Is Being In the Same BitTorrent "Swarm" Equal To "Interacting"? 166
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?"
Sounds a little hokey (Score:5, Insightful)
Re:Not gonna fly (Score:5, Insightful)
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:Sounds a little hokey (Score:5, Insightful)
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:Not gonna fly (Score:5, Insightful)
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 (Score:4, Insightful)
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:Sounds a little hokey (Score:5, Insightful)
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 (Score:2, Insightful)
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 (Score:5, Insightful)
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.