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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?"
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?
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?
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".
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.
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.
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.... :)
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.
"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?)
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)