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Problems with Bittorrent Litigation in the United States: Personal Jurisdiction, Joinder, Evidentiary Issues, and Why the Dutch Have a Better System

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Problems with Bittorrent Litigation in the United States: Personal Jurisdiction, Joinder, Evidentiary Issues, and Why the Dutch Have a Better System Washington University Global Studies Law Review Volume 13 Issue 1 2014 Problems with BitTorrent Litigation in the United states: Personal Jurisdiction, Joinder, Evidentiary Issues, and Why the Dutch Have a Better System Violeta Solonova Foreman Washington University in St. Louis, School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_globalstudies Part of the Comparative and Foreign Law Commons, and the Intellectual Property Law Commons Recommended Citation Violeta Solonova Foreman, Problems with BitTorrent Litigation in the United states: Personal Jurisdiction, Joinder, Evidentiary Issues, and Why the Dutch Have a Better System, 13 WASH. U. GLOBAL STUD. L. REV. 127 (2014), https://openscholarship.wustl.edu/law_globalstudies/vol13/iss1/8 This Note is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Global Studies Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. PROBLEMS WITH BITTORRENT LITIGATION IN THE UNITED STATES: PERSONAL JURISDICTION, JOINDER, EVIDENTIARY ISSUES, AND WHY THE DUTCH HAVE A BETTER SYSTEM INTRODUCTION In 2011, 23.76% of global internet traffic involved downloading or uploading pirated content, with BitTorrent accounting for an estimated 17.9% of all internet traffic.1 In the United States alone, 17.53% of internet traffic consists of illegal downloading.2 Despite many crackdowns, illegal downloading websites continue to thrive,3 and their users include some of their most avid opponents.4 Initially the Recording Industry Association of America (the “RIAA”) took it upon itself to prosecute individuals who 1. ENVISIONAL LTD., TECHNICAL REPORT: AN ESTIMATE OF INFRINGING USE OF THE INTERNET (2011), available at http://documents.envisional.com/docs/Envisional-Internet_Usage-Jan2011.pdf. These percentages exclude pornography, because its infringing status can be difficult to determine. Id. The four most popular, public, English-language Torrent sites in 2013, with their corresponding internet traffic ranking, are: The Pirate Bay (74), KickassTorrents (116), Torrentz (166), and IsoHunt, (213). Ernesto, Top 10 Most Popular Torrent Sites of 2013, TORRENTFREAK (Jan. 6, 2013), http://torrentfreak.com/top-10-most-popular-torrent-sites-of-2013-130106/. 2. ENVISIONAL LTD., supra note 1. The following countries rank highest for unauthorized music downloads during the first six months of 2012: United States (96.7 million), United Kingdom (43.3 million), Italy (33.2 million), Canada (24 million), Brazil (19.7 million), Australia (19.2 million), Spain (10.3 million), India (9 million), and France (8.4 million). Music Pirates: Top 9 Countries Which Download Music Illegally, HINDUSTAN TIMES (Sept. 18, 2012), http://www.hindustantimes .com/technology/IndustryTrends/Music-pirates-Top-9-countries-which-download-music-illegally/SP- Article1-931996.aspx. 3. Ernesto, BitTorrent Traffic Increases 40% in Half a Year, TORRENTFREAK (Nov. 7, 2012), http://torrentfreak.com/bittorrent-traffic-increases-40-in-half-a-year-121107/. Traffic on BitTorrent “increased by 40% in North America over the past half-year . and [d]uring peak hours BitTorrent is credited for more than a third of all upload traffic” in the US. Id. 4. Indeed, major Hollywood movie studios, record labels, the U.S. Department of Homeland Security, the U.S. Department of Justice, and various European parliaments have been caught downloading movies and software on BitTorrent. Ernesto, Hollywood Studios Caught Pirating Movies on BitTorrent, TORRENTFREAK (Dec. 25, 2012), http://torrentfreak.com/hollywood-studios-caught- pirating-movies-on-bittorrent-121225/; Ernesto, Exposed: BitTorrent Pirates at the DOJ, Parliaments, Record Labels and More, TORRENTFREAK (Dec. 26, 2012), http://torrentfreak.com/exposed-bittorrent- pirates-at-the-doj-parliaments-record-labels-and-more-121226/. The list of unlikely infringers includes: Universal Music Group, Sony Music Entertainment, Warner Music Group, U.S. Department of Justice, U.S. Department of Homeland Security, Army Air Force Exchange Services, U.S. House of Representatives, Paramount Pictures, Warner Bros., Sony Pictures, 20th Century Fox, and Walt Disney, as well as national parliaments such as the “German Bundestag, the Dutch Tweede Kamer, the Spanish Cortes Generales, and also the European Parliament itself.” Id. 127 Washington University Open Scholarship 128 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 13:127 downloaded copyrighted material,5 but as Christopher Swartout explains, the RIAA quickly learned that such cases are “expensive to bring, expensive to litigate, difficult to collect on, generate bad press, and have not produced a demonstrable deterrent effect.”6 Today, infringement cases are largely brought by copyright trolls who, as will be discussed further in Part VI, variously abuse the judicial system in hopes of extorting a quick settlement from a potential BitTorrent user.7 Indeed, many cases brought by copyright trolls are misjoined, have defective personal jurisdiction, and have insufficient evidence of infringement.8 In addition to the legal issues surrounding BitTorrent cases, there is the general question of harm. Does file sharing harm artists? If the mission of the RIAA is to protect artists,9 and studies show that artists are better off financially with the advent of BitTorrent,10 from what is the RIAA protecting artists? Some nations, such as the Netherlands, have tackled this question by allowing the downloading of copyrighted material for personal use and have imposed copyright levies to offset any losses to the affected industries.11 In this Note, I argue that the current legal framework in the United States concerning BitTorrent suits is not only subject to heavy abuse by copyright trolls, but the harm these suits seek to curtail might not in fact exist. First, I will explain how BitTorrent functions, and then dispel some misconceptions about the effects of file sharing on artists. In the sections that follow, I will discuss failed attempts to block or otherwise eliminate BitTorrent and explain the copyright law in the Netherlands as it relates to file sharing. I focus on the Netherlands in particular because it is an 5. RICHARD RAYSMAN & PETER BROWN, COMPUTER LAW: DRAFTING AND NEGOTIATING FORMS AND AGREEMENTS § 5.12 (2013). 6. Christopher M. Swartout, Toward a Regulatory Model of Internet Intermediary Liability: File-Sharing and Copyright Enforcement, 31 NW. J. INT’L L. & BUS. 499, 508–09 (2011). 7. For an explanation as to why an IP address only reveals a potential, rather than a definite, infringer, see infra note 131. 8. See infra Part V. 9. Who We Are, RECORDING INDUSTRY ASSOCIATION OF AMERICA, http://www.riaa.com/ aboutus.php?content_selector=about-who-we-are-riaa (last visited Jan. 15, 2013). 10. See Richard Bjerkøe & Anders Sørbo, The Norwegian Music Industry in the Age of Digitalization (2010) (unpublished master’s thesis, BI Norwegian School of Management) (on file with author, available at http://www.espen.com/thesis-bjerkoe-sorbo.pdf). From the advent of Napster in 1999 to 2009, “[o]n a per capita basis the artists have gone from NOK 80,000 in annual income from music to NOK 133,000 which is a 66% increase.” Id. at iii. A Swedish study found that “total artist revenues have increased in Sweden by 25.7% since 2000.” DAVID JOHANNSSON & MARKUS LARSSON, THE SWEDISH MUSIC INDUSTRY IN GRAPHS—ECONOMIC DEVELOPMENT REPORT 2000– 2008 1, 6 (2009), available at http://ec.europa.eu/avpolicy/docs/other_actions/col_2009/pub/kth_ annex.pdf. See infra Part II. 11. See infra Part V. https://openscholarship.wustl.edu/law_globalstudies/vol13/iss1/8 2014] PROBLEMS WITH BITTORRENT LITIGATION 129 example of a nation that has successfully dealt with technological change and the advent of the BitTorrent protocol. I will then discuss problems with joinder, personal jurisdiction, and snapshot evidence issues common to BitTorrent litigation, as well as the abusive practices of copyright trolls. I conclude that copyright levies, a solution that has been implemented in many countries, or an advertisement revenue sharing scheme should be considered by the United States. I. THE BITTORRENT PROTOCOL EXPLAINED BitTorrent is a peer-to-peer12 (“P2P”) file sharing protocol13 that allows users in different geographic locations to share files. When a user uploads a file into the BitTorrent protocol, the file is broken down into small pieces called chunks, which are composed of ones and zeros, and assigned a cryptographic hash,14 which serves as the piece’s identifying information.15 The file is also assigned a torrent16 file, which contains metadata about the file to be shared, such as how many chunks exist for this file, the name of each chunk, and the order the chunks should take for the file to be recreated.17 The torrent file also contains information about the tracker, which is the computer that coordinates the file distribution by helping participants find each other and form distribution groups known as “swarms.” The torrent file does not contain the content of a work to be distributed. Users who wish to download data must first download the torrent file assigned to it, and using the tracker information provided in the 12. “In a P2P network, the ‘peers’ are computer systems which are connected to each other via the Internet. Files can be shared directly between systems on the
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