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?"
Not gonna fly (Score:2, Interesting)
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:Sounds a little hokey (Score:5, Interesting)
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 (Score:4, Interesting)
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 (Score:4, Interesting)
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.
Be that as it may... (Score:2, Interesting)
...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.
Does are anonymous to everyone but the lawyers (Score:3, Interesting)
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.
Re:Sounds a little hokey (Score:4, Interesting)
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 (Score:5, Interesting)
Re:Sounds a little hokey (Score:4, Interesting)
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 (Score:5, Interesting)
Re:Sounds a little hokey (Score:5, Interesting)
"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 (Score:4, Interesting)
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.