Is Being In the Same BitTorrent "Swarm" Equal To "Interacting"?

NewYorkCountryLawyer writes "In the new wave of bittorrent downloading cases, the plaintiffs' lawyers like to lump a number of 'John Does' together in the same case in order to avoid filing fees ($350 a pop). Their excuse for 'joinder' is the allegation that the defendants 'interacted' with each other by reason of the fact that their torrents may have emanated from the same 'swarm.' In Malibu Media v. Does 1-5, when John Doe #4 indicated his intention to move for severance, the Court asked the lawyers to address the 'swarm' issue in their papers. So when John Doe #4 filed his or her motion to quash, sever, and dismiss, he filed a detailed memorandum of law (PDF) analyzing the 'swarm' theory in detail. What do you think?"

Comments

Sounds a little hokey

[Narrowband]

Did you interact with someone if your telephone call to party A was carried on the same transatlantic phone cable as someone else's call to party B?

Re:Sounds a little hokey

[physicsphairy]

I think it's worth backing up a step and asking why we have these rules in the first place. The robbers in your first example committed the same crime under the same circumstances, they've acted as mutual facillitators, and evidence against one of them is pretty much going to amount to evidence against the other. So it makes sense to have a rule that that level of interaction can result in a joint case.

For the bittorrenting, however, where the crime actually occurs is at the other end of a computer terminal, and those terminals are in very different places. You are probably not going to send a detective to the computer used by one defendant and find any evidence against the other defendant. The defendants don't know each other, and they haven't communicated with each other. You will have to present different cases to prove the identity of the person at the other end of the IP address--one might have a router and claim his friend was using his connection, another might have been at a coffee shop. Information about one of the crimes is just going to be utterly irrelevant to the other in any way other than being the same charge. If the law does allow lumping them together, that would seem like a bad feature.