BitTorrent copyright trolls: a deficiency in the Federal Rules of Civil Procedure?

• Author: D'Amato, David

1. Who are Copyright Trolls? A. Copyright Troll Tactics II. Bittorrent and Peer-to-Peer Technology A. Traditional Downloads B. Peer-to-Peer File Transfers C. The Bittorrent Protocol III. Subpoenas A. Motion to Quash B. Motion For Protective Order IV. Joinder V. Personal Jurisdiction A. New York Long-Arm Statute Analysis 1. Defendant Committed a Tortious Act Outside of the State 2. The Cause of Action Arises from the Out-of State Tortious Act 3. The Act Caused Injury to a Person or Property within the State 4. Defendant Expected or Should Reasonably Have Expected the Act to Have Consequences in the State 5. Defendant Derived Substantial Revenue from Interstate or International Commerce B. Due Process Clause 1. Minimum Contacts 2. Traditional Notions of Fair Play and Substantial Justice 3. Burden on the Defendant C. Interests Of The Forum State 1. Plaintiffs Interest in Obtaining Relief 2. Interstate Judicial System's Interest in Obtaining the Most Efficient Resolution of Controversies. 3. Shared Interest of the Several States in Furthering Fundamental Substantive Social Policies Conclusion I. Who are Copyright Trolls?

   Who are copyright trolls? Simply put, "copyright trolls" are law firms, individual attorneys, or other organizations that acquire the copyright of a particular work, usually a movie, and subsequently sue Internet users with the intent of extracting settlements using questionable legal tactics that border on extortion. (1) The tactics typically used by copyright trolls involve copyright infringement allegations against large groups of anonymous "Doe" defendants for the purpose of minimizing court costs, utilizing the incredibly high statutory damages in copyright law to intimidate defendants, and causing them to settle quickly with little or no litigation and without regard to innocence or guilt. (2)

   1. Copyright Troll Tactics

   Lawsuits initiated by copyright trolls typically proceed along a common path. First, copyright trolls work with companies that specialize in monitoring peer-to-peer file sharing networks such as those using the BitTorrent protocol. (3) These companies collect the IP address and timestamp data of anyone believed to be uploading or downloading the copyrighted material owned by the troll. (4)

   Once a copyright troll obtains a list of IP addresses alleged infringers of its intellectual property rights, the next step is to find the people associated with those IP addresses. To accomplish this, the troll will file a lawsuit against a large group of "Doe" defendants. (5) By consolidating the defendants, the copyright troll can save tens of thousands of dollars on court filing fees. (6) Subsequently, the troll secures a subpoena from the court ordering the Internet service provider ("ISP") that serves the particular IP addresses to match the IP addresses with the actual individual subscribers. (7)

   Having obtained the subscriber names and other contact information of those accused of the copyright infringement, the copyright troll then sends out "litigation settlement" demand letters to all of the accused infringers threatening a lawsuit that can result in a judgment of 150,000 dollars. (8) These demand letters typically require the accused to pay a settlement, typically an amount that is just shy of the cost of litigation, in return for a waiver of claims against them. (9) Because the settlement amount requested is typically similar to the cost the defendant would bear to retain an attorney and dispute the allegations, but without the guarantees of a relatively small monetary outlay, and expedient resolution of the matter, many defendants decide to simply settle. (10) Furthermore, in most cases, copyright trolls have no intention of ever actually litigating the case on its merits, as litigation is costly, and it is less expensive to settle with as many defendants as possible, voluntarily dismiss the case, and move on to the next batch of "Doe" defendants. (11)

2. BitTorrent and Peer-to-Peer Technology

   In order to understand many of the problems associated with mass BitTorrent litigation it is first necessary to have a thorough understanding of the technology involved. Once an understanding of the technology is established, the law is applied, and only then will the problems with this particular form of litigation become apparent. Because of the somewhat complex nature of the underlying technology, this Part will attempt to thoroughly educate the reader without becoming overly technical.

   BitTorrent is a popular Internet file sharing protocol, (12) designed to facilitate the transfer of large files as quickly as possible while using the smallest amount of Internet bandwidth. (13) The technology is also commonly referred to as peer-to-peer file sharing. Although BitTorrent is a form of peer-to-peer file transferring, it is actually a distinct protocol. (14) The technology is free to use, (15) and most computer users with a moderate level of technological understanding can set up a machine to begin downloading files using this protocol. Once the computer is ready to use, even a novice user may download nearly any digital file he/she chooses. Using BitTorrent to share media files over the Internet is common because of the ease of use, and relatively low amounts of Internet bandwidth required.

   Unlike other protocols designed to transfer files, BitTorrent maximizes download speeds by breaking up a large file into small pieces called blocks. (16) Users can download blocks from other users attempting to download the same file or others who have completed the download. (17) Because BitTorrent makes downloading large files incredibly fast and easy, especially those files that are popular, many users use the BitTorrent protocol to upload and download music, television programs, movies, software, and various other forms of digital content that is often protected by United States copyright law. (18)

   This section will not attempt to try and examine the moral and ethical implications of the BitTorrent protocol and its use by potential infringers, but rather it will give the reader a working knowledge base from which the reader will be better equipped to comprehend the technological implications on the law as it currently stands. The following section will examine how the BitTorrent protocol works and how it differs from traditional, more simplistic file transfer methods that courts have examined in the past.

   1. Traditional Downloads

      The section will compare and contrast BitTorrent from traditional file transfers. This section will further contain an examination of the traditional paradigm of downloading a file from a website. Knowledge of how downloading works is important due to cases where the United States Supreme Court defined personal jurisdiction in the context of the Internet. The fact patterns of these cases have included files that have either been uploaded (19) or downloaded (20) to a site. Alternatively, cases have also focused on the end users' interactions with the website in question.

      In a "traditional download" a user finds a webpage with a link to the file that the user wants to download. (21) Similar to the file transfers using the BitTorrent protocol, this process has always been as simple as "Googling" whatever it is the user is looking for. Once the desired web page is found, downloading is a simple matter of clicking the link to begin the file transfer. (22)

      In more technical terms, the user's web browser, the client, (23) communicates to the server, (24) which hosts the web page and the file, to begin downloading the file to the user's computer. (25) The relationship between server and client is a hub and spoke configuration; the clients do not communicate with one another and are only aware of the server, regardless of how many clients are attempting to download the same file. The client and the server communicate by way of one of several protocols such as FTP or HTTP. (26) In this classic configuration the speed at which the transfer could be completed is limited by several variables. For instance, the communication protocols handle data in different ways and the amount of users trying to communicate with the server plays a large role as well. (27) As the amount of traffic for a particular server increases, each connection is given less bandwidth. (28) Additionally, the more attempts to download the same file, the more stress that is put on the server, further impeding download speeds. (29)

   2. Peer-to-Peer File Transfers

      Peer-to-peer file transfers are distinct from the traditional centralized server model. First, peer-to-peer transfers utilize a non-web browser client to locate the desired file. (30) Secondly, the files are located on other personal computers instead of a centralized server. (31) The personal computers that are sharing files are called peers because they are computers just like the user's computer as opposed to a server. (32) Typically, users maintain a "shared" folder that is available for other users to download from. Using the peer-to-peer software, users initiate a search for the file a user wants to download. (33) When this search is initiated, the peer-to-peer client connects to other computers that are both connected to the Internet and running the same software. (34) When the peer-to-peer client locates the file in another computer's shared folder, the transfer begins. (35) Conversely, this process also happens in the reverse. Other users of the peer-to-peer software who find desirable files on your hard drive may download a file from you as well.

      The principle issues with these file distribution systems (which BitTorrent solves) are that of limited bandwidth and system resources. (36) For instance, if several users are attempting to download the same file from one computer, the download speed of the users will be limited by the upload speed of the computer they are all trying to download from. The computer uploading the file to multiple...