P2P lawyers tell judge: suing 5,000 "Does" at once is fine

[DaBees-Knees]

http://arstechnica.com/tech-policy/news/2010/06/p2p-lawyers-tell-judge-suing-5000-does-at-once-is-fine.ars

The US Copyright Group, a business name for the group of Virginia lawyers filing suits against tens of thousands of alleged US peer-to-peer movie downloaders, has been sharply criticized by the EFF and ACLU for suing up to 5,000 anonymous defendants at once. The suits were "improperly joined," said the groups. At least one of the federal judges overseeing these cases wanted to hear more, telling lawyers from Dunlap, Grubb, & Weaver to convince her that all of the anonymous defendants had participated in the same transaction.

Yesterday, lawyer Tom Dunlap tried his hand at the task, filing a 29-page document in the Washington, DC District Court. According to Dunlap, suing 5,000 anonymous users at once is proper because of how BitTorrent works.

Also, his firm is actually doing all these "John Does" a favor by "giving all Doe Defendants the ability to defend the case in one jurisdiction, e.g. the ability to combine or join other Doe Defendants’ filings and the ability to receive uniform decisions by the Court."

One of these is not like the others

Dunlap's basic argument distinguishes BitTorrent from all other P2P networks. While some courts previously frowned on joining P2P defendants in cases involving LimeWire or KaZaA, BitTorrent is different and should be held to a different standard.

"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.

"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."

Some older networks relied on direct downloads; a user wanting a copy of song might download the entire song from some other users who had a copy already. "Each particular act of infringement involved a specific one-on-one connection between two users for that specific file," says the brief. "Once the sharing of that file was over, so presumably was the relationship between the infringers."

But the lawyers argue that BitTorrent swarms create ongoing, complex network relationships, and that anyone who ever participated in a swarm for a particular file can be joined with anyone else. Much of this material comes nearly verbatim from the attached sworn declaration of Patrick Achache, the director of Data Services for Guardaley.

Guardaley is a UK company that operates out of an office park in Berkshire, and they handle all the IP address harvesting for the US Copyright Group. Using hashes, mathematical calculations that can show if files are identical, and file name and file size numbers, Guardaley claims that most movies it investigates have relatively few seeds; these few initial copies end up shared widely. (His example file was the 701.4MB "Far Cry 2008 DvdRip ExtraScene RG.avi." Numerous defendants have already claimed to Ars that they had never heard of this film before being targeted.)

Many downloads of the films in question must therefore involve a single file. If a set of IP addresses are seen to share this file—and not just any copy of a particular movie—they can reasonably be said to participate in the same transaction.

The EFF and ACLU will no doubt object to this characterization of BitTorrent; indeed, in their amicus brief, they claim that the court's analysis shouldn't change just because the protocol differs from earlier P2P lawsuits.

"Nor does the analysis change because the BitTorrent protocol works by taking small fragments of a work from multiple people in order to assemble a copy," they wrote earlier this month. "The individual Defendants still have no knowledge of each other, nor do they control how the protocol works, and Plaintiff has made no allegation that any copy of the movie they downloaded came jointly from any of the Doe defendants.

"Joining thousands of unrelated defendants in one lawsuit may make litigation less expensive for Plaintiff by enabling it to avoid the separate filing fees required for individual cases and by enabling its counsel to avoid travel, but that does not mean these well-established joinder principles need not be followed here."

EFF lawyer Corynne McSherry, who signed the brief on behalf of all parties, was yesterday admitted to appear in the case (as an out of state lawyer, she needs the judge's permission to appear). The judge today ordered a June 30 hearing, apparently to discuss the issue of joinder.

Not content with wanting to get a totally disproportionate amount of damages from internet users that they accuse of piracy, it now seems the cartels want to do it on the cheap and with the minimum amount of effort in court. Once again, it seems the cartels want to make up their own rules in court.