Is there a technological reason that the RIAA and MPAA only go after tracker sites and not people downloading torrents?
April 10, 2010 8:08 PM   Subscribe

With the recent legal action against Isohunt, I would like to understand the tech and privacy of torrents better. Is there a technological reason that the RIAA and MPAA only go after tracker sites and not people downloading torrents?

Way back in 2007 someone asked about the safety of downloading torrents. It was answered in that thread that it isn't.

My feeble knowledge of news in the 3 years since that metafilter thread is that no one has been prosecuted for torrent use. Rather, the torrent sites that sell advertising are targeted.

For the RIAA and MPAA this is like bailing a ship out with a spoon. Autofill in a google search window brings up Pirate Bay after the three first letters. And as Isohunt has proven with their "lite" version, you can bring up essentially the same results with a Google search.

Why have there been no prosecutions of people downloading torrents?
posted by frodoxiii to Computers & Internet (8 answers total) 6 users marked this as a favorite

*so many.
posted by null terminated at 8:20 PM on April 10, 2010

Response by poster: Oh. Huh. Thanks. Like I said... it was my feeble memory of the news. I'd never heard about it.
posted by frodoxiii at 8:41 PM on April 10, 2010

Response by poster: Well... hopefully my ignorance will help others.

Check out this lifehacker article on improving your privacy when using torrents. Also, check out their disclaimer that they can't guarantee that you won't be discovered.
posted by frodoxiii at 8:59 PM on April 10, 2010 [1 favorite]

The cases null terminated is referring to are against John Does who are not accused of downloading (and by a freelance mercenary law firm, at that), they're accused of "making available," i.e. being a source peer.

To my knowledge there have been no cases against people for downloading. The popular reasoning is that since BitTorrent does not allow a node to see what other nodes are doing, the investigating agency would need to provide copyrighted content themselves in order to see who downloads it. The problem is that this agency would have to be authorized to make the file(s) available by the rightsholder and so would constitute legal distribution. So far no rightsholder has attempted to go down this path -- the only investigators who have bubbled to the surface in any way with regard to this, MediaSentry, have been accused of operating without a private investigator's license and had their relationship with the RIAA terminated thereafter -- and so they've focussed on "making available."

Tracker sites have simply been accused of making available information guiding users to copyright infringing material, and so far some courts have agreed. This is low-hanging fruit compared to going after actual downloaders.
posted by rhizome at 1:25 AM on April 11, 2010 [1 favorite]

The RIAA has officially stopped suing actual downloaders. Now they just work with ISPs to get people's internet slowed/shut down if the ISP thinks they are file sharing. They are suing uploaders, which would happen to be the same people as the downloaders when it's something like bittorrent, but it doesn't seem like they're suing many of them either. Also, suing downloaders is often a waste of time because they don't have any money and the cost of suing them isn't worth the non-payoff, other than making an example of them, I guess.
posted by fructose at 8:19 AM on April 11, 2010

The 20,000 lawsuits news is a little misleading, I think, because it represents a very narrow slice of IP right owners - the MPAA/RIAA are not officially behind it; rather, it's what looks like a small group of independent film producers working with a for-profit company that specializes in obtaining settlements. This has been tried several times in Europe and has generated awful PR (and has not been effective, by most accounts), so I don't think it's going to catch on widely in the U.S.

I don't think the issue of whether downloading/uploading torrents is copyright infringement has actually been litigated in U.S., but I doubt that any court would find that it is legal. Columbia v. Fung, a very recent case, dealt with secondary liability for infringement by a defendant who ran a BitTorrent search engine web site, and as part of the analysis, found that the users committed direct infringement (see pp. 17-22). The analysis is, I think, sloppy in that the court basically says "Well, this *really* looks like copyright infringement, so we'll say that it is" without going through the hard work of grounding the analysis in doctrine. All the same, I think this is the kind of approach courts will tend to take in these kinds of cases - copyright infringement cases, and especially P2P cases, really seem too often to turn into realpolitik decisions where the outcome is dictated by practical thinking and consequences rather than strict adherence to the doctrine.

So in my opinion, at least, IP rights owners could go after individual downloaders. The reason they don't do this is just all transaction costs. It's much easier and cost-effective to go after someone like the defendant in Fung and try and cut off access at the source than monitor for individual IPs, get subpoenas and get their real names, deal with issues of service of process and personal jurisdiction, try and collect judgments, etc.
posted by Pontius Pilate at 11:09 AM on April 11, 2010

The main reason the copyright industry are currently going after distribution sites (thepiratebay, mininova and newzbin sping to mind as recent losers of court verdicts) is simply because it is more cost effective.

There are several outstanding cases from the big 4 (Universal, Sony, Warner & EMI) over music still rattling around the appeal courts, such as Jamie Thomas-Rasset, though the RIAA have supposedly stopped individual suits. The BPI (the same companies, but the British wing) never went after infringers directly, but after admins of torrent sites, such as OiNK - though he was recently found not guilty, the site is down for good, and 4 members plead guilty to copyright infringement offences and got community service.

On the other hand, the move studios and increasingly the game studios and porn producers are going after uploaders directly; Davenport Lyons and ACS:Law has become fairly famous in the UK for sending settlement offer letters to people accused of uploading via torrents, with some fairly high profile mistakes. They do claim they've had 5 successful judgements in court, though they all appear to be default ones where the defendant didn't turn up.

Now we have the Digital Economy Bill rammed through just before the end of parliament, we'll see *much* more of this in the UK - it makes the owner of the connection responsible for all alleged infringing activity happening through it, (whereas before they had to identify the actual infringer) and the ISP too if they don't cough up the subscriber details sharpish, no going to court necessary. Initially there's going to be a warning letter campaign, but if that doesn't succeed there's a mechanism for account slow downs or suspensions to be setup within 12 months - at which point you'll likely see many public wifi connections shut down, and we'll likely have a whole bunch of non-techie people with unencrypted or weakly encrypted wifi (BT *still* ship routers with WEP only by default) being cut off.
posted by ArkhanJG at 12:51 PM on April 11, 2010

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