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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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.

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

[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?)

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.

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.

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.

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.

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: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: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.