First Time Videos, LLC v. Does 1-76
Filing
5
MOTION by Plaintiff First Time Videos, LLC to expedite discovery (Attachments: # 1 Memorandum of Law in Support of Plaintiff's Motion for Leave to take Discovery, # 2 Declaration of Peter Hansmeier)(Steele, John)
EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FIRST TIME VIDEOS, LLC,
CASE NO. 11-cv-3831
Plaintiff,
Judge: Hon. John F. Grady
v.
Magistrate Judge: Hon. Michael T. Mason
DOES 1 – 76,
Defendants.
DECLARATION OF PETER HANSMEIER IN SUPPORT OF EX PARTE MOTION
FOR LEAVE TO TAKE DISCOVERY PRIOR TO RULE 26(f) CONFERENCE
I, Peter Hansmeier, declare under penalty of perjury as true and correct that:
1.
I am a technician at Media Copyright Group, LLC (“MCG”). On behalf of its
clients, MCG monitors and documents Internet-based piracy of our clients’ copyrighted creative
works. I submit this declaration in support of Plaintiff’s Ex Parte Motion for Leave to Take
Discovery Prior to Rule 26(f) Conference.
2.
The Plaintiff in this action is the exclusive rights holder of the right to distribute
and reproduce certain copyrighted creative works via the BitTorrent protocol. We have been
engaged to collect and document evidence of the unauthorized reproduction and distribution of
the copyrighted creative works, including the works referenced in Exhibit A to the Complaint,
within the United States of America. As a technician at MCG, I am responsible for
implementing day-to-day piracy monitoring.
3.
This affidavit is based on my personal knowledge, and if called upon to do so I
would be prepared to testify as to its truth and accuracy.
2
Background
4.
The Internet is a global network of devices and networks that are connected to one
another via a worldwide communications infrastructure. As with any tool, the Internet is put to
uses both good and bad.
5.
One undesirable use of the Internet is content piracy. Over the past decade, the
ease of creating exact digital reproductions of copyrighted albums, audiovisual works, software,
photographs and other forms of media has increased dramatically. Indeed, a significant amount
of content, including Plaintiff’s creative works, is published exclusively in digital format, which
increases the public’s access to digital reproductions. While access to digital reproductions of
copyrighted media has increased, the costs of digital storage capacity and internet bandwidth
have fallen precipitously. The combination of increased access to digital content and the lower
costs of storage and transmission of that content over the Internet has created a situation ripe for
systemic Internet-based content piracy.
6.
A development that heralded the arrival of wide scale Internet-based piracy was
the introduction of modern peer-to-peer file transfer protocols. Under earlier file transfer
protocols, users downloaded data directly from a central server. The rate of data transmission
provided by a central server would slow dramatically when the large numbers of users requested
data simultaneously. Moreover, central servers that distributed pirated content were vulnerable
to legal injunctions.
7.
Modern peer-to-peer file transfer protocols substantially avoid these problems by
allowing each data-seeking user to both upload to and download from other data-seeking users
without the material assistance of a robust central server. In contrast to traditional file transfer
protocols, modern peer-to-peer protocols actually work better when large numbers of users
3
request data simultaneously because as the number of users seeking a file grows, so too does the
number of users from which to download the file. Moreover, a distributed web of users is far
more difficult to shut down than a central server.
8.
The most popular and peer-to-peer file transfer protocol is the BitTorrent
protocol. Studies have estimated that the BitTorrent protocol accounts for up to 70% of all peerto-peer traffic and as much as 50% of all Internet traffic in some parts of the world. In
BitTorrent vernacular, individual downloaders of a file are called peers. The aggregate group of
peers involved in downloading a particular file is called a swarm. A server that stores a list of
peers in a swarm is called a tracker. A computer program that implements the BitTorrent
protocol is called a BitTorrent client.
9.
The sharing of a file via the BitTorrent protocol operates as follows. First, a
person who possesses a complete digital reproduction of a given file intentionally elects to share
the file with other Internet users. That complete file is called a “seed.” The initial “seeder”
creates a small “torrent” file that contains instructions for how to find the seed. The seeder
uploads the torrent file to one or more of the many torrent indexing sites. As Internet users come
across the torrent file, they intentionally elect to load the torrent files in their BitTorrent client,
which uses the instructions contained in the torrent file to locate the seed. These users now are
peers in a swarm with respect to that digital reproduction. The BitTorrent protocol dictates that
each peer download a random portion of the file (a “piece”) from the seed. After a peer has
downloaded its first piece, it then shares that piece and subsequent pieces with other peers in the
swarm. The effect of this protocol is that each peer is both a downloader and uploader of an
illegally-transferred file. As more peers join the swarm, the rate of data transfer typically
increases because the odds of connecting to another peer improve.
4
10.
In observing the swarms that were formed to distribute the copyrighted content
subject to Plaintiff’s exclusive rights, I observed swarms that were hundreds of users large that
contained peers from states across the United States as well as many countries around the world.
The BitTorrent protocol is particularly well suited to transferring large files, such as the
audiovisual works produced by Plaintiff, as it allows even small computers with low bandwidth
to be capable of participating in large data transfers across a peer-to-peer network.
11.
Where, as here, a content owner such as Plaintiff has not authorized this
uncontrolled mass-reproduction and distribution of its content via the BitTorrent protocol, I
believe that the copying and distribution of its content violates copyright laws. Because
BitTorrent is a distributed protocol, there is no central server that can be targeted for purposes of
stemming the tide of piracy. I believe that seeking recourse against individual content pirates is
likely to be the most effective means of addressing BitTorrent-based content piracy.
Identification of the Doe Defendants
12.
In order to assist Plaintiff in identifying instances of copyright infringement on
BitTorrent-based peer-to-peer networks, MCG used sophisticated and proprietary peer-to-peer
network forensic software to perform exhaustive real time monitoring of BitTorrent-based
swarms involved in distributing the copyrighted creative works relevant to Plaintiff’s action.
MCG’s proprietary software is effective in capturing granular-level data about the activity of
peers in a swarm and their infringing conduct and MCG’s processes are designed to ensure that
information gathered about each Doe Defendant is accurate.
13.
The first step in the infringer-identification process is to locate swarms where
peers are distributing the copyrighted creative works. I accomplished this step by using a variety
of techniques to locate torrent files sharing the names of copyrighted creative works subject to
5
Plaintiff’s exclusive rights. Such files are commonly located on torrent indexing sites, but can
also be found on Internet file-sharing forums and areas where users congregate. Because a
torrent file only contains directions about where to find the swarm associated with a particular
item of digital content, the next step is to locate the swarm.
14.
The most common means of locating a swarm is to connect to a BitTorrent
tracker, which is a server that contains an updated list of peers in a swarm. A typical torrent file
contains a list of multiple trackers associated with the underlying file. Other means of locating a
swarm include using Distributed Hash Tables, which allow each peer to serve as a “mini-tracker”
and Peer Exchange, which allows peers to share data about other peers in the swarm without the
use of a tracker. I used all three methods to locate swarms associated with Plaintiff’s exclusive
rights.
15.
After locating a swarm, I used MCG’s proprietary forensic software to conduct an
exhaustive real time “fingerprint” of the swarm. In doing so, I collected data on the peers in the
swarm, including what activities each peer was engaging in and other important data such as the
date and time that each Defendant was observed by the software as engaging in infringing
activity and each Defendant’s Internet protocol (“IP”) address at that date and time. Although I
was able to observe Defendants’ infringing activity through forensic software, this system does
not allow me to access Defendants’ computers to obtain identifying information other than an IP
address. Nor does this software allow me to upload a file onto Defendant’s computer or
otherwise to communicate with it.
16.
An IP address is a unique number that is assigned to Internet users by an Internet
service provider at a given date and time. There are two types of IP addresses: dynamic and
static. A static IP address is an IP address that will be associated with a particular user as long as
6
that user is a customer of a given Internet service provider. A dynamic IP address is an IP
address that will change from time-to-time.
17.
Most consumer customers of Internet service providers are assigned a dynamic IP
address. The reason for this is that an Internet Service provider can get by with a smaller overall
pool of IP addresses if it simply assigns the next available IP address at a given time to a
customer who wishes to connect to the Internet versus allocating a permanent and unquiet IP
address to each of its users. Internet service providers keep logs of IP addresses, but the length
of time they keep the logs can be as short as days, making expedited discovery of the identities
associated with those IP addresses critically important in the instant action, particularly since
nearly all of the Defendants I observed appeared to be associated with dynamic IP addresses.
18.
After recording granular level data about every peer in the swarm, the next step is
to carefully and thoroughly review the data produced by MCG’s proprietary forensic software to
determine what peers were actually involved in illegally reproducing and distributing our client’s
copyrighted creative works. We then trace each offending IP address to specific ISPs. I
performed this work with respect to the copyrighted creative content subject to Plaintiff’s
exclusive rights.
19.
When a verified peer was located who was making files subject to Plaintiff’s
license available for distribution and reproduction via the BitTorrent protocol, I downloaded and
retained both the torrent files and the actual digital reproductions being offered for distribution to
verify that the digital copies being distributed in the swarm were in fact copies of the copyrighted
creative works subject to Plaintiff’s license. Because a file could be mislabeled, corrupt or
otherwise not an actual copy of Plaintiff’s files, I physically downloaded the file and compared it
7
to an actual copy of the copyrighted creative works to confirm that the file was a substantiallysimilar reproduction of the copyrighted creative work.
20.
Finally, I stored all of the data we collected in a central database for later use,
examination and audit.
The Critical Importance of Expedited Discovery
21.
Defendants are known to Plaintiffs only by the IP number they were assigned by
their Internet service provider on the date and time we observed each Defendant engaging in
infringing conduct. The only party from whom Plaintiff can discover Defendant’s actual names
and addresses is Defendant’s Internet service provider. Without expedited discovery in this case
against Defendant’s Internet service provider, Plaintiff will have no means of serving Defendants
with the complaint and summons in this case and no means to protect its creative works from
ongoing infringement.
22.
Internet services providers have different policies regarding the length of time
they preserve information about what IP address was associated with a given subscriber at a
given date and time. Some Internet service providers store this information for as little as weeks
or even days before potentially permanently erasing the data they contain. Informal requests for
data preservation to Internet service providers can meet with varying degrees of success and are
no substitute for formal discovery. If an Internet service provider does not have to respond
efficiently to a discovery request, the information in that ISP’s database may be erased forever.
23.
Certain ISPs own excess IP addresses that they lease or otherwise allocate to third
party “intermediary ISPs.” Because the lessor ISP has no contractual relationship with the
intermediary ISP’s customers, the leasing ISP would be unable to identify the Doe Defendants
8
through reference to their user logs. In contrast, the intermediary ISP should be able to so
identify.
Continued Monitoring
24.
The copyrighted creative works at the heart of this action continue to be made
available for unlawful duplication and distribution via the BitTorrent protocol, in violation of
Plaintiff’s exclusive rights to reproduce and distribute the copyrighted works via the BitTorrent
protocol. MCG continues to monitor on a real time basis the unlawful duplication and
distribution and to identify content pirate by the unique IP address assigned to them by their
respective Internet Service Providers on the date and at the time of the infringing activity.
Executed on June 6, 2011, in Minneapolis, MN.
____________________________________
Peter Hansmeier
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?