It will have blood; they say, blood will have blood
—Macbeth, Act III scene 4†
Our good and constant friend Keith Lipscomb has provided us with some ample food for thought, with a new filing in the Southern District of Florida entitled,—take a deep breath—,
Plaintiff’s Memorandum in Opposition to Defendant’s Omnibus Motion to Dismiss Action with Motion to Quash Non-Party Subpoenas or Enter Protective Order with Incorpated [sic] Memorandum of Law
S.D. Fl. 14-cv-20393-CMA #17. RECAP.
It’s Malibu Media’s usual screed that they pull out for cases in which their business model is attacked, so I don’t think it actually contains much new. But in any case I’ve been thinking over copyright trolling for some time, and so here are my thoughts on certain passages.
I. Business model
Malibu Media receives many complaints from its members asking why they should pay to subscribe when Malibu Media’s movies are available for free through BitTorrent.
Id. at 3. This is an excellent question, and not one to be easily brushed off. “Many internet blogs commenting on [these types of cases] ignore the rights of copyright owners to sue for infringement” Id. at 3, quoting Malibu Media, LLC v. John Does 1, 6, 13, 14 and Bryan White, 2013 WL 3038025 at n.1 (E.D. Pa. June 18, 2013). Yes, that’s the bellwether trial. It gets cited a lot in Malibu filings. Judge Baylson I presume meant fightcopyrighttrolls.com and dietrolldie.com, but in any case it is important to remember that suing for copyright infringement is not ipso facto a bad thing to do.
But onwards. Malibu professes to have “tens of thousands of members”. Id. at 2. Taking at face value that some of these subscribers do in fact complain as alleged, their subscribers face an economic choice between subscribing and obtaining the videos illegally. Yet they still subscribe. “Tens of thousands” have attested to the fact that yes, people will pay for something that can be obtained (illegally) for free. If Malibu wishes to know why their subscribers pay to subscribe, perhaps they should ask them, seeing as they apparently pay to subscribe.
This is a business/economic issue, not a legal one. Indeed, it is the exact same issue that any online subscription-based publisher faces, newspapers being the most notable example; indeed, arguably online newspapers have it even harder. As an example, at latest report The New York Times has 799,000 digital subscribers. Despite the fact that the NYTimes paywall can be trivially bypassed and that a story can be illegally shared using nothing more than a ctrl-c+ctrl-v (no hacking or BitTorrent required), their digital subscriptions revenue was $40 million in 20141Q (source). This was not due to the skill of the Times‘s lawyers. Somehow the management at the Times has figured out something that the Fields have not. (An important part of that something is that they do not blame lower growth in subscriptions than they would like on their readers, paying or otherwise.) I close this example by just noting that a bit of math shows that the Times‘s per-subscriber digital revenue is roughly equal to, if not less than, X-Art’s. I leave it to the reader to judge which provides more value.
The core problem here is that a few people—not by any means exclusively the Fields—have gotten it into their minds that copyright law is a remedy for struggling businesses (ignore that X-Art is hardly, even by their own admission, a struggling business). That is the link—often missed—between, on the one hand, copyright trolls, usually defined as those who file mass lawsuits in the hopes of profiting from settlements, and on the other hand, patent trolls, prototypically defined as non-practicing entities. (See also the next section.) This is a bit of a dead horse, but the Constitution provides for intellectual property protection only “to promote the Progress of Science and useful Arts”. Intellectual property protection does not, as much as some people would evidently prefer it to, exist to enrich businesses (or even individual content creators). I recognize that this is not the standard view evidently now taken by courts, legislators, their lobbyists, and possibly even a majority of IP attorneys. That must change.
A last point, taken from the standard mainstream microeconomics taught to high-school seniors and college freshmen all over the country. Should the marginal revenue associated with a particular good fall below its marginal cost of production, profit is maximized by reducing production. Should marginal revenue fall below the rate necessary to sustain the business at all, the business exits the market at earliest opportunity. The Los Angeles real estate market is much better than it was several years ago.*
*See id. at 1, line 22.
II. “Copyright troll”
The Fields cite again to the bellwether trial to assert that they are not copyright trolls. This is, firstly, an odd thing to try to defend against, as it is rather like citing to legal authority to argue that you are not an asshole. It doesn’t matter for the purposes of deciding a copyright action whether or not the plaintiff is frequently called a troll by
mean people on the internet Internet Hate Groups* (IHGs).
As before, they skirt the actual definition in current use, preferring to define “copyright troll” analogously to patent trolls as non-practicing entities. This is not the current definition, which is instead “conduct-based”: copyright trolls are defined as those who file large quantities of copyright infringement lawsuits to make money off of the settlements. This is not just a definition made up by “internet hate groups”*; there is now a research paper by a noted copyright expert attesting to it (Matthew Sag, “Copyright Trolling, An Empirical Study“, May 2014). Malibu Media has not attempted to dispute that they fit this definition…and they will have a difficult time if they try, as it was kind of invented specifically to describe them (as well as the now very-much-defunct Prenda Law, whom they, uncharacteristically, have not tried to distance themselves from in this current filing).
*Malibu’s term. Plaintiff’s Motion for the Entry of a Protective Order. N.D. Ill. 1:13-cv-06312 #94-1 (June 11, 2014).
III. BitTorrent technicals
If there is anything more depressing than the sad state of the caselaw surrounding the legal aspects of copyright trolling, it is the miserable state of the caselaw regarding the technical aspects of BitTorrent.
No technical aspect of BitTorrent had ever been decided by a federal appellate court until the AF Holdings case before the District of Columbia Circuit, in which EFF IP Director Corynne McSherry was reduced to valiant (and in my opinion, ultimately unavailing) attempts at explaining BitTorrent swarms as “poker tables” (changed by the judges in their opinion for no apparent reason to blackjack).
A common if not universal claim among copyright trolls, advanced to support enormous statutory damage awards, is that the BitTorrent protocol contains a tit-for-tat requirement in which any downloader must also be uploading, and thus that an infringer who obtains from BitTorrent a copy of a work (illegal under the Copyright Act) is also distributing copies (also illegal under the Copyright Act).
I have noticed that very few copyright troll observers—and no Doe defenders—understand the technicals of the BitTorrent protocol enough to respond to and critique trolls’ assertions on this front. Therefore I have sought in the next few paragraphs to explain precisely what the BitTorrent tit-for-tat system entails. In the interests of depth I use the relevant technical jargon, however I do not think there is anything particularly difficult to understand about it: the prerequisites are reading comprehension skills, not technical expertise. (I presume that if lawyers have any skills at all that reading comprehension is one of them, so why lawyers and judges are consistently among the worst at understanding of BitTorrent confuses me somewhat.)
Note: I knew none of the below before writing this post. All of it was found through judicious use of Google and Wikipedia. If I can do it, an attorney paid to make claims to courts about BitTorrent should be capable of it as well.
Firstly, tit-for-tat does not mean what attorneys—both for trolls and Does—think it means. It does not mean that some intrinsic property of the BitTorrent protocol ensures that in order to download one piece from somebody a user must first upload one piece to them. Surely lawyers (having, I presume, braved the logic section of the LSAT back in their student days) are keenly aware that this would make it impossible for anybody to download anything.
Instead the purpose of the BitTorrent protocol’s tit-for-tat scheme is to serve as a strategy for the iterated prisoner’s dilemma. Zghaibeh & Harmantzis et al., “The Behavior of Free Riders in BitTorrent Networks”, Springer: 2010. The goal is to dissuade downloaders from being “free riders” and downloading without uploading. The strategy comes in the form of three rules prescribing to BitTorrent clients how to choose who to upload to. (Some information below also taken from bittorrent.org/bittorrentecon.pdf)
- choke: All but some fixed small number of peers are choked, that is, the client will refuse to upload to them
- unchoke: The client unchokes those peers from whom it got the best download rates in the past 20 seconds. Should the peer not reciprocate, it is once again choked.
- optimistic unchoke: As away to proactively find good connections and coerce cooperation, at all times there is one peer, chosen randomly every 30 seconds, who is unchoked regardless of the download rate from it.
Lawyers will surely be able to give several scenarios in which a particular user can avoid uploading. From Zghaibeh & Harmantzis et al.:
With some modifications to a BitTorrent client, users will be able to apply several threat scenarios that allow them to completely free ride without contributing to the system. Some threat scenarios are very well known now: Serving false pieces, connecting directly to seeders, and using multiple identities.
In particular, if a downloader enters a swarm which contains only seeders (i.e. those who already have the entire file and reject uploads), the downloader will not upload anything.
Zghaibeh & Harmantiz et al. did quantitative measurements on real-world trackers and found that only approximately 50% of peers were observed uploading at least as much as they downloaded: 10% of peers (“free riders”) either did no uploading whatsoever or uploaded very little, and an additional 10% uploaded less than half as much as they downloaded and disconnected as soon as downloading completed. A newer study in the same paper found that up to 16.8% of peers were free riders.
In particular the BitTorrent investigator—assuming that they are telling the truth about how they go about their “investigations”—would be an absolute free rider, as they claim to be able to download the entire torrent from a single peer without ever uploading a thing to anybody, and to be able to do this over and over again. To my knowledge no BitTorrent investigator has ever disclosed how they manage to accomplish this feat, which by the three “tit-for-tat” rules above should be quite difficult.
Best of luck to whoever tries to explain this to a federal judge. Try Ungaro.
B. Cryptographic hashes
For some reason the nature of cryptographic hashes has entered the argument in several Malibu Media cases. Malibu, I presume at the instruction of the folks at IPP/Excipio, insists repeatedly that hashes are unique. This has no theoretical basis. The purpose of hashes in BitTorrent are to ensure against tampering: should a received piece be damaged in transit or tampered with, the hash will differ and the piece will be rejected. Technically speaking the relevant property of a cryptographic hash is not uniqueness (which can be trivially proven mathematically to be very much impossible) but that given a particular message (in cryptography we speak of messages), it is difficult (i.e. in practice impossible) for someone to create a second message with the same hash (a preimage attack). This is however a minor technical nitpick with no major legal implications.
A more troubling point is that the hashes can be used to confirm that somebody had downloaded the entire torrent, however it does not prove that the torrent is in fact a copy of some movie. The only way to show that is to play the file. Cryptographic hashes have nothing to do with this and I am not sure why Malibu Media’s filings feature so much discussion of them.
The way to show infringement is simple and straightforward. IPP claims to have a record of packet captures of IPP servers downloading the entire torrent from the defendant. The only thing that need be done is to bring the packet captures into court, swear under penalty of perjury that they are genuine, and then, on the spot, reconstruct from them the data received from the defendant’s computer (i.e. the torrent), and show that the data (on record as sourced from the defendant) contains within it a playable file that when played is the X-Art movie in question. Note that no cryptographic hashes are involved in any step of this. This procedure has never been carried out and Malibu’s filings (including the present one) show no indication that they are willing to do this or have even ever considered doing this. I leave the decision as to whether this is due to malice or incompetence to the reader.
III. Other things
The remainder of the filing is legal argument pertaining to witness contingency fees and private investigator laws and so forth. I leave analysis of that to the lawyers.
†Clarification: As Malibu Media’s lawyers appear to be extremely sensitive individuals, allow me to be clear that the quote that opens this post is not a death threat. I do not envision nor condone the presenting of disembodied heads of lawyers (or for that matter, pornographers) to rightful Kings of Scotland.