updated 05:30 pm EST, Sat February 1, 2014
Judge states that participation in swarm is too imprecise
In December, an Iowa judge dealt a heavy blow to the multiple-party anonymous "Doe" lawsuits involving piracy when she ruled that defendants couldn't be joined together due to the nature in which BitTorrent works. District Judge Stephanie M. Rose ruled that the cases, in which three independent films were pirated, couldn't have defendants lumped into single cases and must instead be limited to one party each.
In documents obtained by Torrentfreak, Judge Rose showed what the pro-torrenting site called "a level of understanding not previously demonstrated at the judicial level when it comes to piracy and copyright infringement," especially as it pertains to joinder and the burden of evidence it requires. Evidence presented to justify joining the cases included a SHA-1 hash file and supposed several months-long sharing windows that were identical among the various defendents. In Judge Rose's opinion, she recognized that close time proximity and identical hash files didn't constitute a sharing amongst the mass Does included in the lawsuits.
The complaints in each case contended that just by connecting to a torrent "swarm" and having one bit of the infringing file meant that each person behind a node or connection was taking part in illegal uploading. "This means that every 'node' or peer user who has a copy of the infringing copyrighted material on a torrent network must necessarily also be a source of download for that infringing file," states the complaint in documents filed against the mass Does for the three films at the center of the dispute.
The documentation provided by the complainants maintains that anyone that has a piece of information is to be identified as a source until another party downloads the same piece. Thus the users, traced by IP to locations in Iowa, "deliberately participated in a swarm and/or reproduced and/or distributed the same seed file." Therefore, individuals who downloaded one of the three films in January 2013 were still connected legally to a person who downloaded in April 2013 from the same seed identified by the hash file value.
Judge Rose ruled, however, that the seeds in question weren't enough information to quantify the use of a joinder in the five cases and refused to issue one. Thus, the cases were cut to only one anonymous "Doe" by the judge as "to avoid causing prejudice and unfairness to the defendants, and in the interest of justice." The most important reason to the finding, specifically with the case with Hard Drive Productions, Inc., was that "any 'pieces' of the work copied or uploaded by any [individual named in the case] may have gone to any other [defendant], or to any of the potentially thousands who participated in a given swarm. The bare fact that a Doe clicked on a command to participate in the BitTorrent Protocol does not mean that they were part of the downloading by unknown hundreds or thousands of individuals across the country or across the world."
In the judge's ruling, the court went as far to explain how BitTorrent actually works. The document went on to state that merely leaving the software on doesn't mean participation if the user opted out of joining the seed after the forced upload period BitTorrent enacts while downloading. The "hit dates" became a trivial matter as well, as the court found many of them weren't at the same time, nor even the same day.
Information from Internet service providers was also at the heart of the cases, as subpoenas seeking information about the "Does" in the cases were quashed outside of the remaining defendants. As for the remaining Does, the information requested left ISPs with a burden to track down the identity of the anonymous person within seven days in order to provide them with a subpoena and information about their information being requested. ISPs were left with an opportunity to get out of the case out if they couldn't identify the users of the IP address connected to the violation "to a reasonable degree of technical certainty." Plaintiffs were specifically barred from seeking or obtaining telephone numbers or mail addresses, leaving IP address as the sole identifier unless information had already been obtained.
All Does outside of the first defendant, or second in one case, were severed from the cases and the claims "dismissed without prejudice to refiling in separate actions." The ruling in these Iowa cases, said TorrentFreak, is a precedent for future Does included in these mass cases across the country.