The litigation is taking place on an unprecedented scale. During its campaign against file-sharers from 2003 to 2008, the Recording Industry Association of America (RIAA) sued approximately 35,000 individuals. In comparison, a whopping 94,000 John Does have been sued in just the first seven months of 2011. Tellingly, not a single case has ever been decided by a jury.

"These lawsuits are not geared toward going to trial," says Robert Cashman, a Houston attorney who defends accused copyright infringers. "They're geared as extortion schemes to pull out thousands of dollars for every accused downloader. It's not illegal, it's just wrong. It's an abuse of the legal process."

It's the sequel to the music industry's war on digital pirates, and the margins of Hollywood are exacting revenge like some twisted Sweeney Todd. Most of the accused are likely guilty, and the attorneys going after them say the cyber-thieves are simply getting what's coming to them. But, in a turn that's more tragic than comic, many innocent Internet surfers are serving as legal cannon fodder while moviemakers and their lawyers line their pockets with plunder.


Chris Whetzel

Admittedly, John Doe 2,057 knows a thing or two about BitTorrent. Working with computers, it's hard not to. The latest in peer-to-peer, or "P2P," file-sharing, Torrents, as they are known in techie vernacular, are staggeringly popular. With more than 100 million monthly users — more than Hulu and Netflix combined — Torrent file transfers account for 20 to 40 percent of all Internet traffic at any given time, according to BitTorrent Inc., the San Francisco company that developed the technology.

"I have friends at work who download," Doe confesses. "They said they have Netflix, but some of the movies they want aren't streaming — they're only on DVD. With downloads, they said, you can get movies that aren't even in the theaters yet."

For better or worse, BitTorrent has made it easy to swap a DVD-quality feature film or a musician's entire discography. Created in 2002 by a San Francisco computer programmer named Bram Cohen, the technology is much different than Napster and its descendants, LimeWire and Kazaa. With these earlier applications, files were transferred directly from one person's hard drive to another on a centralized network. BitTorrent, on the other hand, divides the workload among dozens of users, each of whom shares fragments of the file that are combined like puzzle pieces when the download is completed. In essence, it creates a unique network, known as a "swarm," dedicated to sharing each specific file. The more people exchanging data, the faster the download happens.

As the attorneys for Imperial Enterprises put it in Doe 2,057's case, BitTorrent causes "rapid viral spreading" of their copyrighted porn. But Shahi Ghanem, executive vice president of marketing for BitTorrent, is quick to point out that the technology is merely a file-sharing protocol, not a cohesive network like its P2P ancestors. "We at BitTorrent have as much to do with [piracy] as Google or Comcast, the companies providing the Web browser and Internet connection," he says. "We don't condone or support any form of piracy or copyright infringement."

The piracy is made possible by websites that host links to BitTorrent "trackers," which direct users to people sharing the copyrighted content they hope to acquire. The Sweden-based Pirate Bay, to name one well-known example, is a repository for innumerable Torrent trackers, which provide access to movies, music, books, software and more. These trackers, as their name suggests, keep track of the IP addresses participating in the swarm.

To make their sprawling cases against thousands of John Does, the attorneys who represent the scorned movie producers connect to a tracker and identify as many IP addresses as possible, along with the date and time they joined the swarm. Then comes the tricky part: convincing a federal judge that all those BitTorrent users are in cahoots.

"People come and go from the swarm," explains Chris Ridder, a copyright attorney and a fellow at Stanford Law School's Center for Internet and Society. "They pop in and share for a while, then they're done sharing, and they leave. It's not like everybody got together in a smoke-filled room and decided to rob a bank. It's considerably different."

The pirate chasers in Doe 2,057's case contend that "because of the nature of the swarm downloads...every infringer is simultaneously stealing copyrighted material." Hence, they should be considered co-conspirators who can be sued in any court in the country where a single download took place.

"Thousands of people are lumped together in one lawsuit just because, basically, a few lawyers have decided they can be," says Rebecca Jeschke, a spokeswoman for the EFF. "They're suing where their firms are, where it's easiest for them — not where the alleged infringement occurred. It can make it really hard for people to defend themselves."

Major Hollywood studios, however, have yet to file a single John Doe lawsuit. The RIAA spent millions on their piracy crusade and suffered a series of public-relations meltdowns, such as the time they targeted a dead woman. (Her name was Gertrude Walton, she died at age 83, and her daughter told reporters that the dearly departed didn't even own a computer.) Meanwhile, the two largest John Doe suits, with a combined 48,905 defendants, were filed against alleged pirates of The Hurt Locker and Sylvester Stallone's The Expendables, both owned by independent studios.

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3 comments
G-Lo
G-Lo

I don't know where you get your facts but "The Expendables" did NOT under perform at the box office. It had a Domestic Total Gross of $103,068,524 and a foreign Total of $171,401,870 to combine for a worldwide Total of $274,470,394. With a budget of $80 million, I don't know how you come to the conclusion that this was under performing. I'd say your article as a whole was an under performance and a waste of time.

Totornot
Totornot

Was this comment written by Sylvester Stallone? This was a good article with lots of good information. It was thorough and he talked to a lot of people. Just because he got one thing a little off (he would have been right if he said the movie sucks) this is a terrible article?

Epmgaw
Epmgaw

Yeah, some of the John Does are illegally downloading movies, and many are not. Know someone who received on of these letters for a movie no one has ever heard of, that was supposedly downloaded at a business address in the middle of the night when no one was there and the computer was off!

 
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