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

[masternerdguy]

But this involves the internet which makes it different.

Re:Sounds a little hokey

[Narrowband]

Sort of, but in this day and age, don't many carriers use packet-switched comms rather than circuit based for long distance telephony anyway?

Re:Sounds a little hokey

[MightyMartian]

Or to use a mixed car-superhero analogy, if you're parked in a parking lot when the Incredible Hulk goes on a car-smashing spree, can you be held liable for the other cars being smashed?

Re:Sounds a little hokey

[Anonymous Coward]

That's not the same thing as a swarm though. You make it sound like people were prosecuted because their neighbours used BT, that's on the same cable too.

A swarm is more like a conference call. You share the same line, but you also pass data between each other. As much as I hate the *AA litigation - I think the interaction thing holds up. How the hell else are you going to download from / upload to a swarm if not by interacting with it?

Re:Sounds a little hokey

[Anonymous Coward]

Depends on if you you're speaking realistically, or riaalistically.

Re:Sounds a little hokey

[Anonymous Coward]

I put forward something a little closer to the topic: Is sitting on a toilet connected to the same sewage "system" equal to "giving a sh!t"?

It's all tubes, after all!

Re:Sounds a little hokey

[Sir_Sri]

I think this is probably it. If you are in a conference call you interacted with it. If you disagreed with whatever was decided at the conference call, and then never participated again you could make the argument that 'he offered me drugs, I said no' sort of interaction applies, but if you stuck around you're probably screwed.

Re:Sounds a little hokey

[Narrowband]

Wouldn't quite go that far... more like saying you and your neighbor are both being prosecuted together rather than being tried separately because you both used BT. You may be right about it holding up, but I would see the question more as one of whether you're two individuals interacting with the same technical resource, versus two individuals interacting with each other.

Re:Sounds a little hokey

[koolfy]

This may very well be the worst analogy I have read in a long, long time.

It's perfect.
Perfectly broken.
In every way possible.

Re:Sounds a little hokey

[Oxford_Comma_Lover]

The memo points out that the plaintiff here did not even allege that the accused Does passed data between each other. They may have downloaded the porn at different times.

The memo also calls foul on a hashtag argument. I haven't seen the opposing memo, though, to know if it was any good.

Re:Sounds a little hokey

[dark12222000]

The law here is a bit more complex. It's not just a matter of "interacting", it's a matter of having committed the same crime, at the same time, at the same place.

So, a nice example would be a bank robbery. Lets say you and me robbed a bank together. Clearly, we would be litigated against together, since we clearly interacted.

However, lets say I robbed a bank, and then 20 minutes later, without knowing about my robbery, you rob the same bank in the same way. In this instance, we have not interacted.

How this applies to Swarms is where it gets tricky. If I join a swarm several hours after you've gotten the file, seeded, and left, are we interacting?

Re:Sounds a little hokey

[wisnoskij]

But YOU are not interacting with other people, your computer or bit-torrent program is interacting with other computers/bit-torrent programs.

Re:Sounds a little hokey

[dshadowwolf]

Nope. A swarm is nothing like a conference call, because you aren't interacting with every member of the swarm, but just a few members at a time - restricted by how many connections your bandwidth can actually handle at a given time. Regardless, the reported "offenses" are so separate in *TIME* that there is no guarantee that the Doe's in this case were actually online and part of the swarm at the same time as each other. Even if they were the chance that they actually shared parts of the movie between each other is so low as to be nil.

You really should read the documents linked to - they might be in legalese, but it is close enough to english for just about anyone to follow. And it does explain things simply enough for anyone to be able to understand them. Yes, there is an explanation for how a BitTorrent swarm works in the actual motion and it was written in such a way as to be understandable by any of the legal professionals - including the judge in the case.

And regardless of whether or not "participating in the same swarm" is a legal theory that holds water and fulfills the requirements of the rules, well... There is the fact that these "joinders" benefit only the plaintiffs in the case and create hardships for the joined defendents that break the required "fairness" of the legal system. (Yes, the legal system is supposed to be fair - surprising, no ?) So the joinder should be undone anyway :)

Again, read the actual motion. These arguments are covered in depth and explained in excruciating detail inside it. To tell the truth, I will be surprised if this motion doesn't go through. Doe #4 has a *LOT* of legal precedent on his side :)

Re:Sounds a little hokey

[PopeRatzo]

I'll sue your pants off!

Does that work? Would it be possible to sue a blouse off?

Just asking theoretically, you understand.

Re:Sounds a little hokey

[slaker]

In theory, you can tell your client to download the .torrent file and join the swarm without allowing it to download any of the associated files. You might do this to harvest addresses from other clients or to otherwise monitor the torrent.

It's pretty suspicious behavior, but merely being in a big blob of chattering IPs doesn't necessarily indicate that yours has specifically done anything criminal.

Re:Sounds a little hokey

[cpu6502]

Well if you're in a Torrent swarm, doesn't that mean you're uploading (no way to turn it off), and isn't that legally defined as copyright infringement? (shrug). It appears to argue that Doe 1 did not upload to Does 2,3,4,5 and therefore did not collude with them.

I still think the best thing to do when you receive a "Pay $5000 or get sued" letter is throw it in the trash. They send-out thousands of those things and the odds they will actually drag you to court are small. It's just a scare tactic and way to generate cash.

Re:Sounds a little hokey

[msauve]

"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?"

Poor analogy. It would only work if the parties were is different swarms. If parties A and B are on the same conference call, along with others, are they interacting?

Re:Sounds a little hokey

[thoughtlover]

But YOU are not interacting with other people, your computer or bit-torrent program is interacting with other computers/bit-torrent programs.

I think this is a little closer to the truth. You can't control who you connect with... Bittorent chooses who you connect with.

My main concern with the 'swarm' argument is this: If I configure my client to only send and receive encrypted data, there stands a chance I may not get one byte of data unless some of the people in the swarm have their client configured similarly.

Therefore, I think the real question is, "If someone connects to a swarm and only gets an incomplete file (or not even a byte of it), are they liable in any way?

Re:Sounds a little hokey

[msauve]

As if the computer did this on it's own. Might as well argue that you didn't hire that hit man, he just acted based on hearing the mechanical vibrations caused by electrons going over the phone line.

Re:Sounds a little hokey

[Fjandr]

Not at all. It's more like a party line.

I use the common line to contact person B. Later, person C uses that same party line to contact person D and E. Person E used that party line to contact person F a week before my contact with person B.

According to the **AA, all parties interacted together by virtue of access via the party line, despite the massive temporal gaps between those discrete contacts and the fact that, at most, only 3 people were in direct contact with each other, ever.

Re:Sounds a little hokey

[thoughtlover]

In theory, you can tell your client to download the .torrent file and join the swarm without allowing it to download any of the associated files. You might do this to harvest addresses from other clients or to otherwise monitor the torrent.

It's pretty suspicious behavior, but merely being in a big blob of chattering IPs doesn't necessarily indicate that yours has specifically done anything criminal.

If this is the case, I'd have to say this technique of harvesting IP addresses would make the person/company just as liable to infringement as all the other people connected to the swarm. After all, how did the **AA agents get the IP addresses in the first place? I'm assuming they hired a company to harvest addresses to popular torrents so they could get IPs of all the Does, bring them to court and profit... maybe.

Re:Sounds a little hokey

[wisnoskij]

You "hired the hitman", but you did not interact with everyone the hitman interacted with when under your employ (you did not even know they existed or give any more specific orders then to kill some guy).

That is like saying you interacted with the pizza delivery boy who delivered the pizza to your hitman, the night before your hit.

Re:Sounds a little hokey

[Anonymous Coward]

incorrect, there are ways to not upload data
I do it all the time

Re:Sounds a little hokey

[cpu6502]

>>>incorrect, there are ways to not upload data. I do it all the time

Please share.
Wait wrong term.
Please tell us how you do it.

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.

Re:Sounds a little hokey

[Anonymous Coward]

It's not a secure protocol, and there are/were many custom clients with options available to do anything from not uploading anything useful at all, to faking upload/download numbers for sites that thought ratio was such an important thing.

The tracker could always do a little work to find cheaters, but who's going to do that on a public swarm.
If I connect to a tracker and someone makes a list of ip's seen, all they can say is that I connected. Unless I actually downloaded something important from said person, then they can say I downloaded something from them. No one can say I sent any pertinent data to anyone else. I could even be poisoning the swarm rather than no upload at all. A lot of the functionality of torrents is built on trust, and that generally works until someone doesn't want to play by the flimsy rules.

Re:Sounds a little hokey

[Grishnakh]

The problem with this is that the whole system doesn't work unless people are sharing.

What's needed is an option in clients to not upload to other users who have IP addresses in the USA. Even better would be a public list of IP blocks used by the MAFIAA, so those can be blacklisted automatically by the clients.

Re:Sounds a little hokey

[flimflammer]

So your big plan is to have an option where users outside the US can leech from US users, but not share with them? You really think that should be a legitimate option in torrent software?

Re:Sounds a little hokey

[flimflammer]

Also, I forgot to add that there are already blacklists for known RIAA/MPAA IP ranges. Both entities frequently work around it in a game of cat and mouse that neither side will ever win or lose.

Re:Sounds a little hokey

[jd]

Let's say you were in a conference call on VoIP, with your microphone and speaker turned off. You are still in the conference but you receive nothing and transmit nothing.

Or if you send the "join" command to join a multicast group, but never send or receive packets. All you do is join and remain active as a node (thus never pruned).

In the case of BitTorrent, it's a bit harder to argue, but there are still cases. An academic researcher who desires not what is being shared but a knowledge of how many people send vs receive and how numbers vary with time would need to have a probe connected to the swarm but if it transmitted OR received it would alter the system it was observing and that would violate the purpose of any such research. It would have to be a passive observer. This is not something Joe Average could argue, but I'd say that any sociologist "caught" in such a dragnet would be able to cast reasonable doubt.

Re:Sounds a little hokey

[NewYorkCountryLawyer]

Nope. A swarm is nothing like a conference call, because you aren't interacting with every member of the swarm, but just a few members at a time - restricted by how many connections your bandwidth can actually handle at a given time. Regardless, the reported "offenses" are so separate in *TIME* that there is no guarantee that the Doe's in this case were actually online and part of the swarm at the same time as each other. Even if they were the chance that they actually shared parts of the movie between each other is so low as to be nil. You really should read the documents linked to - they might be in legalese, but it is close enough to english for just about anyone to follow. And it does explain things simply enough for anyone to be able to understand them. Yes, there is an explanation for how a BitTorrent swarm works in the actual motion and it was written in such a way as to be understandable by any of the legal professionals - including the judge in the case. And regardless of whether or not "participating in the same swarm" is a legal theory that holds water and fulfills the requirements of the rules, well... There is the fact that these "joinders" benefit only the plaintiffs in the case and create hardships for the joined defendents that break the required "fairness" of the legal system. (Yes, the legal system is supposed to be fair - surprising, no ?) So the joinder should be undone anyway :) Again, read the actual motion. These arguments are covered in depth and explained in excruciating detail inside it. To tell the truth, I will be surprised if this motion doesn't go through. Doe #4 has a *LOT* of legal precedent on his side :)

Why, thank you.

Re:Sounds a little hokey

[Anonymous Coward]

Who hires a hitman over the phone? That's just stupid.

Re:Sounds a little hokey

[slaker]

That is in fact exactly how the *AA harvests IPs from torrents, but torrents in and of themselves are not illegal, only the infringing behavior of sending copyrighted material to another person is illegal.

Re:Sounds a little hokey

[Grishnakh]

People outside the US wouldn't need to block US users; only other US users would need to use this option. It's not like the MAFIAA is going to go over to Latvia or wherever and start suing people there.

However, there probably are similar groups in other countries that might sue people there. So instead of just blocking US users, the real objective is to block uploading to other users in your own country, whatever it may be (Canada, UK, etc.), if your country's MAFIAA-equivalent is in the business of suing BitTorrent users.

Re:Sounds a little hokey

[Jah-Wren Ryel]

As if the computer did this on it's own. Might as well argue that you didn't hire that hit man, he just acted based on hearing the mechanical vibrations caused by electrons going over the phone line.

Actually, I think the hit man analogy is the best one so far.

This swarm thing is like you hired a hitman, and someone else hired a hitman, and both of your hitmen decided to team-up without running it by either of you.

Re:Sounds a little hokey

[rrohbeck]

It's like saying if you say a number, say 42, and I say the same number, 42, a couple hours later, we must have interacted somehow. How else could we come up with the same number?
While in fact all there is that we have some bit of common knowledge, like having read Douglas Adams. Or having received a hash.

Re:Sounds a little hokey

[Darinbob]

The program does this for you. You do not choose who else the data is being sent to. The legal reasonings here are whether or not these people knew each other or aided each other.

Re:Sounds a little hokey

[camperdave]

That's guilt by association, which is unconstitutional, is it not? After all, just because you and I are downloading the same torrent content from the same torrent server from the same torrent indexer, doesn't mean that that action is illegal for both of us.

Re:Sounds a little hokey

[Kjella]

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.

If clients kept logs you could probably find substantial evidence on other peers they've downloaded from/uploaded to. Their BitTorrent clients have communicated, or if not directly then the swarm has. Persons A and B may very well be convicted of a conspiracy even if they've never talked to each other but to a mastermind C. Since you need uploaders to have downloaders you can't say you've committed any copyright violation alone. I would focus on the lack of coordination, imagine a secure door. The first seed opens the door, the other peers take advantage of it by holding it open (seeding) but they're not really cooperating with anyone. Each person just does as he wants and when the last person holding the door opens (the last seed disappears) the door closes.

Re:Sounds a little hokey

[jones_supa]

Therefore, I think the real question is, "If someone connects to a swarm and only gets an incomplete file (or not even a byte of it), are they liable in any way?

Well, in that case you would still be trying to participate in illegal file sharing. Kind of throwing a rock in a window of a jewelery store to get some loot, but the rock not even breaking the glass.

Re:Sounds a little hokey

[jamstar7]

John Doe #4 may have some serious legal chops in his skillset, but keep in mind that a lawyer's primary function is to figure ways to bypass the law. And the legal teams fielded by the *AAs tend to be high priced, high powered, and goddamned good at what they do, or they wouldn't bother doing it.

Re:Sounds a little hokey

[stephanruby]

That's not the same thing as a swarm though. You make it sound like people were prosecuted because their neighbours used BT, that's on the same cable too.

That is exactly what we're talking about actually.

If you share the same ip address with someone else, only the account holder gets named and sued for having file-shared pornography. And if you poison the data with fake ip addresses like Pirate Bay used to do, or like the University of Portland's study successfully proved could be done, then some random account holder at the end of some randomly selected ip address can be blamed for that as well.

This is what makes the "interaction" claim so dubious in the first place. Not only the people supposedly interacting with each other can't even be sure who they're "interacting" with, but they can't even tell if they were even connected to a real person (and not some fake person's ip address designed to poison the evidentiary information they were trying to collect), and nor would they even care even if they could (after all, with porn they can get a potential financial settlement payment, whether the person making the settlement is guilty, or innocent, so they have no incentive to weed out that kind of data, on the contrary).

Re:Sounds a little hokey

[Belial6]

It's more like you sang "Happy Birthday" to your kid at his party in a Chuck-E-Cheese. One of his guests learns the song during that illegal public performance, and teaches it to his brother who then proceeds to perform an illegal public performance of the same song at his friends Chuck-E-Cheese birthday party.

Re:Sounds a little hokey

[Anonymous Coward]

(in transmission at least)
Limit max upload speed to 0 kb/s
Win.

Re:Sounds a little hokey

[tftp]

Well, in that case you would still be trying to participate in illegal file sharing. Kind of throwing a rock in a window of a jewelery store to get some loot, but the rock not even breaking the glass.

No, that would amount to requesting the data and not getting any.

A better analogy is that during a riot you are standing near the window of a store, in perfect position for a throw, with a rock in your hand. And you don't throw it.

Re:Sounds a little hokey

[Jafafa Hots]

Yes, as a matter of fact, we here at GlobalEverythingCo have determined that your Father's Day phone call was in the same swarm as people who pirated a Justin Beiber video.

You are hereby notified that you have been served.

Re:Sounds a little hokey

[Jafafa Hots]

You'd get shot with a rubber bullet or tazed.

Not that I'm defending that, mind you. It's just that I recognize what the authorities do and what frightened authoritarians cheering them on like to see.

Re:Sounds a little hokey

[arose]

One presumes their contractors don't actually send out any data themselves, they might or might not have a license from the copyright holder to do so, but they can never be sure that there is no content from other copyright holders in any given torrent. That or they just rely on the anonymity provided by the swarm.

Re:Sounds a little hokey

[analyst-cz]

I think it's worth backing up a step and asking where the hell any crime is here?

If any at all is involved, it is on the accusing side! As I am now writing to US readers, I will allow myself be a little parodist: DISCLAIMER: By no way I say there is ANY crime in action by what I write next, nor that I NAME the US crimes properly...

If I could thing about some crimes, I would see these options:
1) Misuse of trade benefits and monopoly. Reason: the prices of products guarded by state monopoly (copyright acts) are way far from what the market price would be, even at least a bit above what would be general morale dictate.

2) Corrupting the morals of youth (as the accomplice): By blocking the access of the youth (especially from the socially weak groups) to the cultural works increases their allegiance to the less moral activities (e.g. the drugs).

3) Extortion: At least in European region it is defined as "use of force or threat of force to enforce an act, OR REFRAIN FROM ACTING in order to obtain the (e.g. financial) benefits".

So what we all should really strong address is not to discuss who to convict and who not yet, but how to make our representatives to repeal the corresponding laws (or to change not cooperating representatives until the lucid ones takes place).

[By continuing reading I hereby explicitly agree to hear some boasting] I can be this strong, as ACTA went (by real citizens demonstrations after it get secretly signed by some EU members) really dead in the EU now (during the ratification process). What about SOPA/PIPA and any other laws criminalizing sharing (torrents being just one form of)?

Re:Sounds a little hokey

[Anonymous Coward]

Blocking the known IP ranges of the MAFIAA equivalents round the planet doesn't/wont work, they're using machines connected to various ISPs, either on business or domestic ADSL/Cable, with the operators/whatever of said systems being on-the-books copyright infringement investigative officers (or some other similar pseudo-official sounding term for the courts).

Its fun when the IP number of a machine slurping data off your system at a very high rate of knots turns out to be an unassigned one in a range used by your ISP's NOC. (And, I do hope they enjoy the trojan that particular file contained - I'm researching the (in)effectiveness of various AV packages, free and paid for, in how they deal with infected content served up by p2p systems - I participate in 'swarms' with likely looking suspect files and the test the ability of the various software packages to block/detect them. the results, so far, ain't pretty...)

Re:Sounds a little hokey

[Tom]

A bank robbery seems the wrong metaphor here.

How about a demonstration gone violent? Both parties were at the demonstration, but it is unclear if they ever talked to each other. You can't even prove if they've seen each other. But it was the same event and they did the same things. And they might have (unknowingly) supported each other, e.g. one threw a stone which drove police back which the user used to do something else.

IANAL, but this is the real-world example that comes closest IMHO. If you'd join in these circumstances, you should join BT users. If you wouldn't, then you shouldn't.

Re:Sounds a little hokey

[nospam007]

"What's needed is an option in clients to not upload to other users who have IP addresses in the USA. Even better would be a public list of IP blocks used by the MAFIAA, so those can be blacklisted automatically by the clients."

There is such a thing called PeerBlock who does exactly that. It allows also custom lists.
I use those to block all connections from/to my own country, so that local law enforcement/MAFIAA equivalent can't get anything usable in court.

Re:Sounds a little hokey

[Tubal-Cain]

Let's say you were in a conference call on VoIP, with your microphone and speaker turned off. You are still in the conference but you receive nothing and transmit nothing.

Or if you send the "join" command to join a multicast group, but never send or receive packets. All you do is join and remain active as a node (thus never pruned).

In the case of BitTorrent, it's a bit harder to argue, but there are still cases.

Going back to the drugs analogy:
If there is guy is standing on a street corner announcing he has drugs for sale and waving plastic baggies of product, would "nobody bought from me" be a valid defense to drug dealing charges?

Re:Sounds a little hokey

[James McGuigan]

That's why they have a charge "Possession with intent to supply" and "Offering to supply"... it applies even when the substance isn't actually what it is claimed to be... also the government have conveniently reversed the burden of proof in such cases.

Re:Sounds a little hokey

[Kjella]

Whether you've properly identified each peer in the swarm is completely irrelevant to the question of whether the peers were interacting or not. That's a valid point in court sure, but the question here was what the relationship between two peers in the swarm is, not two people sharing an Internet connection. I think the argument for that is pretty weak, imagine a drug hotspot - a known meeting point (like a tracker) where lots of people are buying and selling drugs (up/downloading), I don't think you can just round up everyone that's traded drugs in that area for the last year and say they've conspired to go there for drug trade. The sellers come because there's buyers, the buyers come because there's sellers but they haven't planned it together with anyone else.

Re:Sounds a little hokey

[MightyYar]

The difference is that while the technology is interacting with other computers, you may or may not even be aware that this is taking place. To the user, a torrent can look like a fancy download.

When you view CNN video, you are actually part of a torrent-like network - downloading bits of the video from other viewers like yourself. I'd wager most people don't know this. Are they "interacting" with other CNN viewers?

Similarly, when my computer sits on a network with other computers, by definition it is "interacting" with the other computers... but am I?

Re:Sounds a little hokey

[ILongForDarkness]

We got a MIAA notice when I was a network admin in Germany. Someone on our network was seeding a camera rip of an in theater movie. We threw out the email but my boss also started checking for high traffic hosts and blocking ports that aren't standard HTTP chatter. At some level it doesn't matter if the law doesn't apply to you the time it takes for you to say "hey dumbass we still are not in the US" isn't worth it to IT at ISPs/companies. So the laws get defacto enforced. Not to mention international agreements/bodies (WTO?) have a lot of pressure from the US to protect IP since that is pretty much the only thing made in the USA anymore. "We'll lower our tariff on your wheat if you work harder catching internet pirates" kind of things.

Re:Sounds a little hokey

[ILongForDarkness]

In the bathroom by choking on the toenail of a tranny hooker. You might as well add some joy to people's life with your death because you did nothing useful in life.

Re:Sounds a little hokey

[Grishnakh]

That's a little different. The UK and the US have a "special relationship": UK is the US's bitch, so if you're in the UK, you need to follow US law as it applies to you there. The student might as well have been in the US. It's not quite the same as being in the US of course (after all, they haven't extradited Assange from there yet, but maybe they didn't want to try because of the publicity), but it's pretty close.

But that's a unique situation; with any other country, you should be safe. Just look at the Kim Dotcom case; the US prosecutors got totally slapped down on that one; NZ didn't go fully along with them. So, as I said, if you're in a country like Latvia, you obviously have nothing to worry about from the US MAFIAA.

Re:Sounds a little hokey

[phoenix_rizzen]

Ah, but you are uploading "chunks", which tend to be either 128 KB or 1 MB in size. Compared to the average size of a file (say 800 MB), that's very small, and could be considered "fair use". After all, is sharing under 1% if the work really considered infringement?

Oh, and it is possible to disable uploads. You can't totally disable people connecting to you, but you can block the uploads.

Now, if they can show that you shared 100% of the file with a single person, that's infringement for sure. But is sharing sub-1% chunks with a thousand people infringement?

Re:Sounds a little hokey

[jd]

That's why I picked examples were it would (in theory) be possible to prove a lack of intent. If it is possible to be a part of a group with provable lack of intent of collaborating/conspiring with that group, then being part of the group is at best very circumstantial evidence (it raises the probability but proves nothing) and in order for justice to both be done and be seen to be done, such an individual must have the opportunity to present that evidence fairly and without prejudice.

I do not know if the person referenced in the original article can offer such proof, but if joining the swarm can be achieved by opening a socket, any fool could write an applet that takes the necessary metadata, opens such a socket, waits until the other side closes, then repeats forever. Not a solitary network read or write to the swarm would be possible because no such code exists in this theoretical applet. Such an applet could be useful for something, I suppose.

Well, to critics of the **AA, or investigative journalists of **AA tactics, the obvious use would be to have hard, concrete proof you had zero possession, no intent to supply, made no offer to supply, made no offer to receive, had no intent to receive and took no action to receive. It would allow the critics to meet the burden of proof (and thus discredit any actual overzealous tactics) and allow journalists to conclusively establish whether **AA tactics were indeed as excessive as the tech community regularly claims.

Re:Sounds a little hokey

[Golddess]

My house has a septic tank, you insensitive clod!

But you did make me lol.

Not gonna fly

[Anonymous Coward]

If you're connecting to a torrent, it's pretty damn obvious you're expecting to swap chunks of the target file with peers who also want that exact same file; it's how the protocol works for pity's sake. Unless the plaintiff's techs failed to keep records demonstrating that all named Does in the complaint were part of the same torrent, I expect #4 here to get bitchslapped by the court.

Re:Not gonna fly

[j00r0m4nc3r]

If you're connecting to a torrent, it's pretty damn obvious you're expecting to swap chunks of the target file with peers who also want that exact same file

Except when you connect to a swarm just to see who is in the swarm, like the media companies do. Who's to say that I didn't do the same thing?

Re:Not gonna fly

[fish waffle]

From TFA, being in the same swarm does not mean any given pair (let alone 5-tuple) of participants actually exchanged data. In fact:

Here, the activity alleged in the complaint not only did not take place simultaneously with each other, but took place at five discrete times involving a single defendant over an 88 day period extending almost three months. The moving defendant (Doe 4) allegedly accessed the swarm at issue on February 3, 2012 at 2:48 a.m. The closest preceding “hit”, that of Doe 5, allegedly occurred 50 days earlier, on December 16, 2011. The closest succeeding “hit”, that of Doe 2, allegedly occurred 15 days later, on February 18, 2012. Such temporal gaps compel a finding that the five Does did not act in concert with each other

That is not acting "in concert".

Re:Not gonna fly

[Anubis IV]

You're overlooking the fundamental fact that to interact with someone, you need to actually engage in an action with them at some point. Just because you're in a swarm does not mean that you interacted with every single person who ever joined that swarm over the entire life of the swarm, yet that's the sort of logic being applied by the plaintiff's lawyers in this case. They're alleging that Doe #4 interacted with the other Does, despite the fact that there were weeks or months separating his presence in the swarm from theirs. In fact, their own records are damning them in this matter.

Re:Not gonna fly

[DragonTHC]

but, don't you need to have the file in order to connect to the swarm?

isn't the swarm protected by an encrypted hash tag?

doesn't connecting via that encrypted hash tag grant permission to the downloaders by way of the file being present on the swarm shared by those authorized to do so?

Re:Not gonna fly

[DragonTHC]

it's like being in an irc channel when someone makes specific threats about something.

Are you responsible for those threats? Did you interact with that person simply by being there in the channel?

Re:Not gonna fly

[dshadowwolf]

Simply connecting to the same swarm does not mean you are acting in concert with any given other member of the swarm. In fact, you can only interact with a relatively small portion of a large swarm at any given time.

In this case, however, there is no proof that any of the Does were even *ONLINE* and in the swarm at the same time, regardless. Due to large amounts of legal precedent from other cases (there are several pages of precedent cases quoted in the motion) it is clear that for you to be considered "acting in concert" with another member of the swarm you have to have actually exchanged parts of the file(s) in question with them. In this case there is zero proof that the Does "acted in concert" as the law requires.

And anyway, the burden on the defense that any of these "joined" 'John Doe' copyright cases places on the defendants - in effect causing there to be a separate "mini-trial" within the overall trial for each separate defendant... To put it simply, there is no guarantee any of the Doe's in any of the cases will be using the same defense. This will place an (and this is a legal term) "unfair burden" on the defense if a given case remains joined.

But thats besides the point. The "joined Doe Case" is used for an ex parte expedited discovery period so that the plaintiff can then attempt to gain an out of court settlement from the defendents. They then dismiss the "Joined" case and file separate actions against each of those defendants that refuse the settlement offer. And since it is not a "sure thing" they don't want to do that - because the only identity you can get by serving a subpoena on an ISP is that of the account holder - who cannot be proven to have been the actual "criminal" in the case. In fact, it could be a "Significant Other", child, relative, friend or even neighbor of the account holder. Hell, in the case that the account holder has either an unsecured network or one secured with an easily broken security system (such as WEP) the actual "criminal" in the case could have been a complete stranger sitting outside the account holders house in the dead of night.

Because of the numerous possible defenses that can be argued by each individual defendant, separate cases should - technically *MUST* - be filed instead of a joined case like the one in question. These points are actually made in the motion and they make so much sense that I can see the case severed and the subpoena's on Does 2-5 quashed. (with any information gained via those now quashed subpoenas destroyed and made illegal to be acted upon)

In case you have not read the motion, please do it before posting. Its shameful to not have all the facts available when you attempt to argue something.

Re:Not gonna fly

[meerling]

"but, don't you need to have the file in order to connect to the swarm?"
No.
In most cases of file sharing, the very reason to join the activity is to gain the file you don't have, which clearly indicates you do NOT need to have the file in order to connect to the swarm. (Honestly, do you keep looking for your keys after you find them?)

Re:Not gonna fly

[vux984]

Are you responsible for those threats?

No, because you didn't make any threats.

But all participants in the swarm are being accused of infringing copyright.

However although that part of your analogy fails, it does suggest another point.

Suppose you are being accused of actually making threats into that IRC channel... but 5 weeks before someone else did.

Can you two be tried jointly for the same crime? We're you "interacting" ? That's pretty much what happened here.

Multiple particpants of a swarm are being accused of infringing the same file, which is fine. But for them to be charged as a group they must be 'interacting'... according to the records they were often weeks apart on the swarm... they were not acting in concert, they were not interacting. They were just using the same swarm to infringe copyright... just as you and that other guy used the same irc channel to make threats. You should both be charged... but charged separately.

Re:Not gonna fly

[tobiah]

What if the file you end up downloading isn't the one you expected? Who's to say your IP address and presumably you, intended to download a file which exists under copyright? How do you know it is under copyright?

Re:Not gonna fly

[tftp]

Who's to say your IP address and presumably you, intended to download a file which exists under copyright? How do you know it is under copyright?

Imagine that someone takes a gun, points it at someone else, pulls the bang switch ... and nothing happens. The gun was not loaded. Can the unsuccessful shooter walk free?

IANAL, but as I seem to recall an intention to commit a crime is a crime in itself. That shooter will not be tried for murder, but he can be tried for attempted murder.

In this case if you see a torrent of a $copyrighted_movie, download it, and connect to the swarm, any reasonable juror will conclude that you intended to receive or transmit that movie. You'd need to present some extraordinary proof that you were motivated by something else.

Re:Not gonna fly

[Anonymous Coward]

In case you have not read the motion, please do it before posting. Its shameful to not have all the facts available when you attempt to argue something.

Heh. No it isn't. I don't feel any shame.

Arguing about stuff I don't understand is more fun than arguing about stuff I do. Stuff I do know is complicated and requires lots of thought; stuff I don't know only requires "common sense" and hand waving.

On interaction in communication media

[Looce]

Your example assumes you called a certain known endpoint (a person, or an automated telephone answering system) and interacted directly with it.

BitTorrent downloads from, and uploads to, unknown endpoints that happen to have or want the file, respectively.

On the one hand, you authorise your BitTorrent client to communicate with these hosts on your behalf, and your goal is the same (to get and give the file); this may constitute a form of interaction.

On the other hand, you have no control over which hosts your BitTorrent client contacts. These people may be people you know or strangers; people in the same or another jurisdiction. The link may be difficult to establish.

Don't need any of that....

[macraig]

Arguing the validity of allegations of interaction and conspiracy and the subsequent joinder hardly seems necessary when the entire point of the whole process is to avoid legal proceedings entirely via extortion. The lawyers initiating these actions only need the courts to compel the discovery that allows the extortion to continue... since money can't be extorted from an unknown person. Why not focus on the extortion and illegal motives and ignore everything else?

I was wondering the same thing...

[sirwired]

I could totally see the law firm saying "Okay. We give up. We'll file suits against the 5 Does separately." I'm sure that well over 5 Does received notice of intent to sue, and were extorted for settlements.

Of course, the law firm doesn't actually WANT to go through with a trial or anything (or even file suit, really), but if they don't file suit, even half-awake judges are starting to realize that these plaintiffs have no real desire to do anything but extort IP address owners for money with relatively little work and are denying the John Doe subpoenas necessary to obtain victim information.

Re:Make them prove the joinder

[DragonTHC]

since single does never share a complete file with another single doe, it may be necessary.

It becomes difficult to prove infringement of a song when you shared seemingly random data which does not make a song.

Be that as it may...

[Anonymous Coward]

...the law is currently imbalanced and unjust. I personally don't care about which minute details do and do not fall afoul of this farce.

Copyright law does not accomplish its ostensible purpose. Far from ensuring a reward for creation, it ensures that a small group of very rich people stay very rich while the rest of us suffer culturally harmful limitations on artistic expression, appreciation, and participation. Even if the spirit of this law is good, its letter profanes that spirit to the detriment of everyone (except, of course, the established wealthy).

This is a perfect example of a law that should be purged. If the powers that serve us are reluctant to purge it, then they must be forced to do so.

Re:Be that as it may...

[alexo]

Copyright law does not accomplish its ostensible purpose. Far from ensuring a reward for creation, it ensures that a small group of very rich people stay very rich while the rest of us suffer culturally harmful limitations on artistic expression, appreciation, and participation.

So it *does* accomplish its purpose.

This is a perfect example of a law that should be purged.

The people in position to purge such laws are the ones benefiting from them, either directly or indirectly (bribes).

If the powers that serve us are reluctant to purge it, then they must be forced to do so.

By whom?

Why would you ask slashdot?

[Xtifr]

Gee, as soon as I finish getting my legal advice from Slashdot, maybe I'll head over to LawBlog to see if they can help me debug some of my Python code.... :)

Re:Why would you ask slashdot?

[TrekkieGod]

Gee, as soon as I finish getting my legal advice from Slashdot, maybe I'll head over to LawBlog to see if they can help me debug some of my Python code.... :)

The submitter is an actual lawyer (it's not just his username). I'd assume he has the legal aspect of this down. He's probably more interested in a technical discussion of what consists of interactions in BT swarms. Slashdot is actually a good place for that.

Re:Why would you ask slashdot?

[flimflammer]

This isn't ask. The end comment is just an unnecessary addition to stir discussion.

Re:Why would you ask slashdot?

[jd]

That's why I prefer my discussions shaken, not stirred.

Re:Why would you ask slashdot?

[Ecuador]

Are you sure you won't be just going for their "In Russiam Sovieticus" or "But does it run Federal appeals" jokes?

Does banking at the same bank make them guilty?

[Anonymous Coward]

Does banking at the same bank as drug dealers and money launderers make the RIAA and MPAA members guilty?

Does working for documented tax avoiding companies in time of war make all their employees guilty of treason?

Re:Does banking at the same bank make them guilty?

[tobiah]

Only if you share the same bank account.

Does are anonymous to everyone but the lawyers

[Anonymous Coward]

Given this is a common practice of extortion which is clearly set forth in this pleading, it would be reasonable for a smart lawyer to research all such cases, contact does with the help of the court. Make a motion that all such settlements were extortion and abuse of process. Seek treble damages, vexatious litigant status for the plaintiffs and their lawyers, and cut this crap off at their balls.

BTW one can legally download and view any copyrighted work for "educational purposes", yes even porn, without owing the license fee.

18 USC 107

http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=17&sec=107

Section 107. Limitations on exclusive rights: Fair use

            Notwithstanding the provisions of sections 106 and 106A, the fair
        use of a copyrighted work, including such use by reproduction in
        copies or phonorecords or by any other means specified by that
        section, for purposes such as criticism, comment, news reporting,
        teaching (including multiple copies for classroom use),
        scholarship, or research, is not an infringement of copyright. In
        determining whether the use made of a work in any particular case
        is a fair use the factors to be considered shall include -
                (1) the purpose and character of the use, including whether
            such use is of a commercial nature or is for nonprofit
            educational purposes;
                (2) the nature of the copyrighted work;
                (3) the amount and substantiality of the portion used in
            relation to the copyrighted work as a whole; and
                (4) the effect of the use upon the potential market for or
            value of the copyrighted work.
        The fact that a work is unpublished shall not itself bar a finding
        of fair use if such finding is made upon consideration of all the
        above factors.

Re:Does are anonymous to everyone but the lawyers

[JoeInnes]

No, that doesn't mean that at all. That means that if a work is used for nonprofit educational purposes that should be CONSIDERED as a FACTOR in trying to determine whether or not it is an infringement of copyright. If I downloaded (in full) a recent Hollywood release and showed it to a class in art history (because there was a scene shot in an art gallery) without charging for it, I could fairly say that it was a nonprofit educational use of the film. However, it would fall down on the other three factors - the nature of the copyrighted work is not substantially in line with the purpose for which it was used, there was no need to show the whole work, and it is relatively likely that nobody in that class will go out and purchase the film having already seen it. "Educational purposes" is not the catch-all that some people seem to think it is.

Re:Make them prove the joinder

[wierd_w]

Now I wonder something... several somethings actually.

Let's say I troll the internet for all the fair use samples of a given work. Let's say a song. If by collecting these fair use clips, used in literary articles, and sew them all together using audacity so that I know have the complete song, does this implicate the fair use fragment publishers in my alledged "theft" of that work, should I be the subject of prosecution?

Also, if the enjoinder for this case is upheld concerning merely sitting in the swarm as being evidence of being complicit, could this not be utlilized as prima-fascia evidence in other cases, where a music group's sting operations participation in a swarm that also is involved in the transfer of a copyrighted work to which they don't have authoritative copyright powers (say, RIAA sting over a beiber 'song', while the swarm also is involved with a motion picture, say, the last samurai) could the RIAA sting group be enjoined in the movie sharing case later, having gone on record and under oath as having participated in the swarm to gather their evidence?

I ask this because swarms are rarely discrete entities with a 1 file 1 swarm relationship. Many members of the swarm will be members of othery swarms, and since this is guilt by association, where does the court draw the line?

Swarm = Has file?

[k(wi)r(kipedia)]

A question for those more knowlegeable with current BitTorrent technologies. Does being in a swarm mean you have at least one piece of a given file? Can you actually distinguish between seeders and leechers who have yet to download a single piece of the file? How valid is the argument that I smoked but didn't inhale with regard to connecting to BitTorrent swarms?

Re:Swarm = Has file?

[DanielRavenNest]

No. When you download a magnet link from the Pirate Bay, or equivalent, all you have is a hash value, and possibly some tracker names. Somewhere on the network the .torrent file (which has checksums for the blocks and other metadata) is hosted by some other user. The hash value leads you connect with that user, if you have no tracker data, and you get the .torrent file delivered. At that point you don't have any part of the content files yet.

Via one of the peering networks (DHT, Peer Exchange, etc) or a tracker (if this torrent has some) you can now announce your presence, make connections to others in the swarm, and start to ask for blocks. Once you have at least one block, you can start sending them to others. Sending to others is considered the illegal act, since you are making a copy.

The peers you are connected to usually report how much of the files they have. If they have less than 100%, they are called leechers, and if they have 100% they are called seeders, but the protocol works the same for both. You just stop asking for new blocks once you have all of them. When you have part of the full set, you can be sending and getting blocks at the same time. That accounts for how popular swarms can grow quickly. As soon as you have one block, you can start passing it on, and a new swarm only has to send one full set from the original seeder to some number of other people, in pieces. Once a full set is "in the swarm", the original seeder can leave, and then the other people can swap pieces until everyone has the full set. That many-to-many swapping is what lets one seed become 10000 for a popular movie.

(I'm sure others will correct me if any of the above is wrong)

Re:Swarm = Has file?

[jd]

If I am reading you correctly, you become part of the swarm at the instant you make the connection. If you never ask for any blocks, you will be disconnected at timeout but all evidence will show you to be in the swarm until that time, so if any node you connect to has infinite timeout you would remain part of the swarm forever even if you have sent nothing and transmitted nothing, merely connected.

If I'm wrong on that, please say. If I'm right in that interpretation, there would surely need to be evidence of intent as academics particularly (but DDoSers, security auditors, and indeed copyright auditors) would need to connect this way and they would not be guilty by association.

Re:Swarm = Has file?

[k(wi)r(kipedia)]

you become part of the swarm at the instant you make the connection

This is what I'm wondering about. Assuming that you merely stood by and watched, does being in the middle of a group that looted a store make you a participant in the crime or merely an accessory (I know, a bad analogy since copying is not stealing)?

another definition change

[CheshireDragon]

Here they go changing the definition of a word again. Their definition of interacting is now like my son(in 3rd grade) is interacting with some 6th grader. Even though my son and this other kid never saw each other, they are 'interacting' because they go to school in the same building.

Probably a bad analogy, but I gave it a shot.

Re:another definition change

[jd]

Given that we're talking about lawyers changing definitions to suit them, talking about shooting is probably inadvisable.

Re:another definition change

[CheshireDragon]

I don't know how you derived shooting out of an attempt, but I'll go with it. :/

Re:another definition change

[jamstar7]

Probably a bad analogy, but I gave it a shot.

A direct quote. Naughty naughty, here come the Feds...

In case you are concerned about getting caught...

[i_want_you_to_throw_]

Access torrents via a client that supports proxying like Vuze. Then simply invest in a proxy service like BTGuard and have your IP cloaked through a non-US location (How else ya gonna get Game of Thrones?).

You can also go through good ole Usenet which has faster speeds than peer to peer like EasyNews. Happy torrenting!

Another analogy

[jklovanc]

I think I have a very good analogy;
1. There is a parts dealer who buys stolen parts.
2. There is a number of parts thieves who do not know each other but happen to steal from the same parts distributor.
3. At different times the shady dealer buys parts from these thieves.
4. The shady dealer does not identify the other thieves but tells each thief to supply the parts they have.
5. When the shady dealer has enough parts he build a car.

Because the parts were stolen and supplied by thieves who did not know each other and the purchases by the shady dealer took place without the knowledge of the other thieves there must be a case for each thief. The thieves did not interact with each other; the only interaction was between one downloader and one uploader though there were many such interactions.

Another analogy;
1. An item is stolen and repeatedly sold.
2. In any of the sale transaction only the seller and buyer know each other
In this case there is no interaction between the initial thief and the current possessor of the item as they never communicated. Each sale transaction would be a separate case even though it is the same item bough and sold.

Is there no human computer seperation?

[nzac]

My computer is interacting with other computers.

While i am aware my computer is interacting with other computers to download my file*, neither it nor me actually interacts directly with another human user.
My only interaction is with my computer to initiate a torrent.

I would have though this interacting claim is severely weakened in the US due to the ruling that the US that computer output is not included as free speech, the output of a protocol or algorithm is separated from the user.

*You would have some difficulty proving this for the general public.

Re:Is there no human computer seperation?

[jklovanc]

If the fact that a computer sent and received the information negates possibility of interaction then it would be easy to get around a conspiracy charge simply by using a computerized answering machine.
1. Each conspirator calls the machine and reads any messages on the machine.but does not delete them.
2. They then, if nesessisary, leave a message on the machine.
Each conspirator only "interacts" with the machine but there still is a conspiracy going on because everyone gets all the messages.

Re:Is there no human computer seperation?

[nzac]

No, you misunderstand (probably my fault).
There is user to user interaction on the service conveying human content from one user to the intended recipient, in your example.

Bit-torrent is only computers interacting based on a protocol, i do not intend to interact with another human i just want the file and my computer on my behalf interacts with another on the swarm. Me with my computer on the being on the same swarm as another swarm as another computer does not involve me having any direct iteration with the user (if there even is one) and indirectly negligible and no provable indirect interaction with the user.

I intend to interact with your computer not you.

Re:Is there no human computer seperation?

[jklovanc]

It seems that your premise is that the presence of two computers interacting with each other negates any interaction between the people who enabled the computers. I disagree with that.
Try a slightly different scenario;
1. I post to a mailing list of conspirators;
2. The mailing list then forwards my posts to all others.
Does the fact that I have not directly emailed the other conspirators negate conspiracy. I know the email will be read by someone and I know I will receive email as I am on the list. There is no direct interaction between my computer and the other conspirators' computers but there is still interaction between the conspirators.

By putting up a Torrent one is intending to give access to other torrent users. By using a torrent reader one is intending to read segments from someone else's computer. The issue with Bit Torrent is as follows;
1.John Doe A, through his computer, starts a torrent download
2. John Doe A, through his computer, downloads segments from John Doe B.
3. At this point there could be a case involving John Doe A and John Doe B.
4. John Doe A , through his computer, downloads segments from John Doe C.
3. At this point there could be a case involving John Doe A and John Doe C.
The bone of contention is whether or not these two cases can be joined, Separate cases require more paperwork, filling fees and separate trials. Having a separate trial for each source is not economically feasible for the copyright holder so the want cases joined. The fact that John Doe B does not know the actions of or even the existence of John Doe C makes joining those two cases invalid. The fact that the computers actually transferred the information is irrelevant; the true test is did everyone interact. When BitTorrents are used the sources do not interact with each other and need to be in separate cases.

Re:Is there no human computer seperation?

[nzac]

2. John Doe A, through his computer, downloads segments from John Doe B.

That is what i'm discussing. I believe it should read:
John Doe A's computer downloads segments from John Doe B's computer.
John Doe A did not choose to download from John Doe B this was made as the result of the interaction's of computers. This is a computer generated resault and like Google's search results are not human generated.

Having a separate trial for each source is not economically feasible for the copyright holder so the want cases joined.

If there is no interaction this is an arbitrary way of doing it, why not save time and get everyone with the same torrent hash. I think everyone downloading and uploading the torrent is committing separate crimes.

the true test is did everyone interact?

Hypothetically if we were in the same swarm how do I (not something I own) interact with you? Do you know you are interacting with me (not my computer actually me)? The level of interaction between us is so low people could charged for tiny unintentional involvement with other serious crimes.

Re:Is there no human computer seperation?

[jklovanc]

The point that you seem to miss is that the human started the process by downloading a torrent file and loading it into a program that a human knew would go out and get segments from other computers. The computer did not decide to select a file and download it using a specific protocol; that was the choice of a human. Just because a human gives commands to a computer does not mean that the human is free from criminal or civil charges.

If there is no interaction this is an arbitrary way of doing it, why not save time and get everyone with the same torrent hash. I think everyone downloading and uploading the torrent is committing separate crimes.

Some copyright holders have tried to do just that and have been sanctioned for it. We actually agree on this in that every upload download pair should be a separate trial.

Hypothetically if we were in the same swarm how do I (not something I own) interact with you?

When you load a torrent file you are authorizing you computer to look for another computer that has been authorized by another human to make the parts of the file the other computer has available for download. By authorizing the torrent program to seed a file a human is authorizing other computers who are authorized by a human to download parts of that file. The interaction comes in the human authorizing the action. That being said, there is no interaction between computers, and their authorizing humans, that do not transmit data between them. In my example there is not data transfer between John Doe B and John Doe C therefore the cases can not be joined.
To put it succinctly as possible: A human authorizes the upload and a human authorizes the download so when a download takes place both humans are culpable.

Do you know you are interacting with me (not my computer actually me)?

You know there is someone who has authorized the action the computer is taking. To me it is like sending an email to a technical support address. You know that someone will respond but you do not know exactly who will.

The level of interaction between us is so low people could charged for tiny unintentional involvement with other serious crimes.

When one load a torrent file or seeds a data file there is definite intent to transfer pieces of the file between people. Whether the transfer takes place hand to hand or through a program the same intent is there.

Re:Is there no human computer seperation?

[nzac]

The point that you seem to miss is that the human started the process by downloading a torrent file and loading it into a program that a human knew would go out and get segments from other computers. The computer did not decide to select a file and download it using a specific protocol; that was the choice of a human. Just because a human gives commands to a computer does not mean that the human is free from criminal or civil charges.

Of course its a crime, but its not not a given that the user know how bit torrent work or that they are aware of how other are involved. The minimum is they started a torrent on an installed torrent client possibly by just clicking once on a link on the internet and don't know how to stop it. The question is should rights holders be able to send notices to a person who possibly authorized the transfer for little cost and properly and fairly interpreting the law is it lawful for them to do this?

To put it succinctly as possible: A human authorizes the upload and a human authorizes the download so when a download takes place both humans are culpable.

But do I interact with you? You appear to avoid answering the question. Yes i would have authorized my computer to seek other other computers to illegally share. It's not implicit that i intend to effect any other user or that it does. There are many cases that people would be unaffected by me torrenting. It is defiantly not a given that the owner of the computer, who gets sued, has authorized or been interacted with.

You know there is someone who has authorized the action the computer is taking.

I guess, but you know know who or how directly or intentionally they authorized it. I guess you can expect to be highly likely that you will be downloading or uploading form or to a computer that has be directly authorized. My intent is primarily to just get the file from whatever source i get it from and if i support the organization to allow my computer to carry on providing that resource to others. I don't intend to interact with the users who authorized it. Though not the issue you can't even get the infringing computer from an IP much less the user who authorized the infringement.

Re:Is there no human computer seperation?

[jklovanc]

Of course its a crime, but its not not a given that the user know how bit torrent work or that they are aware of how other are involved. The minimum is they started a torrent on an installed torrent client possibly by just clicking once on a link on the internet and don't know how to stop it. The question is should rights holders be able to send notices to a person who possibly authorized the transfer for little cost and properly and fairly interpreting the law is it lawful for them to do this?

Here are the issues with these statements;
1. Ignorance of how Bit Torrents is no protection under the law. The person downloading the file knows they are downloading copyright material.
2. It is up to a court of law to decide if the download was deliberate or accidental and the determination can only be made once a suit is filed.
3. There is a $350 filing fee + lawyer's fees for filing a suit. The issue you seem to miss is that the copyright holder attempted to file one suit which encompasses a number of John Does instead of filling a suit for each John Doe That is called "joining" suits. So instead of filing a hundred separate suits the rights holder wants to file one suit. John Doe #4 is seeking to sever his suit so the rights holder must pay another filing fee and attend another trial.

But do I interact with you? You appear to avoid answering the question.

To use my example John Doe A interacts with John Doe B and John Doe C but John Doe B does not interact with John Doe C and therefor John Doe B can not be in the same suit as John Doe C. The questions are as follows;
1. What suit can John Doe A be named in. Answer; Because John Doe A indirectly interacted with both John Doe B and John Doe C he can be named in both suits..
2. What suit can John Doe B be named in. Answer; Because John Doe B indirectly interacted with only John Doe A he can only be in a suit with John Doe A.
3. What suit can John Doe C be named in. Answer; Because John Doe C indirectly interacted with only John Doe A he can only be in a suit with John Doe A.
This requires filing two suits which doubles the rights holders legal costs and that is the right thing to do.

It's not implicit that i intend to effect any other user or that it does.

I think you mean explicit and not implicit. When one uses a torrent where does one think the data comes from? Everyone knows the data comes from someone's computer.

It is defiantly not a given that the owner of the computer, who gets sued, has authorized or been interacted with.

That is why there are courts to find the facts of the case. A plaintiff files a case and then has to prove it. The allegations do not have to be "a given" before a suit is filled.

So your intent is to break the law by uploading and downloading copyright material. The other person in the transfer has the same intent. Since you are both in the same transfer transaction you both get named in the same suit. What can not be done is people in different transfer transactions, even though they relate to the same file, being named in the same suit. Even if you did not intend to interact with a specific user you authorized you computer to interact on your behalf with any computer that has what you want and/or any computer that wants what you have.The other user has made the same authorization to his computer to interact on his behalf.

Though not the issue you can't even get the infringing computer from an IP much less the user who authorized the infringement.

Not necessarily true. If the IP address is associated with a modem that has no wireless access and that modem is connected to one computer that does not have a wireless card that it is beyond a reasonable doubt that the computer is the only one accessing the internet through that IP address. If the computer is in an area that is only accessed by one person then it is beyond a reasonable doubt that the person is the only one who controls the computer. This would be a special case but it is possible. If one adds a router, especially a wireless router, to the picture then there is no way to prove what computer used the torrent system.

Re:Is there no human computer seperation?

[nzac]

3. There is a $350 filing fee + lawyer's fees for filing a suit. The issue you seem to miss is that the copyright holder attempted to file one suit which encompasses a number of John Does instead of filling a suit for each John Doe That is called "joining" suits. So instead of filing a hundred separate suits the rights holder wants to file one suit. John Doe #4 is seeking to sever his suit so the rights holder must pay another filing fee and attend another trial.

This is what I am argueing, bit torrent carries not immunity to copyright charge. Did the users interact?

To use my example John Doe A interacts with John Doe B and John Doe C but John Doe B does not interact with John Doe C and therefor John Doe B can not be in the same suit as John Doe C ... that is the right thing to do

If this ends up being determined the correct way to do it by the legal system then fine i don't like it. These people never interacted person to person, which is i would expect is what the law was originally intended to mean. Explain the difference to me on how googles search are not human speech because they are computer output but the only interaction is between computers; it is using a law that did not anticipate today's internet. That final link of A's interaction with B not just B's computer needs to be explicit (you are just assuming it), otherwise interacting with peoples possessions can get a lot of people legally involved.

Everyone knows the data comes from someone's computer.

When i say computer i don't just mean desktops and laptop that the user is sitting in-front of and has authorize that individual torrent. You can automate the downloading of torrent and authorize remotely.

That is why there are courts to find the facts of the case. A plaintiff files a case and then has to prove it. The allegations do not have to be "a given" before a suit is filled.

So the suit is still against John Doe until you establish who actually authorized the download? You don't need to assume the owner of the network is JD to get his details? You just want to be able to contact him to help establish who the John Doe is? There is no evidence that JD interacted with the other torrent peers.

Not necessarily true. If the IP address is associated with a modem that has no wireless access and that modem is connected to one computer that does not have a wireless card that it is beyond a reasonable doubt that the computer is the only one accessing the internet through that IP address. If the computer is in an area that is only accessed by one person then it is beyond a reasonable doubt that the person is the only one who controls the computer. This would be a special case but it is possible. If one adds a router, especially a wireless router, to the picture then there is no way to prove what computer used the torrent system.

There are cases when it all comes out that can be proven, i expect it could be a single figure percentage. Do you choose not to send notices if this is unlikely to be case? Meanwhile for the others that receive notices because they own the network have to spend money and time to find out about their legal situation and find supporting evidence that they did not do it, it is almost impossible to get any concept proof that they did or did not do it. Causing the defendant stress because of a partially automated system. I believe especially when you are taking excessive damages if this goes to court that to keep sanity in the system both plaintiff and defendant need similar legal cost.

Re:In case you are concerned about getting caught.

[TommyTumult]

You can also go through good ole Usenet which has faster speeds than peer to peer like EasyNews. Happy torrenting!

Came here to say this, but then I remembered the first rule of Usenet...

i should conduct an experiment...

[wierd_w]

Fair use allows for small segments of a copyrighted work to be distributed and consumed by the public, as long as the intent of the distribution is associated with an academic or journalistic purpose.

So..

This is the modern internet age.

Let's say that I exhaustively comb the internet for examples of these real fair use samples found in free journals, news reports, and academic publications, until I have collected sufficient numbers of these fragments to reconstruct whole works from, paper-mache style.

Would I be in violation of copyright for distributing a list of discovered segments that could be assembled into whole works?

More interesting, since we are talking digital data...

Let's say I did a file compare analysis against a huge swath of completely unrelated files on the internet, and created a wget script + shell script to pull just a few bytes or kilobytes from Jpegs, wav files, HTML files, .swf files, etc-- from all over the internet, then assembled them with concatenation to produce a de-facto copy of a protected media file. Would that be infringing? I have clear server logs showing that not a single one of the bits transferred belonged to that protected file.

Re:i should conduct an experiment...

[utkonos]

Well, courts would look at the intent. The intent of a clip with regards to fair use is to exist as a clip. If you go around gathering all the parts, your intent is to duplicate the full copyrighted work, and therefor is no longer fair use, even if all the parts taken individually are.

But....

[dutchwhizzman]

But....You wouldn't download a car? Also "shady dealer" is a pleonasm.

Re:But....

[jklovanc]

You wouldn't download a car

But one would download piece of a song. To me, downloading a part of a song is very similar to handing someone a car part. In both cases the part will not function independently and must be joined to other parts.

Also "shady dealer" is a pleonasm.

Considering that

dealer

is anyone who buys or sells without altering an object. It give no reference to whether or not the transaction is legal hence the word "shady". Not all dealers handle stolen property; many do but not all.

Air and viruses

[flyingfsck]

We are all breathing the same air and sharing the same cold viruses, so we are all interacting, including the Judge.

Actually I think the very idea of a swarm ..

[twistofsin]

I think the idea of a swarm means that you will be in harmony with any members you interact with.

Betteridge's Law of Headlines

[jones_supa]

This could be a topic to which the Betteridge's Law of Headlines might not obviously apply?

Re:I interacted with...

[shentino]

And that's protected by double jeopardy.

baloney

[shentino]

Unless you catch a peer red handed uploading infringing material to you, you either need a subpoena or a spyware virus on the peer to prove anything.

And without probable cause, you shouldn't get either one.

Swarm or Torrent?

[Neelix21]

As always, terminology here matters a lot. Do you mean that some John Does have been lumped together on the same torrent download, or did they all download different torrents?
In the first case it is obvious that they interacted, they're cooperatively downloading something. In the latter case, you could argue that they interact somewhat, but on a very minimal level. Torrent files are now usually stored in a distributed hash table, spread over all torrent clients. This peer-to-peer storage system is used to store the torrent file itself, but also the peers that are downloading a particular torrent.
So in a sense, everyone is contributing to the download of everyone else by participating in the DHT.

Minor misevaluation in the filing

[Eivind Eklund]

I think the filing is very well argued and makes a good case (that's a non-lawyer opinion.)

However, there is one minor point where it seems to miss the point: In talking about being in the same swarm at the same time not (always) leading to communication, it assumes the swarm is large. If the swarm is very small, being in it at the same time can force communication - the trivial example being if the only members of the swarm are the investigators and the downloader. In this case, there would seem to be a separate defense, albeit a weird one: The downloader only downloaded from the investigator (and only uploaded to the investigator), and has to be authorized to access and distribute the content in order to do the investigation, so the downloader cannot be in violation.

The answer is no

[nanoflower]

It's entirely possible to join a swarm and never download a single file. I know I've done it before when I couldn't easily find out what files were in a swarm or if they were the same as what I already had. So I would bring up the swarm but choose the option to not download any files before actually starting the swarm. So I would have shown up as a member of the swarm but never downloaded any of the files.

Not just being in the same swarm

[drinkypoo]

Only if you actually transfer data between your clients are you "interacting". I'm not necessarily interacting with someone when we're in the same building.

Re:Make them prove the joinder

[DragonTHC]

I see your argument, but doesn't the RIAA participation in a swarm mean they granted permission to download since they were offering up the file too?