ARTICLE: ELECTRONIC EVIDENCE IN TORRENT COPYRIGHT By Thomas M. Dunlap and CASES Nicholas A. Kurtz Introduction distribute copies of the registered copyrighted work.1 This article explores the methodology behind The Copyright Act further provides that anyone who obtaining electronic evidence of peer-to-peer users violates any of the exclusive rights of the copyright 2 and the use of that evidence in current copyright owner is an infringer of the copyright. infringement actions in United States Federal Courts. Pursuant to the Copyright Act, a plaintiff may elect Over the last year and a half, a number of lawsuits to recover statutory damages instead of actual have been filed on behalf of film copyright holders damages or the infringer’s profits. 17 U.S.C. § 504(c) seeking to enforce their rights against users of peer- provides: “the copyright owner may elect, at any time to-peer (P2P) torrent-type technologies used to before final judgment is rendered, to recover, instead unlawfully download and distribute films. of actual damages and profits, an award of statutory At the time of filing their complaints, the plaintiffs damages for all infringements involved in the action, have only been able to identify the Doe defendants by with respect to any one work ... in a sum of not less their internet Protocol (IP) address, the file hash, file than $750 or more than $30,000 as the court title, and the date and time of the alleged considers just.” Section 504(c) further provides that infringement. The only way that the plaintiffs can where an infringement is committed willfully, a court determine the defendants’ actual names is by has the discretion to increase the award of statutory 3 obtaining the information from the internet Service damages to $150,000. Providers (ISPs) to which the defendants subscribe Pursuant to the Copyright Act, a plaintiff may also and from which the defendants obtain internet recover its costs and attorneys’ fees. 17 U.S.C. § 505 access, as this information is readily available to the provides: “[i]n any civil action under this title, the ISPs from documents and data they keep in the court in its discretion may allow the recovery of full regular course of business. costs by or against any party other than the United Part II of this article will explore the basic States or an officer thereof. Except as otherwise methodology behind the investigation of torrent users provided by this title, the court may also award a that infringe the plaintiffs’ copyrights. Part III will reasonable attorney’s fee to the prevailing party as explore the process of obtaining court orders to part of the costs.” subpoena the ISPs for the defendants’ identifying As alleged in the plaintiffs’ complaints in the various information. Finally, Part IV will explore the P2P piracy cases, the Doe defendants, without identification and subpoena production process of the authorization, used an on-line media distribution various ISPs. system to download the plaintiffs’ copyrighted motion pictures and distributed them to other users on the The investigation and identification of IP P2P network. addresses infringing copyrights Overview of the P2P infringing activity Basic U.S. copyright law The internet is a vast collection of interconnected The Copyright Act provides that the owner of a computers and computer networks that communicate copyright has the exclusive rights to reproduce and to with each other. It allows hundreds of millions of 1 17 U.S.C. § 506(1), (3). 2 17 U.S.C. § 501(a). 3 17 U.S.C. § 504(c)(2). © Pario Communications Limited, 2011 Digital Evidence and Electronic Signature Law Review, Vol 8 171 ELECTRONIC EVIDENCE IN TORRENT COPYRIGHT CASES people around the world to freely and easily exchange share a file using a P2P network. This is called ideas and information, including academic research, “seeding.” Other users (peers) on the network literary works, financial data, music, audiovisual connect to the seeder to download. As additional works, graphics, and an unending and ever-changing peers request the same file, each additional user array of other data. Unfortunately, the internet also becomes a part of the network (or “swarm”) from has afforded opportunities for the wide-scale where the file can be downloaded. However, unlike a infringement of copyrighted motion pictures. Once a traditional peer-to-peer network, each new file motion picture has been transformed into an downloader is receiving a different piece of the data unsecured digital format, it can be copied further and from each user who has already downloaded that rapidly distributed an unlimited number of times over piece of data, all of which pieced together comprise the internet at little or no cost to the distributor, the whole. This means that every “node” or peer user without significant degradation in picture or sound who has a copy of the infringing copyrighted material quality. on a P2P network – or even a portion of a copy – can To copy and distribute copyrighted motion pictures also be a source of download for that infringing file, over the internet, many individuals use on-line media potentially both copying and distributing the distribution systems or commonly called P2P infringing work simultaneously. networks. P2P networks, at least in their most This distributed nature of P2P leads to a rapid viral common form, are computer systems that enable spreading of a file throughout peer users. As more internet users to (1) make files (including motion peers join the swarm, the likelihood of a successful pictures) stored on each user’s computer available for download increases. Because of the nature of a P2P copying by other users; (2) search for files stored on protocol, every seed peer who has downloaded a file other users’ computers; and (3) transfer exact copies prior to the time a subsequent peer downloads the of files from one computer to another via the internet. same file is automatically a possible source for the At any given moment and depending on the subsequent peer, providing any one of those seed particular P2P network involved, anywhere from peers is on-line at the time the subsequent peer thousands to millions of people, either across the downloads a file. country or around the world, unlawfully use the P2P Additionally, it has been shown that the use of the network to connect to one another’s computers to torrent platform is primarily for the infringement of upload (distribute) or download (copy) copyrighted copyrights. As noted in a January 2010 study by a material. The P2P systems represent a “viral” Princeton University Senior Sauhard Sahi,4 distribution of digital files: each user of the system approximately 99 per cent of all files on BitTorrent who copies a digital file from another user can then were infringing copyrights (10 of the 1021 files were distribute the file to other users and so on, so that found to be likely non-infringing), with 100 per cent of copies of an infringing file can be distributed to movie and television files found to be infringed millions of people worldwide at breathtaking speed. content. A study from the University of Ballarat in Further, a person who uses a P2P network is free to Australia found that no legal samples of either use any alias (or “network name”) whatsoever, movies, music or television shows in their sample of without revealing his or her true identity to other 1,000 torrents on the BitTorrent network: users. Thus, while a copyright holder may have observed infringement occurring on the internet, it Through our investigations, we found that 43.3% of cannot know the true identities of those individuals BitTorrent torrents are movies, 29.1% are TV shows who are committing the infringement on a P2P and 16.5% are music. Using our sample of trackers network. we discovered that a total of 117 million current Additionally, these torrent P2P methodologies make seeds are available across more than one million even small computers with low bandwidth capable of torrents, based on the number of seeders available participating in large data transfers across a P2P for the files. The top two files were being seeded network. The initial file provider intentionally elects to more than one million times each and the third 4 Under the supervision of Princeton Professor Ed ‘Technical report: An Estimate of Infringing Use of Felten; a summary is available at https://freedom- the Internet’ (January 2011, Version 1.8, Envisional to-tinker.com/blog/felten/census-files-available- Ltd, Cambridge, UK), available at bittorrent; for a more recent study that supports http://documents.envisional.com/docs/Envisional- the work of professor Felten and Sauhard Sahi, see Internet_Usage-Jan2011.pdf. 172 Digital Evidence and Electronic Signature Law Review, Vol 8 © Pario Communications Limited, 2011 ELECTRONIC EVIDENCE IN TORRENT COPYRIGHT CASES more than 500,000 times. In summary, our results video content, but that is attached to or contained indicate that 89% of all torrents from our sample within the digital file and helps identify the content of are confirmed to be infringing copyright, both by the the file. The companies then create evidence logs for number of files and total number of current seeders. each user that store all this information in a database. Of the torrents in the top three categories (Movies, An IP address is, in combination with the date, a Music and TV shows), there were no legal torrents unique numerical identifier that is automatically in the sample.5 assigned to a user by its ISP each time a user logs on to or obtains access to the network. Each time a A more recent study in January of 2011 found that subscriber logs on, he or she may be assigned a approximately 23.8% of all global internet traffic is different (or “dynamic”) IP address unless the user infringing on copyrighted content with BitTorrent obtains from his/her ISP a static IP address.