An Open Letter to Investigative Journalists Covering Intellectual Property Cases Involving Bit Torrent

Dear Journalists —

I have been following Intellectual Property lawsuits since before the Napster era, and paid keen attention to the famous and publicity-suicidal suits by the MPAA and RIAA in the early 2000s, and noted that each suit I came across, specifically involved defendants who were accused of uploading intellectual property. The commonplace journalism term to use for this is “illegal downloading” but none of the suits I checked out involved strictly downloading and focused implicitly on uploading. Would it be possible for one of you enterprising individuals to sit in an actual court hearing that presents arguments and expert witnesses, to determine what degree of investigation is completed in order to determine guilt of the defendant? If I were a juror on one of the cases, I would not let the conviction slip by as easily as it seems many of them actually do.

My questions, which largely center on Bit Torrent cases:

(a) The Bit Torrent sharing program splinters the file in question into thousands upon thousands of fractional portions that are relatively indistinguishable as the “file” they are fractured from. It is loosely akin to stealing the Mona Lisa, and breaking the portrait down into 1-nanometer x 1-nanometer squares, duplicating those squares, then sharing those duplicate squares to random people, gradually, until you’ve shared out all of the thousands and thousands of squares. Does there exist any research to determine what percentage of a file was shared and to which people, or to ascertain at what point enough sharing has occurred that the “file” shared is identifiable as the actual pirated property? That is to say, at what point after having shared 1-nanometer x 1-nanometer squares does it become obvious that the property being shared is the Mona Lisa?

(b) Does research into the accusation exist that determines that the name of the file actually shared is actually what was shared? If I were to create a giant text file that simply were the word “FNORD” over and over, to the point that it were large enough to be interpreted as a video clip by someone who did not bother trying to play it (which is quite significantly large compared to text files) and would then rename it “Harry Potter And The Sorcerer’s Stone.divx” and uploaded the file to filesharing sites, would I be liable for sharing that film, even though the file itself is not even actually the film, but instead just a giant plaintext file repeating FNORD FNORD FNORD for the duration? I am curious as to which level of research is done to ensure the filename downloaded matches the actual, genuine, intellectual property the defendants are accused of uploading.

(c) Bit Torrent also keeps tally of a user’s “ratio” meaning what overall percentage of the original file they have uploaded, if any. If they have a .500 ratio for a pirated film, they have shared half of the movie file (providing the file is even what it claims to be as noted in question “b”). If a person has a ratio of .004 shared from a film (which may be enough to play the first note of the film’s production company logo, providing it can even be distinguished as any section of the film on its own), is this taken into account as if the user has shared the complete film? How is it determined that someone who has shared .004 of a film, has actually shared .004 of that film in particular, and not a giant text file filled with FNORD over and over, or of some other film by another company who doesn’t mind if the film is shared?

Further, even if the user has shared half of a film, there doesn’t seem to me any way to distinguish as to whether the user has shared “an amount of data cumulatively adding to 50% by comparison to the total amount of data within the file” or “half of the file” — that is to say, if I were to pirate a film and only share out the specific amount of data required to show every-other-second’s worth of the opening production company logos, but shared them out to over 9000 people, the total amount of the original I shared would have been 50% by comparison of the original amount of data contained in the file, but would actually only be every other second of only the opening production logos.

Kindly investigate these matters, which, when answered, will quell my doubts about the ways such cases are handled.

One thought on “An Open Letter to Investigative Journalists Covering Intellectual Property Cases Involving Bit Torrent

  1. In the Mona Lisa example, it might be better suggested that a picture of the Mona Lisa were take by camera, rather than the Mona Lisa itself being stolen and broken down — because pirated versions are often cheap imitations of the originals, and the originals still possess their original value.

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