On this Veteran’s Day I decided to rehash of a previous article with the addition of the wonderful declaration Mr. Delvan Neville provided in a recent ILND Copyright Troll case (1:14-cv-01142). NOTE: Following the submission of the Motion to Sever (Motion_Sever_Doc_17_01142(IN)) and Mr. Neville’s Declaration (Decl_Neville_Doc_17-1_01142(IN)), Troll/Plaintiff dismissed (Doe_10_Dismissed_01142(IN)) the Doe. With it dismissed, the Troll doesn’t have to address the issue. We can only now hope the judge decides to bring the issue up and force the Troll to respond. However this is probably unlikely knowing the Federal courts. Sad….
For the Troll/Plaintiffs, joining together of multiple Does/IP address is simple and cost-effective way to run their cases. Joinder rules allow a Plaintiff to group defendants together when there is justification based on a common action in which they ALL took part. The problem is the Copyright Trolls are abusing the joinder rules to save money. They file their cases with threadbare claims of proper joinder and technical explanations that most courts are not going to truly understand. A simple understanding and a little analysis of how BT works clearly indicates that for a majority of these cases, joinder cannot be justified.
Since BT Copyright Trolling started in 2010, we have made advances and educated various courts on the “game” the Trolls are playing. Malibu Media LLC has since stopped filing multi-Doe cases in favor of single Doe cases, as well as being a bit more selective as to who they file against. Today’s multi-Doe cases follow the general rule of only grouping Does together which shared the same hash file (movie) via BT AND the IP address resolved back to a location within the jurisdiction of the court where the cases were filed. Recently I have also noted some cases have had a shorter time-period between the first and last Doe allegedly sharing Plaintiff’s content via BT. I believe this is a Troll attempt to preclude any motions claiming the sharing of ALL Does could not have occurred over the entire period in the complaint. A court may have an easier time granting early discovery to a case with only a Two-week period of sharing, verses a two-month period.
In 2014, multi-Doe BT copyright infringement law suits were filed in the following jurisdictions: ILND, CO, HI, MIWD, MIED,WAWD, INSD, INND, TXSD, WIED, WIWD, and OHSD. The jurisdictions that are a particular Troll favorite are Colorado and the IL Northern District. These jurisdictions do not generally question the Troll’s justification for joinder and basically rubber stamp the Early Discovery template filed with the court.
Recently in a IN case (1:14-cv-01142), attorney Gabriel Quearry filed a motion to sever his client (Doe #10). His main justification for severance was a declaration from Delvan Neville. I wrote about this Motion/Declaration briefly in a previous article.
Mr. Neville’s analysis and declaration was based on two periods of time (“soaks”) in which he monitored BT swarms consisting of IPP International (IPP)monitored swarms, Crystal Bay Corporation (CBC)monitored swarms, or legal content swarm. The first soak was for 24 hours/1 day and consisted of 17 monitored swarms. The second soak was for two weeks and consisted 7 monitored swarms.
Mr. Neville found that for the one day analysis, the BT swarm members were only a “leecher” for .996 hours on average (let’s say 1 hour/60 minutes). Once a “seeder,” the BT swarm members only stayed attached to the swarm for 3.117 hours on average (let’s say 3.2 hours/192 minutes). These numbers also came with a variance of 3 times the average. So let’s say for this one-day analysis, the range of time a BT swarm member is a leecher is .1 hour (6 minutes) – 3 hours. Then the range of time the BT client was a seeder is .1 hours (6 minutes) – 9.6 hours. Note: I used the “.1 hour/6min”, as some people may stop their participation in a swarm at the earliest moment of leeching or seeding.
For the two-week analysis, Mr. Neville found BT swarm members were only a leecher for .603 hours on average (let’s say .7 hours/42 minutes) and a seeder for 2.042 hours on average (let’s say 2.1 hours/126 minutes). These numbers also came with a variance of 6 times the average. The range time of a leecher is .1 hour (6 minutes) – 4.2 hours/252 minutes). The range time of a seeder is .1 hour (6 minutes) – 12.6 hours/756 minutes.
I would also like everyone to note that the BT swarm members were NOT limited to a geographical location or single jurisdiction (like these cases). This means the swarm members were world-wide and not limited to one particular jurisdiction. This is important to note, as the current mass-Doe BT copyright troll cases are all filtered (by the Trolls) to a single court jurisdiction. Mr. Neville’s analysis was on UNFILTERED SWARMS of BT clients.
These results show that mass-joinder BitTorrent litigation is not based upon any real likelihood that the joined peers have engaged in any series of transactions with each other. Even if one were to assume that all 20 peers named in this suit were at the high end of the distribution of connectivity (3.247%), the likelihood that there is any series of peer-to-peer connections that could link all 20 peers together in the same series of transactions is 0.01%6.
Footnote – This probability was calculated on the basis that any arrangement of communication that links each peer in this suit to at least one other peer would be sufficient. The probability is even more unlikely if there must be a contiguous series of links connecting all 20 peers through each other.
As the range of “Hit Dates” in this case range similarly to those from the second soak (weeks, not a single day), the connectivity is almost certainly closer to the 0.05% average seen in the second soak, and thus the likelihood that there is any series of transactions that could link these 20 peers together in some fashion is 0.00000000000000000000000000000000000001% or a 1 in 10 duodecillion chance.
It is also worthy to note that Mr. Neville declaration was based on his analysis of Peer Exchange (PEX), an extension of the BT protocol, in which peers in a swarm will notify each other of the IPs of all other peers they are currently connected to within the same swarm, and subsequently update in later messages when any of those peers have disconnected.
Mr. Neville determined that for every communication he had with IPP/CBC IP address, PEX was NOT in use by the Trolls. This shows there is NO way the Trolls could justify joinder even IF it was appropriate (IT ISN’T).
As every communication between an EUPSC2k node and IPP/CBC demonstrate that they do not support PEX messages, even if the 20 named peers in this case did engage in the same series of transactions together, Plaintiff will not be able to demonstrate that this occurred.
So what does this mean? It means Troll/Plaintiff is very likely to dismiss a Doe/Attorney who submits this declaration in support of severance. The Trolls do NOT what to take a chance that a court could agree and sever all the Does. Until a court decides to address this issue seriously Troll/Plaintiff is going to continue to use IPP/CBC/APMC justification to obtain ISP subscriber information.
Now Troll/Plaintiff could dismiss and then refile against any Does who file such a motion/declaration. The advantage of refiling is there is no long a joinder issue to contend with. This was exactly what Malibu Media/X-Art did when they moved to single Doe cases. Still, the Trolls are not going to want to risk going up against a defendant who doesn’t appear to be afraid of them finding anything on his computer OR open source searches disclosing a possible links to the “other” files they recorded as being shared via BT/Defendants IP address. The second draw-back is if Troll/Plaintiff dismisses the Defendant a second time, it is considered adjudicated on its merits and the Defendant is the prevailing party – time for attorney fees and costs!
The Trolls are going to be forced to address this issue in the future, that or stop filing mass-Doe cases like Malibu Media LLC did. The declaration will not stop BT copyright troll law suits, but it will put a dent in their business model and profitability. As all of the mass Doe cases this year are non-porn, they do not have as strong a social stigma and embarrassment. So where Malibu Media LLC may have Does more willing to avoid public disclosure of their porn habits/tastes, simply downloading Dallas Buyers Club may only subject a person to ridicule for bad taste (my opinion).
DieTrollDie 🙂 “Honor to the soldier and sailor everywhere, who bravely bears his country’s cause. Honor, also, to the citizen who cares for his brother in the field and serves, as he best can, the same cause.” [Abraham Lincoln]