined in your licence, is **interlectual property** ie you have to display specific knowledge of driving and road rules to be allowed the right to drive.
So rights are **property** by the legal and normal definitions of the term.
If you are found guilty of sharing 1 file, (not accused) then the MAX according to you is $150000.
You might want to look up the US "NET" legislation, that makes the fine $250,000, and or 5 years inside with some VERY friendly people !!.
"NET" stands for "network electronic THEFT" legislation, you might want to check it out, so you actually know what your talking about.
But just saying that copyright is not physical property, or property is just wrong, may be you should look a little further than Mike for your information.
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Re: Copyright infringement/violation/theft and legal definitions !!
Torrents often contain several files. It is easily possible to download and view only one of those files. Even with movies, it is possible to view partially downloaded movies by simply pointing VLC at the temporary files. I quite often do this to watch a couple of minutes worth in order to assess if it is worth buying the movie or going to the cinema to see it.
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Y'all thieves
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Darryl
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