Anyway, the figure of $233,000 seems plucked out of the air, as is so often the case in this evidence-free area. Or perhaps it was inspired by the most famous damages imposed for unauthorized sharing of music, those against Jammie Thomas, who was fined $222,000 in her first trial (which then went up to $1,920,000 in the second trial, and to $1,500,000 in the third trial.) The fact that her sorry saga is still dragging on is an indication that even if Sony wins the current action, there are likely to be appeals against such a disproportionate and blatantly punitive figure.

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Because CBSI distributed several torrent software programs and encouraged infringement on torrent networks, CBSI is liable for all infringement on the torrent network.

Plaintiffs have not shown any likelihood that Defendants will be found liable for their continuing activities. There is ample evidence of BitTorrent’s – and other P2P software’s – ability to infringe copyrights and that a large number of individuals use the software to infringe. Defendants are clearly aware of both of these facts. However, inducement of infringement requires more than just knowledge of actual or potential infringement. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. 545 U.S. 913, 937 (2005). While there might be some evidence of past inducement of copyright infringement, there is no evidence of any ongoing distribution of any file sharing software “with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement.”

The Court is well-aware that injunctions are often properly imposed where allegedly wrongful conduct has ceased. However, there must be at least some evidence that future infringement may occur. Here, Plaintiffs’ only solid evidence of possible inducement comes from reviews that were published a decade ago.... The other articles cited by Plaintiffs merely discuss P2P issues, including legitimate distribution through P2P, and the various technological and legal issues that have emerged with the technologies. (See id., Ex. M, O, T, U, V, X.) The Court has no reason to believe that Defendants will purposefully encourage copyright infringement now or in the foreseeable future.

The nature of some of the supposedly problematic articles also demonstrates that an injunction is not in the public interest. Most of the articles cited by Plaintiffs are straightforward, legitimate news articles that do not in any way encourage or induce copyright infringement. This suggests that Plaintiffs’ goal goes far beyond stopping actual infringement by Defendants and extends instead to silencing public discussion of P2P technologies.

And now, a year after the Sundance premiere and six months from the start of the direct-to-fan release powered by Topspin, Film Sales Company and our partners awe.sm and The Uprising Creative,  Stacy has earned more from direct sales than he would have from the combined total of the domestic and foreign sales offers. And, because a Topspin direct release does not require licensing rights, Stacy and Andrew Herwitz from Film Sales Company were then able to do their own Transactional VOD and Third-party license deals. Stacy and his financing partners quickly recouped the budget of the film, and the copyright remains in their hands for the future.

That really is the key. “I self financed, got the investment back, am now in profit and I own the copyright and will continue to earn all other sales for the next ten years,” says Stacy. “And it is all because I was empowered for the very first time to really do it myself from start to finish. Topspin has done for distribution what the Handycam did for shooting or the Avid did for editing. Topspin put it all in my hands and suddenly everything I needed was within my reach: pure and simple filmmakers democracy.”

For instance, BitTorrent conversion is NUTS. Of 210,000 downloads (of this bundle) earlier this week, more than 85,000 clicked through “Support the Author” to the book’s Amazon page. We all had to triple and quadruple check that to believe it.

Even at a 1% conversion after clicking an effective “buy now” link, that translates to 850 books… and BitTorrent is only accelerating. Wow.

To the contrary, and as argued above, the “purpose” of the discovery is entirely proper: to obtain information identifying unknown Doe Defendants infringing Plaintiffs’ copyrights “in order to consider whether to name and serve them as defendants.”

True to form, Defendants have enthusiastically embraced this new engine of piracy, distributing over 65 million copies of bittorrent applications and, again, shamelessly promoting their use for purposes of infringement. Defendants' inducement has sometimes become somewhat more sophisticated and subtle, in that, for example, Defendants now include a mild, disingenuous disclaimer about piracy on some of their web-pages and evidently no longer host certain P2P applications on their servers. Defendants, however, still expressly and explicitly show users how to use bittorrent programs to find copyrighted files to download. At all times, Defendants were aware that the bittorent programs they distributed were used overwhelmingly for infringing copyrighted works – primarily music, software, movies and video games. Although some court cases have found the proprietors of torrent websites liable for secondary copyright infringement,3 no court case has yet directly involved bittorrent applications and technology itself. Like a leopard that cannot change its spots and despite this Court’s clear admonishment that Defendants cannot simultaneously distribute software applications that they have encouraged to be used for purposes of infringement,4 Defendants continue to distribute bittorrent applications under the intentionally lazy and under-reactive guise that they cannot be held liable for this activity until a court order specifically prohibits the use of bittorrent technology to infringe Plaintiffs’ works. Although Plaintiffs believe it probable that courts will soon explicitly find the popular bittorrent applications to be secondarily liable for copyright infringement just as Napster and LimeWire were, it is beyond doubt that Defendants’ distribution of these programs and concurrent intent to induce infringement subjects Defendants to inducement liability, independent of any further inquiry. Bittorrent is a clear and present danger to copyrighted works. From evidence readily available in CNET’s own “news” articles, it is clear that bittorrent applications like uTorrent are growing explosively to fill the infringement vacuum left by Gnutella applications.

Defendants also use the purported “news” arms of their websites to dress up the marketing of bittorrent applications as legitimate news reporting. For example, CNET editor Seth Rosenblatt (the same individual who authored the fivestar review of uTorrent), wrote a May 14, 2012 article published and available on Defendants website titled “Download This Mr. Jones,” ostensibly about how the recording artist the Counting Crows had partnered with the software publisher of uTorrent to release their music for free download via torrent.... In a portion of the article quoting the lead singer of the Counting Crows regarding the 150 million users of uTorrent, Rosenblatt included hyperlinks accompanied by the word “download” to the CNET download pages for uTorrent and BitTorrent.

Plaintiff seeks statutory damages for willful infringement of $1,500,000 for the willful infringements of 10 videos that were downloaded 3,449 times. Exhibit “E”. Defendant caused 3,449 infringements of the Plaintiff’s videos. Plaintiff is seeking the maximum statutory damages of $150,000 per infringement. $150,000 times 3,449 infringements is over $517,000,000. Thus, Plaintiff, Flava Works, Inc.’s request for an award of $1,500,000 is very reasonable.

Fascinating new research entitled "The Unbearable Lightness of Monitoring: Direct Monitoring in BitTorrent" (pdf), from researchers at the University of Birmingham, explores just how public. It seeks to quantify how many peers in a swarm are actually being run by companies monitoring unauthorized downloads, and how long it takes for them to detect such activity:

From our experiments, we derived a number of interesting properties of monitoring, as it is currently performed: e.g., that monitoring is prevalent for popular content (i.e., the most popular torrents on The Pirate Bay) but absent for less popular content, and that peers sharing popular content are likely to be monitored within three hours of joining a swarm.

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As skateboarders, as people that have always lived on the outside, have always had to sneak over fences or through the back door, have always had to create our own terrain, we’ve decided to put that ethic towards how we release “Bones Brigade: An Autobiography.” We turned down all of the conventional offers for distribution when we came out of the festival in favor of doing it ourselves.

The Internet Archive is now offering over 1,000,000 torrents including our live music concerts, the Prelinger movie collection, the librivox audio book collection, feature films, old time radio, lots and lots of books, and all new uploads from our patrons into Community collections (with more to follow).

But a case reported on TorrentFreak suggests that the distinction between the two worlds is starting to blur:

A New York federal court has ordered a rare default judgment in favor of John Wiley & Sons, one of the world’s largest book publishers. Robert Carpenter from Poughkeepsie, New York, has been ordered to pay the publisher $7,000 in damages for sharing a copy of "WordPress All-in-One For Dummies" on BitTorrent. According to Judge William Pauley, the man is guilty of both copyright and trademark infringement.

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Ms. Hansen demanded that Ms. Barker pay money to settle the lawsuit or she would be identified publicly as having downloaded pornography and would be subject to hundreds of thousands of dollars as a judgment if the suit went forward because there were multiple downloads. Numerous individuals on the Internet report receiving a phone call from the same telephone number as that provided by Ms. Hansen to Ms. Barker with a demand that they pay money to settle a lawsuit against them.

Ms. Barker refused to pay any money because she did not know what BitTorrent was and had never downloaded any pornography from the Internet. On information and belief, many other members of the class have paid sums of money in settlement with the pornography purveyors even though they had never downloaded any pornography from the Internet, and certainly had never unlawfully downloaded any pornography from the Internet.

Subsequently, Ms. Hansen and others associated with her called Ms. Barker's place of employment and left messages on the voicemail to which several of Ms. Barker's co-workers also had access and continued to contact Ms. Barker on her personal telephone. Class members have been subjected to the same or similar treatment.

“I think that the increase is a result of all the media attention for the lawsuit and the blockade. Perhaps people who until then had never downloaded thought ‘I hear so much about downloading music and movies, let me try it!’.”

The show went on to press the one-download-one-lost-sale mantra, suggested that a “3 strikes” regime should be considered to deal with infringement, and criticized local ISPs for providing high-speed connections used for pirating.

BTV also claimed to have contacted the operators of Zamunda so that their side of the story could be heard, but a source close to the site told TorrentFreak that after initially making contact and getting Zamunda’s attention (just 3 days before the show was aired), the show failed to respond to further contact from the site.

The end result, critics say, was an ‘investigative’ report biased towards rightsholders at a time when bTV is not only promoting its just-launched Voyo PPV service, but simultaneously running an anti-torrent site campaign of its own.

Torrents have many legitimate uses. BitTorrent is simply a good protocol for sharing large files with large groups—they are perfect for films, video games, music and of course software. Linux distros are a commonly cited example, since they are always available by (perfectly legal) torrent, but this is often brushed off as if it's an excuse and torrents are not really necessary for this. Geek icon Wil Wheaton puts a bullet in this notion with a recent post on his blog, clearly demonstrating why he turned to BitTorrent for a copy of Ubuntu:

One of the things that drives me crazy is the belief in Hollywood that bittorrent exists solely for stealing things. Efforts to explain that this is not necessarily true are often met with hands clamped tightly over ears, accompanied by "I CAN'T HEAR YOU LA LA LA."

As an example of the usefulness of bittorrent for entirely legal purposes, I present the following comparitive images:

In case you can't see, the torrent is going about six times faster than a direct download, needing less than 10 minutes as compared to nearly 45. It's a simple example, but an effective one: P2P sharing is simply better sometimes. Google prides itself of directing people to the best possible information, but when their users start searching for the latest version of Ubuntu or the new Counting Crows album, they won't see autocomplete suggestions for this perfectly legal (and potentially superior) means of obtaining what they want. Seems like that runs directly counter to Google's mission. It may only be a minor annoyance, but it's also pointless, and it will only get worse as more and more people embrace torrents for legitimate distribution.

“We used a number of servers to make a connection to each and every P2P client that distributed this film. Then Pirate Pay sent specific traffic to confuse these clients about the real IP-addresses of other clients and to make them disconnect from each other,” Andrei Klimenko says.

Reading the article it sound like they are spoofing traffic to confuse torrent clients and force disconnects. It's not at all clear if this will work against all versions of the protocol (particularly the udp based version). Leaving aside the technical issues it's also unclear if such action is legal. It sounds like a targeted denial of service attack, a major corporation paying for such an attack leaves itself wide open to civil and criminal legal action particularly if they accidentally target the wrong torrent which given the history is highly likely.

They send us a list of IP addresses and say 'this IP address was involved in a breach on this date'. We look at that say 'well what do you want us to do with this? We can't release the person's details to you on the basis of an allegation and we can't go and kick the customer off on the basis of an allegation from someone else'. So we say 'you are alleging the person has broken the law; we're passing it to the police. Let them deal with it'.

Regardless of the actual quality of the evidence gathering of DtecNet, copyright infringement is not a straight 'yes' or 'no' question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright by use of the BitTorrent system. The respondent had no such guidance before these proceedings came to be heard. The respondent apparently did not properly understand how the evidence of infringements underlying the AFACT Notices was gathered. The respondent was understandably reluctant to allege copyright infringement and terminate based on that allegation. However, the reasonableness of terminating subscribers on the basis of non-payment of fees does not dictate that warning and termination on the basis of AFACT Notices was equally reasonable. Unlike an allegation of copyright infringement, the respondent did not need a third party to provide evidence that its subscribers had not paid their fees before taking action to terminate an account for such reason.

Termination of an iiNet account with a customer who has infringed will assuredly prevent the continuation of a specific act of communicating a film online using a particular .torrent file on a particular computer. Regrettably, however, on receiving a threat of such termination, it is possible for a customer to engage another ISP for access to the internet on that computer or access the internet on another computer using a different ISP. Whilst any new infringement would be just as serious as the specific primary infringements about which the appellants complain, this circumstance shows the limitations on iiNet's power to command a response from its customers, or to prevent continuing infringements by them.

Updating the investigative exercise in the AFACT notices would require iiNet to understand and apply DtecNet's methodology – which, among other things, involved a permission to DtecNet from AFACT to use the BitTorrent system to download the appellants' films. Before the filing of experts' reports in the proceedings, the information in the AFACT notices did not approximate the evidence which would be expected to be filed in civil proceedings in which interlocutory relief was sought by a copyright owner in respect of an allegation of copyright infringement. Also, any wrongful termination of a customer's account could expose iiNet to risk of liability. These considerations highlight the danger to an ISP, which is neither a copyright owner nor a licensee, which terminates (or threatens to terminate) a customer's internet service in the absence of any industry protocol binding on all ISPs, or any, even interim, curial assessment of relevant matters.

iiNet's inactivity after receipt of the AFACT notices was described by the appellants as demonstrating a sufficient degree of indifference to their rights to give rise to authorisation. However, the evidence showed that the inactivity was not the indifference of a company unconcerned with infringements of the appellants' rights. Rather, the true inference to be drawn is that iiNet was unwilling to act because of its assessment of the risks of taking steps based only on the information in the AFACT notices. Moreover, iiNet's customers could not possibly infer from iiNet's inactivity (if they knew about it), and the subsequent media releases (if they saw them), that iiNet was in a position to grant those customers rights to make the appellants' films available online.

The Australian Federation Against Copyright Theft (AFACT) is ramping up the pressure on the government to act. It said today's judgment exposed the failure of copyright law to keep pace with the online environment and the need for the government to act.

"It would seem apparent that the current Australian Copyright Act isn't capable of protecting content once it hits the internet and peer-to-peer networks...," AFACT managing director Neil Gane said.