Evidence Against BitTorrent Users Slammed In Court
The U.S. Copyright Group has sued more than 100,000 alleged BitTorrent users since last year. But, a recent filing in a U.S. class action lawsuit filed against the group shows that these cases may be built on shoddy evidence. It cites a German court ruling where the company responsible for providing the evidence could not prove that defendants actually shared any files. In addition there was evidence of a pirate honeypot.
A few months ago the U.S. Copyright Group (USCG), who pioneered the mass-BitTorrent lawsuits in the United States, were themselves sued for fraud, abuse and extortion.
The class-action lawsuit targets the movie studio Achte/Neunte, their lawyers and the tracking company who went after thousands of people who allegedly downloaded and shared the movie ‘Far Cry’ on BitTorrent.
Through the lawsuit BitTorrent users, spearheaded by Dmitriy Shirokov, are seeking relief based on 25 counts including extortion, fraudulent omissions, mail fraud, wire fraud, computer fraud and abuse, racketeering, fraud upon the court, abuse of process, fraud on the Copyright Office, copyright misuse, unjust enrichment and consumer protection violations.
The case is ongoing in the U.S. District Court of Massachusetts and thus far not much progress has been booked by either of the parties involved. However, previously unreported filings reveal that the evidence the copyright holders claim to have against the alleged file-sharers may be even weaker than expected.
The court filing in question shows how USCG is basically a front for the partnership between the German based pirate tracking outfit GuardaLey and the law firm Dunlap, Grubb and Weaver.
Unlike the image often portrayed in the media, the plaintiffs claim that GuardaLey is the main motivating power behind the lawsuits. One email brought in as evidence clearly shows the company actively approaching law firms to work with them and plugging their scheme to various copyright holders.
It is clear that the evidence gatherers are by no means an objective party. On the contrary, it can be argued that this German based company is the prime reason why more than 200,000 people have been sued in the United States. And if it couldn’t get any worse, the evidence GuardaLey actually collects against the BitTorrent users may be totally useless.
The documents filed by the attorneys of the plaintiffs, law firm Booth Sweet, reveal that GuardaLey’s evidence gathering techniques are far from optimal.
The attorneys refer to a German court case where GuardaLey was sued by one of the law firms (Baumgarten Brandt) they partnered with. The law firm filed suit after it discovered that GuardaLey was aware of several technological flaws concerning their evidence, but chose not to disclose them. The law firm won the case.
Based on an independent review the German judge concluded that GuardaLey’s evidence gathering technology does not check whether the accused actually downloaded (or uploaded) content. A major flaw that was previously exposed by the University of Washington, where copyright holders accused a printer of pirating.
The findings are especially troubling because some major BitTorrent trackers insert random IP-addresses into BitTorrent swarms. These IP-addresses are not actually trying to download any files, but they may be accused of doing so based on GuardaLey’s evidence.
TorrentFreak contacted attorney Jason Sweet of Booth Sweet who believes that GuardaLey has continued to use the same technology in all of its U.S. based cases.
“That’s what the lawsuit in Germany was about. That Guardaley knew of the flaw, but continued using it to identify infringers. We haven’t seen anything that would indicate they’ve corrected the problem or are using different methods. I believe they’ve even made statements to the contrary – that they use the same tech for all of their cases,” attorney Jason Sweet told TorrentFreak.
This means that among the more than 100,000 BitTorrent users who were sued by USCG in the U.S., many are likely to be wrongfully accused.
“The real issue is that innocent people are getting swept up along with the infringers, and no effort is being made to sort them out. That’s because despite Achte’s protestations, this case was designed to do one thing only – generate revenue. And for them an innocent person’s money is just as good as a guilty person’s,” Sweet told us.
And there is more. Documents filed at the German court further suggest that GuardaLey might also operate pirate honeypots.
“GuardaLey operates a ‘honeypot’—that is they represent “by means of a falsified bit field, that it was always in possession of 50% of the file being sought.” If the actual file is being offered than an implied license is operative. If it is a garbage file, than no infringement occurs. In either instance, IP addresses are being identified that did not infringe,” the plaintiffs assert.
The above is a very worrying discovery that may become a pivotal issue in the ongoing lawsuits in the U.S. Could it be that the evidence used by GuardaLey in the cases against the thousands of BitTorrent users in America is just as weak?
Unfortunately, in these pay-up-or-else schemes the evidence never gets as far as a proper review because the copyright holders are only after settlements. However, the class-action lawsuit against USCG and partners could get to the bottom of this.
If the evidence turns out to be as weak as described above, it would probably mean the end of the “extortion-like” practices.
