Tuesday, May 10, 2011

New BitTorrent Lawsuit Seems Awfully Expendable

As a major content producer gears up for another mass lawsuit aimed at users of peer-to-peer file sharing networks, the world won't be holding their breath. We've seen this before, and we know that suing individuals who download media illegally rarely solves anything. In fact, the failure of these lawsuits to change consumer behavior was precisely what revolutionized content distribution over the past decade.

The U.S. Copyright Group is pushing forward with requests for subscriber personal information from ISPs. Because we've seen cases that have shown that ISPs can be required to submit this information, and because none of the major service providers want to stick their neck out and be the subject of a potential Supreme Court privacy rights case, people are definitely being sued. The projected charge will be $150,000 per offense—clearly a figure designed more as a scare tactic than as an accurate goal.

Historically, each individual will end up paying a much more fathomable fine of about $3,000—still enough to drain the bank account of most offenders. This fine aims to recover the cost of the downloaded content, the estimated loss based on the copied file's proliferation on the P2P network, and legal fees associated with the lawsuit.

In this specific case, the downloaded content was a copy of the movie The Expendables and there will be an estimated 23,000 defendants, each of who purportedly downloaded a specific .torrent file (not in itself illegal) which, when opened with a BitTorrent client, connected the user to other users who had all or parts of that movie file. No doubt the movie studio that made The Expendables acted as a downloader of this torrent with the intention of trapping offenders, compiling a list of IP addresses that could be traced back to ISPs who would then be required to reveal the personal information of the downloaders

There are millions of torrents out there, and clearly, the downloaders of the files can't all be pursued by lawyers. Studios merely aim at a specific file, make a big deal of it, and try to scare people away from downloading other content owned by that company. This appears to be the only way that they can fight peer-to-peer file sharing.

However, as mentioned above, the failure of such lawsuits to change consumer behavior has instead changed the way the industry operates. We can now pay $9 per month to stream a nearly unlimited amount of content directly into our homes via Netflix, Grooveshark, and similar services. By making it easy and affordable, everyone wins. Lawsuits against Bearshare, Grokster, and others in the mid-2000s didn't change anything; if they did, we wouldn't even be talking about BitTorrent right now.

The studios will need to prove that copyright infringement occurred, but they won't have to show that it matters. If I download a copy of The Expendables to watch in my own home, with my upload ratio set to zero (which means I don't send it to anyone) and I never give it to anyone, is it really breaking copyright law? Court cases have shown that individuals have the right to make copies of their own CDs and DVDs for personal use, because a three-year-old breaking your original copy of New Jack City shouldn't mean that you have to pay for the movie again; you're already the owner of the content since you've paid for the rights to  personal use within your home.

As I've written before, I extend this school of thought to torrent downloads for movies I can stream via Netflix, the reason being that my Netflix interface is flaky, crashing, showing movies in the incorrect aspect ratio, etc., while many DVD rips available for download are created by experienced technophiles who make exceptional rips, which I then watch on a media server. I don't copy it for anyone else, and I don't screen it for a large group. If I pay for Netflix, and I can stream New Jack City completely legally, I am the owner of the content as long as I subscribe to the right to view that content legally. Therefore, if I download the same movie and don't make copies of it for anyone (which includes both physically burning DVDs and uploading via my BitTorrent client), then I'm not doing anything illegal.

Can I view The Expendables via Netflix Instant? Not yet, but I can borrow the DVD for as long as I want, which is analogous to borrowing the movie by downloading a copy of it, as long as I never uploaded it to anyone. This is precisely why my BitTorrent client's upload ratio is zero; not because I'm a jerk who doesn't want to help the community, but because I truly consider this to be the deciding factor over whether I did anything illegal or not.

And because I never uploaded to the movie studio itself, they never recorded my IP address. And because they don't have my IP address, I won't be a defendant in any lawsuits anytime soon.

Movie studios, the RIAA, and other media giants still haven't learned their lesson. It does more harm than good to make life difficult for those who obtain their content via peer-to-peer networks. Ultimately, their tactic will not succeed, as it never has. Ironically, Google defines expendable as "Of little significance when compared to an overall purpose, and therefore able to be abandoned." Sounds an awful lot like their pointless lawsuits.

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