BitTorrent users don't "act in concert," so judge slashes mass P2P case

By Nate Anderson |

Steele Hansmeier, the antipiracy law firm that has been routinely hammered by judges in Illinois, is now getting hammered by judges in California. The firm has tried desperately to head off all the common objections to its mass file-sharing lawsuits over online porn, and has even taken to geolocating IP addresses before filing a lawsuit; its Hard Drive Productions case in California only went after 188 IP addresses that appeared to be located in the state. But the firm still had its entire case severed down to a single defendant last week.

Geolocation tools may help convince skeptical judges that a lawsuit is more than a national fishing expedition, one mainly targeting people outside a court's personal jurisdiction. (Judges in other jurisdictions have expressed annoyance such tools weren't first used to winnow the list of IP addresses.) But P2P lawsuits have other problems, including the fact that they generally "join" people who have little in common except for a taste in digital porn (in this case "Amateur Allure - Erin"). And increasingly savvy judges are now parsing claims about BitTorrent with a scholar's eye to see if these defendants really should be linked.

"The court remains unpersuaded that the peer-to-peer architecture of the BitTorrent technology justifies the joinder of otherwise unrelated defendants in a single action," wrote (PDF) federal Magistrate Judge Joseph Spero last week before launching into a detailed analysis of how BitTorrent "swarm" activity might be mapped to existing legal notions about "acting in concert":

First, the Hansmeier declaration [about BitTorrent technology] argues at length about the "concerted activity" within a given swarm. Presumably he does so in response to the concern highlighted by Judge Ryu that users in different swarms have nothing in common other than downloading the same work, which as this court and others have noted is insufficient under our precedent. But the Hansmeier declaration itself offers overwhelming evidence that the IP addresses were in fact gathered from multiple swarms.

Second, even if the IP addresses at issue in this motion all came from a single swarm, there is no evidence to suggest that each of the addresses "acted in concert" with all of the others. In fact, the nearly six-week span covering the activity associated with each of the addresses calls into question whether there was ever common activity linking the addresses in this case. In this age of instant digital gratification, it is difficult to imagine, let alone believe, that an alleged infringer of the copyrighted work would patiently wait six weeks to collect the bits of the work necessary to watch the work as a whole. At the very least, there is no proof that bits from each of these addresses were ever assembled into a single swarm. As the court previously explained, under this court's precedent regarding other file sharing protocols, merely infringing the same copyrighted work over this period is not enough.

Finally, nothing in the BitTorrent architecture changes the fact that each defendant also will likely have a different defense.

This last point, a thoroughly practical rather than theoretical one, carried real weight with Spero. Even if all users were in his state, and even if they were all part of the same swarm, he still wasn't going to let them all be joined into a monolithic case.

The Court finds that permissive joinder of the Doe Defendants does not comport with the “notions of fundamental fairness,” and that it will likely cause prejudice to the putative defendants. The joinder would result in numerous hurdles that would prejudice the defendants. For example, even though they may be separated by many miles and have nothing in common other than the use of BitTorrent, each defendant must serve each other with all pleadings - a significant burden when, as here, many of the defendants will be appearing pro se and may not be e-filers. Each defendant would have the right to be at each other defendant’s deposition - creating a thoroughly unmanageable situation. The courtroom proceedings would be unworkable - with each of the 188 Does having the opportunity to be present and address the court at each case management conference or other event. Finally, each defendant’s defense would, in effect, require a mini-trial.

Spero thus severed 187 defendants from the case; he noted that this approach has become common among California federal judges, making the Golden State an unpromising place to pursue P2P litigation en masse. Suing people remains an option, but one that has to be exercised on a case-by-case basis with all the filing fees and massive increase in paperwork that this entails.

Science & Technology :: 854 Views

NEWSLETTER SIGN-UP

Our newsletter is released only to notify you about the exclusive stories on the site, exclusive leads on investigations and alerts on projects like video documentaries released by New World Order Report

Email Address:

RADIO ARCHIVE

Click here to read Jonathan Elinoff's bio

Latest radio interviews:

4/29/2012 11AM - Jonathan Elinoff joins Craig Silvermann on the Ross Kaminsky Show on Denver's 850KOA to discuss the Pat Sullivan story, confession and newly released information

4/27/2012 6AM - Jonathan Elinoff a freelance videographer and investigator who broke the Pat Sullivan meth for sex story is in studio with Peter and Julie Hayden investigative journalist for Fox 31 joins Peter and Jonathan to discuss the ugly Pat Sullivan story. Is Pat Sullivan a smaller piece in a larger puzzle of deviant sexual corruption?

4/27/2012 7AM - The show continues to heat up this hour; Bryan Maass of CBS 4 News joins the show to provide his take on the Pat Sullivan interrogation tape. What did Pat Sullivan admit to and what accusations could be corroborated. Why did the District Attorneys decide to proceed with a plea deal instead of a trial? Julie Hayden, Jonathan Elinoff, Bryan Maass and Peter Boyles discuss what is true, what is just and did Pat receive a sweetheart deal, there is contention and disagreement about the Sullivan interrogation tape and the four engage in great discourse and discussion.

4/27/2012 8AM - Peter opens up the show to calls this hour and the lines light up with many listeners weighing in on the Pat Sullivan story. This hour has many voices, views and opinions and discussion between Peter, Jonathan and callers. What do you think about the sentencing that former Arapahoe County Sherriff Pat Sullivan received for his sex for meth scandal?

4/6/2012 6AM - Peter Boyles Show - Jonathan Elinoff the investigative reporter who was instrumental in breaking the Pat Sullivan meth for sex scandal joins Peter for the full hour to discuss his investigation into the dark world of drugs and male prostitution. Jonathan and Peter delve into the egregious story of sex, drugs, coercion, abuse of power and possible murder.

4/6/2012 8AM - Investigative reporter for Fox 31 Julie Hayden joins the show and John Elinoff returns to discuss the Pat Sullivan story and the possibility of a connection between Eric Harris and Dylan Klebold of the Columbine massacre. The Sullivan Story is sure to continue and seems to get stranger and more deviant.

4/6/2012 9AM - Tom Martino addresses a caller about the alleged sex trafficking that was observed in the Sullivan investigation at the start of the show...

4/4/2012 8AM - Peter Boyles Radio Show Interviews Jonathan Elinoff and Tom Martino about Pat Sullivan Meth for Sex Scandal

4/4/2012 9AM - Tom Martino continues the Peter Boyles Interview with Jonathan Elinoff and Tom Martino about Pat Sullivan Meth for Sex Scandal

4/4/2012 3PM - Caplis and Silverman Radio Show Interviews Jonathan Elinoff about the Pat Sullivan Meth for Sex Scandal

2/2/2012 3PM - Jonathan Elinoff interviewed on KGNU in Boulder and Denver Colorado about his investigation into former Sheriff Pat Sullivan in the "Meth for Sex" scandal, with host Shareef Aleem

12/16/2011 8AM - Peter Boyles Radio Show Interviews Jonathan Elinoff and Tom Martino with release of info

12/16/2011 7AM - Peter Boyles Radio Show Interviews Jonathan Elinoff and Tom Martino with release of info

12/2/2011 9AM - Tom Martino & The Troubleshooter Network Radio Show Interviews Jonathan Elinoff with release of info

12/1/2011 3PM - Caplis and Silverman Radio Show Interviews with release of info

12/1/2011 10AM - Tom Martino & The Troubleshooter Network Radio Show Interviews Jonathan Elinoff with release of info

12/1/2011 9AM - Tom Martino & The Troubleshooter Network Radio Show Interviews Jonathan Elinoff with release of info

12/1/2011 - 8AM - Peter Boyles Radio Show Interviews Jonathan Elinoff with release of info

11/30/2011 5PM - Caplis and Silverman Radio Show Interviews with release of info

11/30/2011 4PM - Caplis and Silverman Radio Show Interviews with release of info

11/30/2011 11AM - Tom Martino & The Troubleshooter Network Radio Show Interviews Jonathan Elinoff with release of info

11/30/2011 10AM - Tom Martino & The Troubleshooter Network Radio Show Interviews Jonathan Elinoff with release of info

11/30/2011 9AM - Tom Martino & The Troubleshooter Network Radio Show Interviews Jonathan Elinoff with release of info

11/30/2011 8AM - Peter Boyles Radio Show Interviews Jonathan Elinoff with release of info

11/30/2011 - Truth Jihad Radio with Kevin Barrett interviews Jonathan Elinoff on the following up with the now breaking story of Pat Sullivan and the scandal related to it

11/16/2011 - Truth Jihad Radio with Kevin Barrett interviews Jonathan Elinoff on the first breaking story of Pat Sullivan and the scandal related to it

9/22/2011 - Tom Martino Show with Special Guest Jonathan Elinoff: Discussion about underground facility at D.I.A.

9/8/2011 - Tom Martino Show with Special Guest Jonathan Elinoff: Tom Martino wakes up to 9/11

9/8/2011 - Peter Boyles Show with Special Guest Jonathan Elinoff: Discussion about the Core of Corruption sequels as well as 9/11 in general and Elinoff's research on it

1/27/2011 - WKRP with Host Rob McNealy with Guest Jonathan Elinoff, Editor of New World Order Report. Click here for the show information and bio Click here for the 1/27/2011 Show

To listen to any other radio interviews or archived radio shows, check our Archives section or click here.

SUPPORT US

&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;br&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;

New World Order Report is proud to offer our award winning documentary, Core of Corruption: In the Shadows. Click the ad below to order the DVD

Watch Core Of Corruption: In the Shadows for FREE Below: