Why bittorrent-based copyright infringement lawsuits are questionable.

This will be the first in a number of ‘simple, to the point’ educational topics.  Over the past seven years, our law firm has explained and taught these concepts in the context of discussing one lawsuit or another, but here I am distilling the topic down to the subject alone.  This article will discuss why actual bittorrent evidence (the PCAP file) is missing from the case.

WHY BITTORRENT-BASED COPYRIGHT INFRINGEMENT LAWSUITS ARE BASED ON NON-EXISTENT BITTORRENT EVIDENCE

Copyright infringement lawsuits based on bittorrent activity accuses a defendant of a crime without that defendant being there ‘at the scene of the crime.’  The infringement happens at a computer, and the ‘crime’ occurs in cyberspace (over the internet).

Any evidence linking the defendant to the actual downloading is circumstantial.  This means that a plaintiff attorney needs to use technology to prove the bittorrent evidence, namely, that the defendant’s computer or phone connected to a particular server or some virtual ‘room’ where multiple computers got together to share a copyrighted file, AND THAT A WATCHABLE PORTION OF THE FILE WAS DOWNLOADED.

However, simply proving that an accused account holder was “in the room” is NOT SUFFICIENT to prove that copyright infringement (the download) actually happened.

Bittorrent Evidence is in the PCAP file

One method of proving innocence is documenting that the accused defendant was not at the keyboard when the ‘crime’ was committed.  However, there is better evidence to prove one’s innocence — whether or not the download (and thus copyright infringement) actually happened.

What is sufficient bittorrent evidence to prove actual infringement?

Actual bittorrent evidence can be found in what is called the “PCAP file.”  This file lists whether 2% of the movie was transferred, or whether 100% of the movie was transferred.  Surprisingly, instead of producing this PCAP file as bittorrent evidence, plaintiff attorneys rely on circumstantial evidence — namely, “the John Doe Defendant’s IP address was connected to the bittorrent swarm at that date and time, so he must be the infringer.”  However, proving the defendant was ‘in the room’ (that his computer was connected to the bittorrent swarm where infringement happened) does not mean that he copied the file.

Because there is only a murky and circumstantial connection between the ‘scene of the crime’ and the accused defendant, it is easy for an unscrupulous attorney to assert the existence of bittorrent evidence and accuse someone of copyright infringement without having done research to prove that it was the defendant who actually did the download.

HOW CAN A DEFENDANT BE ACCUSED OF COPYRIGHT INFRINGEMENT WHEN HE DID NOT DO THE INFRINGING ACTIVITY (E.G., HE DID NOT DO THE DOWNLOAD)?

Technology can be misused by savvy internet users to mask their identity, or to make their activity look as if it was being done by another person or another computer connection (e.g., changing the MAC address of a computer, or spoofing the IP address to look as if your computer has someone else’s IP address).  These individuals have more of a proclivity to commit crimes, and often it is the individual having that actual IP address assigned to him that gets accused of the crime committed by the individual who spoofed his IP address.

WHEN ARE SETTLEMENTS ETHICAL, AND WHEN ARE THEY CONSIDERED EXTORTION-BASED COPYRIGHT TROLL ACTIVITIES?

Going back to the plaintiff attorneys, the copyright infringement attorneys know that it will cost them many tens of thousands of dollars (sometimes hundreds of thousands of dollars) to take the lawsuit all the way to a trial.  For this reason, they ask the defendant to settle the claims against them for multiple-thousands of dollars claiming it will also save the defendant multiples of that amount to fight the case.  There is nothing wrong with this, and this sort of settlement activity happens all the time.  A REASONABLE SETTLEMENT is the amount the copyright holder should expect to get if they proceeded with the lawsuit balanced with the time saved by settling without the need or expense of costly litigation.

An attorney becomes called a “copyright troll” when they unethically start eliciting settlements not knowing or caring whether the individual they accused of copyright infringement actually did the ‘crime’ or not.  That attorney will often threaten that he will run up litigation fees and destroy the financial life of the defendant (“I will take your house or force you into bankruptcy”) if they do not pay the exorbitant amount the plaintiff attorney is asking for.

It is also the belief of the author that filing “John Doe” copyright infringement lawsuits against individual bittorrent users is unethical in itself.  The attorney filing the lawsuit is not doing so in order to protect the rights of the copyright holder, nor does that attorney have an intent to bring the lawsuit to trial.  Rather, they file the lawsuits to ‘monetize’ the copyrights (meaning, they take money from the bittorrent users as a model of rewarding the copyright holders).

This would be fair if the accused downloader were asked for the ACTUAL DAMAGES they caused the copyright holder (ACTUAL DAMAGES is the measurement of the actual loss to the copyright holder based on the defendant’s unlawful activities, for example, the loss of a sale of a movie ticket or DVD, plus the costs of the copyright holder in recovering the lost sale, e.g., the $400 filing fee for the lawsuit plus the attorney fees involved in recouping the losses), but this is not what copyright holders ask for.  Instead, they ask for exorbitant settlement amounts — sometimes thousands or tens of thousands of dollars — under the threat of pursuing the downloader for the full $150,000 statutory damages it is entitled to ask for in a lawsuit. (STATUTORY DAMAGES are damages determined by law which are awarded to copyright owner who proves copyright infringement, regardless whether actual damages occurred).

This activity is commonly called “copyright trolling,” and consequently, attorneys who file serial copyright infringement lawsuits and their copyright holder movie companies are called “copyright trolls.”


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