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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?"
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Is Being In the Same BitTorrent "Swarm" Equal To "Interacting"?

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  • Re:Not gonna fly (Score:5, Informative)

    by fish waffle ( 179067 ) on Friday June 29, 2012 @08:22PM (#40500967)
    From TFA, being in the same swarm does not mean any given pair (let alone 5-tuple) of participants actually exchanged data. In fact:

    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".

  • by dshadowwolf ( 1132457 ) <dshadowwolf@noSPAm.gmail.com> on Friday June 29, 2012 @08:56PM (#40501099)

    Nope. A swarm is nothing like a conference call, because you aren't interacting with every member of the swarm, but just a few members at a time - restricted by how many connections your bandwidth can actually handle at a given time. Regardless, the reported "offenses" are so separate in *TIME* that there is no guarantee that the Doe's in this case were actually online and part of the swarm at the same time as each other. Even if they were the chance that they actually shared parts of the movie between each other is so low as to be nil.

    You really should read the documents linked to - they might be in legalese, but it is close enough to english for just about anyone to follow. And it does explain things simply enough for anyone to be able to understand them. Yes, there is an explanation for how a BitTorrent swarm works in the actual motion and it was written in such a way as to be understandable by any of the legal professionals - including the judge in the case.

    And regardless of whether or not "participating in the same swarm" is a legal theory that holds water and fulfills the requirements of the rules, well... There is the fact that these "joinders" benefit only the plaintiffs in the case and create hardships for the joined defendents that break the required "fairness" of the legal system. (Yes, the legal system is supposed to be fair - surprising, no ?) So the joinder should be undone anyway :)

    Again, read the actual motion. These arguments are covered in depth and explained in excruciating detail inside it. To tell the truth, I will be surprised if this motion doesn't go through. Doe #4 has a *LOT* of legal precedent on his side :)

  • Re:Not gonna fly (Score:5, Informative)

    by dshadowwolf ( 1132457 ) <dshadowwolf@noSPAm.gmail.com> on Friday June 29, 2012 @09:11PM (#40501193)

    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.

  • by TrekkieGod ( 627867 ) on Friday June 29, 2012 @09:28PM (#40501273) Homepage Journal

    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.... :)

    The submitter is an actual lawyer (it's not just his username). I'd assume he has the legal aspect of this down. He's probably more interested in a technical discussion of what consists of interactions in BT swarms. Slashdot is actually a good place for that.

  • Re:Swarm = Has file? (Score:4, Informative)

    by DanielRavenNest ( 107550 ) on Friday June 29, 2012 @10:41PM (#40501549)

    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)

Exceptions prove the rule, and wreck the budget. -- Miller