BitTorrent Pirates, Copyright Troll Lawsuits, and the Forthcoming Congressional Response

Imagine by: Cyberspace Law and Policy Centre, University of New South Wales

BitTorrent has become the tool of choice for Internet users sharing digital media. BitTorrent is a peer-to-peer file sharing protocol under which users can access the files shared on others’ computers. The genius of the technology as compared to pre-existing P2P technologies is that it allows users to “swarm” connections, i.e., upload and download pieces of large files from multiple sources at once. The BitTorrent protocol was first released in 2001 and use of the tool has increased steadily over the last decade – with over one hundred million active users of the technology and more arriving daily. This army of users is, wittingly or unwittingly, often guilty of violating the rights of copyright holders.

Needless to say, most media industries that rely on traditional distribution mechanisms are in no way “cool” with this latest wave of file-sharing technology and its tendency to enable copyright infringement. In an attempt to recoup some of the losses that they are incurring from pirates, several companies have enlisted the help of lawyers to churn out massive John Doe lawsuits. In the face of a threatening cease and desist letter (that notes the possibility of $150,000 in damages per download) the suspected infringer is urged to settle. The superficial nature of these lawsuits has earned the firms that engage in this practice the not-so-endearing term “copyright troll”. Corynne McSherry, intellectual property director at the Electronic Frontier Foundation described the practice as “a dragnet approach to litigation.”

One prominent Washington D.C. law firm calling itself the U.S. Copyright Group sued 25,000 users for downloading the movie “The Hurt Locker” in April of 2011. Jeffrey Weaver, head of the U.S. Copyright Group described the approach of his group: “We’re creating a revenue stream and monetizing the equivalent of an alternative distribution channel.” Yikes. Many of The Hurt Locker suits were dropped because of a lack of personal jurisdiction. Another massive lawsuit campaign took place over infringement on The Expendables (do you remember this incredible cinematic achievement?). 70% of the profits from these settlement shakedowns go to the lawyers, with only 30% returning to the rights holders. So at least the lawyers are happy.

More of these lawsuits are coming down the pike (for a weekly update, see http://story.albuquerqueexpress.com/index.php/ct/9/cid/63e88d54af0cf473/id/46388238/). The best way for BitTorrent users to avoid getting sued is not to download or share any copyrighted material- i.e., only share/download files 1) that are in the public domain, 2) for which you have permission to share, or 3) that are made available under pro-sharing licenses. The Electronic Frontier Foundation provides advice on what to do in the event that a cease and desist letter is received.

Meanwhile, Congress is spinning its wheels once again to create new legislation providing additional enforcement mechanisms for the rights holders. Senator Leahy’s proposed Protect IP Act is the latest attempt; many are critical of the bill’s tendency to inhibit technological innovation.

The digital piracy problem has, to this point, been unsolvable. The media establishment and Congress’s responses over the last decade feels a lot like a rearranging deck chairs. Traditional business models that create revenue streams based upon their pseudo-property rights are opposed to the very concept of the Internet as a tool for the open exchange of information. Whether the tool in question is Napster, YouTube, Google Books, BitTorrent, or some unforeseen, yet-to-be-invented piece of technology, we can be sure the opposition from IP rights holders will continue.