Says that BitTorrent is “significantly different in its architecture than the older P2P protocols,” that users create torrent trackers to “essentially create a network dedicated to sharing just that specific file.”
The US Copyright Group, the the DC-based venture that is trying to create a new business model by targeting tens of thousands of BitTorrent users at a time, is being forced to justify why the court should allow it to combine thousands of individual file-sharers into a single lawsuit.
It concerns what’s known as “Permissive Joinder of Parties,” and comes from Rule 20 of the Federal Rules of Civil Procedure.
Persons — as well as a vessel, cargo, or other property subject to admiralty process in rem — may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.
It’s the first part that the USCG argues is relevant in the case because each BitTorrent user, by being part of a swarm, is part of the same “transaction” responsible for sharing copyrighted material.
“Under the BitTorrent protocol, the initial file-provider intentionally elects to share or upload a file via a BitTorrent network. This is called ‘seeding,’” it says. “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.”
The USCG says that the “BitTorrent protocol” network is “significantly different in its architecture than the older P2P protocols” and that’s why the case is different from other file-sharing trials that have targeted a single individual at a time.
It points out that BitTorrent users can create trackers that “essentially create a network dedicated to sharing” a specific file, and that it’s this joint series of “transactions” and “occurrences” that justifies their inclusion in a single lawsuit.
The Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), and Public Citizen have already argued in briefs submitted to the court that the USCG has yet to prove that it even has jurisdiction over the John Doe defendants that the subpoenas are supposed to identify,
“By requiring those sued to defend these cases in D.C., regardless of where they live, and by having thousands of defendants lumped into a single case, the USCG has stacked the deck against the defendants,” said EFF Senior Staff Attorney Corynne McSherry.
The USCG counters that there are benefits to having thousands of people show up in a DC courtroom to answer the charges against them.
It says they “fail to acknowledge the benefits of 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.”
I guess it thinks travel and lodging expenses, not to mention time off work, to hear these “uniform decisions” in a distant DC courtroom are minor inconveniences.
Curiously enough, the USCG’s argument for joining BitTorrent users together in a single lawsuit because they comprised the same copyright infringing swarm at one time or another may also actually be its biggest flaw. As Techdirt’s Michael Masnick points out, “anyone doing the sharing is contributing such a minimal part to the whole…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.”
That’s the thing. A user could possibly have only contributed several MBs to other users in a swarm sharing a 700MB XViD copy of one the copyrighted movies that the USCG is suing on behalf of. This hardly justifies the tens of thousands of dollars in damages it will be seeking.