US Copyright Group Says BitTorrent's Architecture Explains Why It's Ok To Lump 5,000 Defendants Into One Lawsuit

from the they-could-all-be-sharing! dept

US Copyright Group (really DC-based law firm Dunlap, Grubb & Weaver) is the group that famously has sued thousands of people not to actually take anyone to court, but in an attempt to find out who they are so it can send them "pre-settlement" letters, demanding payment of thousands of dollars to get them to drop a potential lawsuit. Of course, for this "business model" to work, it can't actually get involved in costly lawsuits or even go to the trouble of spending the fees involved in filing lots of separate lawsuits in the location where the defendants actually live. So it lumped them all together into a single lawsuit in DC. Lots of folks quickly pointed out that this seems to violate the law, and the judge in one of the cases has asked USCG to explain why she shouldn't dump all but one of the defendants from the suit.

THREsq is reporting on USCG's response, where it tries to defend lumping all of the defendants into one giant case through the somewhat amusing claim that, due to the way BitTorrent works, all the defendants are linked because (who knows!?!) all of the defendants may have actually shared bits of the file with each other! Seriously.
Under the BitTorrent protocol, the initial file-provider intentionally elects to share or upload a file via a BitTorrent network.... This is called "seeding." ... Other users ("peers") on the network connect to the seeder to download.... As additional peers request the same file, each additional user becomes a part of the network (or "swarm") from where the file can be downloaded, which means that such additional user's computer is connected not only to the seeder/uploader but also to other peer/downloaders.... Unlike the older P2P protocols, each new file downloader is receiving a different piece of the data from each user who has already downloaded that piece of data, all of which pieces together comprise the whole.... This means that every "node" or peer user who has a copy of the infringing copyrighted material on such a network--or even a portion of a copy--can also be a source of download for that infringing file, potentially both copying and distributing the infringing work simultaneously....

This distributed nature leads to a rapid viral spreading of a file through peer users, all of whom are both uploading and downloading portions of the file simultaneously.... As more peers join the swarm, the likelihood of a successful download increases... Because of the nature of the BitTorrent protocols, any peer that has downloaded a file prior to the time a subsequent peer downloads the same file is automatically a possible, and even likely, source of the file for the subsequent peer.... Essentially, because of the nature of the swarm downloads as described above, every infringer is simultaneously stealing copyrighted material through collaboration from many other infringers, through a number of ISPs, in numerous jurisdictions around the country.
Of course, no one charged anyone with theft here, so it's a bit odd to see USCG claim that "stealing" happened. If that were the case, why not go to the police? But, more importantly, USCG is trying to argue that because BitTorrent involves little bits shared via a swarm, that it makes sense to link all the lawsuits since they may have been together in a swarm.

I can't see how that actually makes any sense. Each of the actions were done independently, and there's no evidence presented that these all were actually a part of the same swarm.

On top of that, I do wonder if calling out some of the specifics of how BitTorrent works could actually do harm to any case that actually goes to court (as if that will ever happen). Some have pointed out that with the way BitTorrent is set up, that anyone doing the sharing is contributing such a minimal part to the whole (something USCG seems to be admitting here), that users have a stronger (though, certainly not concrete) fair use claim, in that the amount they share/receive is tiny and not a large portion of the file.

Either way, this response seems pretty weak, and hopefully the judge agrees.

Filed Under: bittorrent, copyright, joinder, linkage, misjoinder
Companies: us copyright group

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  1. identicon
    darryl, 23 Jun 2010 @ 7:15am

    Copyright infringement/violation/theft and legal definitions !!

    "Or is each piece of the file transferred an infringement?"

    No, not even the entire file being downloaded is an infringement, nor is it theft of the file.

    What it is, is the violation of the copyright of the legal, right full owner of the copyright.

    You are not stealing a song, or a file, or data, you are taking away from the right full owner his right to copy his work as he wishes. As defined by copyright law.

    So it is theft, and you do take away from the owner intangable property, and that property is his copyright, not the song or movie or book, its the copyright of that works, the movie, song etc.

    The technical details of bittorrent or FTP or http or whatever has no bearing on the end result, its not the way you steal, its the fact you have, and your intension in doing so.

    That is how the law looks at it, and how society looks at it, and if you read copyright law, you will see its the copyright that is being stolen, not the material.

    Everyone who goes onto bittorrent, has specific INTENT to gain a file or content they desire. The technicalities of file transfers, means that you have to download the complete file, for it to be at all usable. Download part of a program, movie or song will result in a checksum error or a failed attempt to view the movie etc.

    Everyone who gets on bittorrent, who become leaches **and** seeders are all there with the intent to gain the full file, the complete work, and while you gain that, the data that you have allready downloaded, is available for upload. Meaning at 100% download, and or all of the file on your computer will be download by other sharers.

    You cannot claim fair use, even by the weak definition of that term used here.
    You would expect to be able to claim fair use, because you only download a file a bit at a time ?

    What about the 4 point balancing test for fair use?

    Copyright infringement (or copyright violation) is the unauthorized or prohibited use of work covered by copyright.
    In a way that violates one of the copyright owners *EXCLUSIVE RIGHTS*, such as the right to reproduce or perform the copyrighted work, or to make a derivative works.

    What that means is that you dont steal the song or movie, you steal the copyright owners exclusive rights.

    That is the theft, and that is the intangible property you steal off the right full owner of the copyright.

    So we should not hear from people who should know better that "its not theft" as you are not taking away anything.

    You are, your taking away his property, his copyrights.


    Mike said:

    "I can't see how that actually makes any sense. Each of the actions were done independently, and there's no evidence presented that these all were actually a part of the same swarm. "

    Actually, you cannot do these actions independently, you are very dependent on the seeders, or the original seeder. You cannot do anything to get a file independently, unless you produce that file yourself.

    If you are downloading something (again source of the crime is not important), then someone is uploading it, on torrents that is often hundreds, or yes 5000's or more for a popular file.

    There was well over 5000 seeders and leechers for the michiel jackson movie on PTB, it would have been a trivial exercise to log the IP addresses of the partcipants.

    Then if you are honest, and did not download/upload the file, you have nothing to worry about. Your what they call innocent.

    If you did download the file, and lets face it here, you dont go to pirate bay to download a part of a file you dont want right..

    Those 5000 were there for a reason, the same reason everyone else goes there, to download files.

    They had INTENT, and that is all you need.

    I would say it would be more closely aligned to organised crime, rather than individual actions.


    The 'actus reus' of theft is usually defined as an unauthorised taking, keeping or using of another's property (interlectual property in this case), which must be accompanied by a 'mens rea' of dishonesty and/or **INTENT** to permanently deprive the owner or the person with right possessino of that property or its use.
    (ie, permanently deprive the owner of exclusive rights to copy his works).

    "actus reus', appropriation, the assumption of any of the owners rights. (not necessilary ALL the right).

    Copyrights, is "rights".

    "Belonging to another", that property belongs to another if that person has ownership, possession, or a proprietary interest in the property. (as with copyright).

    'Mens Rea'
    "intention to permanently deprive, as treating the property as it belongs to the accused, rather than the owner".

    That means the owner has the *EXCLUSIVE* right to copy his works, you are permanently depriving, the right full owner of the right to exclusively copy his works.

    You are commiting, THEFT, by the very legal definition of the term.
    And yes you are also violating, infringing specific laws,

    So what of the defined defenses do you propose to use to defend against the claims that anyone who downloads a complete file, does not in breach of the law, of copyright, and is by definition theft.

    And Mike if a theft occures, you dont necessarily have to call the police.

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