And he and his lawyer should have recognized that much earlier. On the reproduction right, the defendant, Don Bui, is clearly cooked. Of course, one could make a reasonable argument that the fragmented transfers raise issues concerning the distribution right of copyright, but not the reproduction right.
It makes no difference from a copyright perspective whether the infringing copy is created in a single wholesale file transfer using a peer-to-peer protocol or in a swarm of fragmented transfers that are eventually reassembled into the new infringing copy. In both situations, the end user participates in creating a new and unauthorized digital copy of a protected work. It is, however, functionally indistinguishable from the perspective of both the copyright holder and the ultimate consumer of the infringed work. True enough, the process is not identical to the peer-to-peer file sharing program in Grokster. Even as Defendant describes the facts, using BitTorrent technology, he ultimately winds up with 57 unauthorized copies of Plaintiff?s works?copies that did not exist until Defendant himself engaged the technology to create new and unauthorized copies with a swarm of other users. As the judge in the case noted:ĭefendant has some quarrels with the details of how BitTorrent works, but nothing that the Court sees as a fundamental or material issue of fact. In fact, others have tried it in the past, and it doesn’t work. That kind of blaming the middleman is never going to work. Uber copyright troll/porn producer Malibu Media has won an easy lawsuit against a defendant who tried to blame everything on the fact that he used Kickass Torrents to download Malibu Media movies. Unfortunately, it looks like we have another example of this. Even worse: bad defendants create really bad case law that allows copyright trolls to use those cases to shake down lots of other people, many of which probably have much stronger cases. But if you’re caught dead to rights infringing on the works of others, pretending that some magical fantasy world is going to open up in the back of the closet is just silly. Yes, there are all sorts of ridiculous things about many of these cases, and there are all sorts of legal questions raised about them. In both cases we pointed out that they should have settled, and that fighting on when they had no case was a really bad idea. In both cases, they were bad defendants who clearly broke the law and then tried to play cute in defending themselves. We had this with both of the RIAA’s lawsuits against Jammie Thomas and Joel Tenenbaum. It’s one thing to take a stand against questionable copyright trolling, but it’s another thing to be a really bad defendant. Wed, Jul 23rd 2014 07:47am - Mike Masnick
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