Just when you thought it was safe to do P2P file sharing again, we find that P2P lawsuits have become big business once more.
Don't look to me for vitriol, I'll save my energy and direct you elsewhere to vent.
But don't get me wrong, I'm against this sort of thing, and I'd like to think of a solution. And when I say "solution", I mean some way for everyone to continue downloading free shit without getting in trouble for it, because that's obviously the only reasonable outcome, right?
As a nerd, my first response is to think of a technology-based solution to the problem. Here, the way I see it, we need two things:
- Avoid guilt by association
- Achieve mutually assured destruction in case of a lawsuit
In fact, we could achieve both of these things fairly easily with a few modifications to the typical torrent protocol.
The Plan
The setup: Alice wants to download an independent movie, and she's found a torrent where it's being offered. But Alice knows that Bob works for the producers of said movie, and he's watching for people downloading the movie so he can bring lawsuits against them and supplement the meager income that the movie actually earned in the box office. Bob relies on the fact that in order to download the movie via torrent, it's necessary to upload it to other people as well - this is great for him, because he can go after people for illegal distribution of a copyrighted work, which pretty much guarantees him cash when he finds his mark.
Right then. So what can Alice do? For one, Alice can try to specifically block Bob from connecting to her computer, under the theory that even if she's listed as part of the swarm, Bob will have a tough time proving that she's distributing the movie if he couldn't download any of it from her. Obviously this is not ideal, though; Alice might not know Bob's IP address, he might even have multiple ones, and there's always the risk that if it came down to it the simple fact that she's in the swarm might incriminate her. Even if he didn't have proof to stand up with in court, Bob could always threaten Alice with a lawsuit and offer a settlement, and Alice would have no idea whether Bob was bluffing or not. Not a great situation for Alice.
Enter Cathy. Cathy made some modifications to the way the torrent downloading software works, and got together a large group of people using her new version. Instead of merely connecting up to a single tracker, when Alice wants to download a movie using CathyTorrent, she connects up with an additional set of trackers tracking items that she has no interest in (or rather, CathyTorrent does it for her, automagically). She won't actively participate in these downloads, but she's listed as a peer under each one.
That hasn't bought Alice much yet. She's still got to share pieces of the file she wants in order to get the thing, so Bob can still nab her. But Cathy's a smart cookie, and she has help from Debra.
Debra owns the copyrights on a dozen or so smallish text files, containing sonnets that she painstakingly created and hopes to license. Unfortunately, her licensing fees are rather high, so there aren't many takers. Debra still wants to get her work in front of people, though, so she's decided to turn a blind eye to most copyright infringement of her work. She's fine with Cathy using the files as part of CathyTorrent's new protocol, and has no problem with users of said software redistributing the files.
Unless and until, that is, someone was to bring a copyright lawsuit against a CathyTorrent user in court. At that point, the friendly (possibly informal and unstated) agreement that Debra extended to most users becomes null and void, and she'll bring the full weight of her extensive legal team down to bear upon the infringing party. After all, it's her work, she has the right to determine who gets to distribute it.
So now, Alice is connected to the swarm, and finds a peer named "Boris" that wants to share pieces of the movie with her in exchange for the pieces that she has. She suspects this "Boris" might in fact be Bob under a fake name, but has no way to be sure, since she doesn't recognize the IP. So before she sends any of the movie his way, they "shake hands" by sending each other some of Debra's sonnets. Only once they've each verified that the other sent the actual set of sonnets through (thus opening themselves up to a dozen or more counts of infringement-fueled hellfire from Debra's lawyers should Debra get pissy) do they ever send a single bit of the actual movie that they're interested in.
Now recall that I said Alice was connected to several trackers; sometimes Eric, on one of these other trackers, requests part of his Ubuntu 12.10 (Quotidian Quokka, obviously) LiveCD from Alice, but she's not interested in that file, and she doesn't even have it (though she may have reported having parts of it, because that's how CathyTorrent rolls). In this case, at some random point (under some probabilistic weighting) before the end of the handshake, but after having sent a few full sonnets through, Alice simply bids Eric adieu, and since Eric didn't complete the handshake with her, he moves on to find another source; he temporarily blacklists Alice on that file, and won't ask her for it again.
Bob's job has just become infinitely harder. He's got some tough decisions to make: he wants to prove that Alice has been distributing his client's movie, but he doesn't want to open himself up to the wrath of Debra, so he certainly can't complete the handshake with Alice only to sue her in court later - even if he won the lawsuit or extracted a settlement from Alice, Debra would have him on more counts of infringement than he had Alice on (recall, there are many separate works included as part of the handshake), so he'd come out behind. But because Alice is using CathyTorrent, she's been listed in many swarms that she is not actually participating in; in fact, she didn't even select them, the software did it automatically. Unless he actually completes the handshake with her, he doesn't even know if she's really sharing his client's movie or not, she could very well just be downloading Ubuntu, perfectly legally. The fact that she's willing to start the handshake doesn't prove anything, because everyone starts the handshake; the only way to know who's really willing to share the file is to complete the handshake, and it's impossible to know whether Alice will finish the handshake unless Bob has already fully shared several of Debra's sonnets.
At this point, Bob decided to stop chasing Alice and just focus on the Azureus users - this was supposed to be easy money, and even if he could possibly come up with some sort of legal workaround, it's too damn risky. There's always the chance that Cathy and Debra's shenanigans will hold up in court, and that's not something he wants to mess with.
Now, obviously this scheme is not perfect. It's a bit wasteful of bandwidth, and it overreports the number of peers (and flat out lies about the pieces of the file that the phony peers have); that's the price to pay, I guess. Cathy might be in some trouble, since it's been pretty firmly held that developers of software where the primary purpose is infringing can be found guilty of secondary infringement, so she needs to make sure her ass is covered, or perhaps far away from any jurisdiction that will care enough to track her down. In addition, Debra would have to be trustworthy and committed - she would have to be willing to put up the up-front costs of bringing legal action against Bob should he decide to fight, and Alice would need to trust Debra to help her out with any settlement or legal costs should Bob sue.
But at the root of it, the fact remains, if Bob wants to prove that Alice infringed on his client's copyright, he needs to admit that he or one of his agents infringed on Debra's, and Alice will have the logs to prove that it's so, which she'll be more than happy to share with Debra - the only way around this would be if Bob could somehow keep the IP that he used to download from Alice secret. But the fact that he caught Alice is, in itself, evidence of a crime against poor old Debra, an uninvolved third party, and Debra could probably use that in itself to begin legal proceedings. Debra has done absolutely nothing even remotely illegal, so while a judge probably wouldn't like her for being involved in this scheme, I think he would be hard pressed to find a legal reason to dismiss her completely valid copyright claims.
