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MPAA sues TV torrent tracker sites

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Sunday, 22nd of May – an opinion piece by PINAC contribututor BJ.

Thursday, May 12th, a press release comes out. It's from the MPAA, so you know it's going to be interesting. It's picked up by a few tech sites in the US, then later by Slashdot, and then the news is all over the web: "MPAA sues 6 television torrent sites".

[Ed. note - this is an MPAA-related article, so "them"/"they" in this case is referring to the Motion Picture Ass. of America throughout, rather than our usual target]

Alas, as usual, their press release is full of misleading, or exaggerated data, or outright plain lies, but those who regularly read here at PINAC know that by now. So, for their latest press release, let's see what lovely lies we can uncover.

The Motion Picture Association of America, Inc. (MPAA) today announced that it is filing lawsuits against six highly trafficked BitTorrent websites responsible for the illegal swapping of millions of dollars of motion picture and television programming.

I don't know about where many of you went to school, but I went to a pretty damned good school, with all the side events that went with it. One of these was 'mock trials'. They were run rather strictly, with input from various barristers and judges (there were magistrates on the board of governors of the school) so a lot of legal input, making them accurate and challenging. One of the first things they drummed into me was "never state as fact anything that can not be conclusively proven without a shadow of a doubt to be fact". See, 'illegally swapping' is not a solid fact. US shows, swapped within the US are not obviously illegal, to my knowledge. It is exactly the same, to my mind, as if said person had used a VCR or DVR to record the show instead. This practice, called timeshifting, was upheld as legal more than 20 years ago by the US Supreme Court. Similar 'fair use' rights are conferred upon the British for UK aired shows. So, let's say the fact that it's illegal comes strongly into doubt on that basis alone. Secondly, no copyrighted data is on a tracker, nor included in the torrent file. The legality of BitTorrent has not yet been ruled on by a court of any nationality. Add that in, and you'll find that its a blatant lie to call it 'illegal' at all, when precedent counters much of the 'WHAT' and the sheer lack of precedent nullified the 'HOW'.

This is the first time that the MPAA has targeted TV-oriented sites for illegally swapping TV shows which has become a serious and growing problem.

Hands up everyone who loves these statements. They convey a sense of verbal indignation that someone might dare to interrupt their massive profits, and call into question their practices and ethics. As I said just a little bit ago, a large number of people use said sites for timeshifting. The same people argued in the early 80's that the VCR was 'a serious and growing problem'. In my last piece (http://piracyisnotacrime.com/timetravel.php) I pointed out just how much of a 'problem' that was for them now. (To recap, the home video divisions of the United States studios garnered $11.4 (£6.08) billion in wholesale revenues from the $24.6 (£13.12) billion that non-US consumers spent buying and renting home video products in 2004.) I sure wish I could turn a 'problem' into an $11billion/year income in 20 years. A problem – let me remind you – which was so serious that they sought to get VCRs banned from sales in the US, and wanted a huge compensatory cheque to boot. I bet they're kicking themselves that they didn't win that one.

An Internet-monitoring company called Envisional reported recently that TV show piracy increased by 150 percent just in the past year.

Ah, the old stand-by – the 'percentage increase'. What this says, simply, is that one company did one study, and found that some figure they'd worked out for piracy was 50% bigger than some other figure they'd worked out the year before. What they don't do, however, is give you any actual figures. Forgive me for being cynical, but a 50% increase seems a little too round of a number to be credible. Had they said "increased by 48.58% in the past year" it might be a little more believable. Heck, provide some figures – that would also be better. A vague, clearly rounded percentage alone, nope, sorry. Your pants are on fire.

"Internet thievery of all creative materials is unacceptable and these thieves need to realize they are not anonymous," said MPAA President and CEO Dan Glickman. "There are thousands of people in the entertainment industry who are working to develop, produce, and promote television shows. Those shows and those jobs are worth protecting."

I've been asking around – 95% of torrent users that I've asked, do not believe they're anonymous. To characterize these users as 'thieves' shows clearly his lack of understanding, perception and more importantly grasp of the basic facts. As stated above, a large percentage are using said sites as a form of Supreme Court Sanctioned timeshifting. Dan should know better, but we'll come to why in a moment. Meanwhile, there are many in the Industry that work to develop and produce TV shows, and they should be protected (I, myself, have worked on TV shows both in the US and UK – for greater irony, the first job in TV I had, was working on a TV show for ZDTV. Their news arm was one of the places that reprinted this press release and called it 'news'; even more ironic, said show was broadcast on the web.)

Promoting TV shows though, here we get into the murky world and the reason for the lawsuits: advertising and sales.

Every television series depends on other markets-syndication, international sales – to earn back the enormous investment required to produce the comedies and dramas we all enjoy and those markets are substantially hurt when that content is stolen.

Ah, rhetoric, the staple of any politician, and yes, that's what Dan Glickman is, or was – a career politician, according to his bio (http://www.mpaa.org/about/dan/). Prior to taking up this post as head of the MPAA a little over 9 months ago, he had NOT worked in the motion picture industry, nor any related field, unless you count pandering to C-SPAN (for those that are unfamiliar with c-span, "the primary mission of the C-SPAN networks is to provide live gavel-to-gavel coverage of both houses of Congress."). He was previously head of the Institute of politics at Harvard, then Secretary of Agriculture for part of the first, and all of the second term of Bill Clinton's presidency. Before that, 18 years as a Kansas Congressman. That takes us to the late 70s. "Before his election to Congress in 1976, Secretary Glickman served as president of the Wichita, Kansas, School Board; was a partner in the law firm of Sargent, Klenda and Glickman; and worked as a trial attorney at the U.S. Securities and Exchange Commission." (Taken from his bio, top of second column). Now, why would he be made head of a company that doesn't produce anything that it claims to want to protect, a lobbying firm. Could it be because of his political connections? I assume that if you spend 25 years working in DC as a government representative, you make some contacts. It certainly wouldn't be for his legal knowledge (the only other career he's had) since its clear that he's not exactly sure what is legal and what isn't, or even that he's aware he has possibly opened himself up for action with that libelous statement.

To get back on point, from what I remember from my time in the TV industry, it's viewing figures that drive the money. The more watched a TV show is, the greater the charges for the advertising that runs during it. It's also easier to sell a program with better ratings overseas. HOWEVER it's not as cut and pasted as he would lead you to believe. Were I to go watch a TV show, or not, wouldn't make a bit of difference to the ratings, especially in the US. Ratings are calculated from a small sample selection, who have set-top boxes added for a while (ranging from 1 month up). These people (commonly called Nielsen families) have their viewing habits monitored, and these figures are scaled up to encompass the entire US. When they say that a TV show gets "22 Million viewers" they aren't counting every one of them, just Nielsen subjects that correspond to 22 million watched that program. What this means, in effect is that 10,000 non-Nielsen families could watch a show of, say, 24 downloaded via BitTorrent, and it wouldn't make a difference to viewing figures. By the same token, if 5 Nielsen families don't use their TV to watch the show, but instead download it and watch, then the ratings might be 100,000 (or however many those 5 represented) lower than they would otherwise be. As for how many, well, they answer it themselves:

How many "Nielsen families" are there?

There are 5,000 households in the national People Meter sample, approximately 20,000 households in the local metered market samples, approximately 1,000 metered homes for our national and local Hispanic measurement, and nearly 1.6 million diaries are edited each year.
(http://www.nielsenmedia.com/FAQ/nielsen_families.html)

Let's go conservative, and say that 100Million are represented by the Nielsen stats. (That is, if all were watching one program, that show would have a rating of 100million viewers). There's 26,000 metered units total. Comes out to about 3850 (3846.15 to be exact) so in our previous example, 5 families download via torrent instead of using the TV. That's 19230 'viewers lost.' according to the ratings. Now, they will have you believe that this means that torrents have cost them over 19,000 viewers, when its clear its done no such thing. It has cost them 5 broadcast viewers (or assuming a full family now isn't watching, lets be generous again, and say 25 people are now not watching). This isn't the cinema, it's a system where data, normally goes into the house (i.e. the broadcast) but no viewing data is normally sent back. This is the drawback of a "limited scale sample" - small, statistically insignificant groupings can have large effects if they do not come up with their theoretical statistical probability. To simplify, flip a coin 4 times. If it comes up heads all 4 times, you might think it's a biased coin, because something with a probability of 1/16th has occurred, rather than 2 heads and 2 tails, which is statistically the most probable. Or, simplest of all, as the author Terry Pratchett put it "as everyone knows, million-to-1 chances come up 9 times out of 10". Statistics is the one area of maths, where theory and reality are often wildly at odds with each other. To further put the above into context, it's only in the national people survey that age/generation demographics are collected and collated. The local ones just get what the TV is tuned to, no who is watching it. The 100M is also low for prime time.

"On these sites, anyone in the world can download entire television seasons in a single click."

Another lie (at this rate, his rump will be well past medium rare on their way to well-done). With the help of some cached copies of btefnet.net, I checked out their torrent lists. You know, I didn't find ANY complete seasons on there at all. The nearest I found, was the BBC's Dr Who series, where all 7 episodes of the latest season are available. However, since the season is some 15 episodes long, that's hardly a 'complete season'. This was on the site they claimed to be the biggest one. Problem is, torrents die. They're short life only. 3-4 months is about average for a torrents lifespan, and almost every television season is longer than that.

MPAA officials said they have been making progress in shutting down many of the BitTorrent sites that are dedicated to illegally swapping movies. Over 90 percent of the sites that have been sued have been shut down entirely.

How many were shut down before you sued them? That they won't answer. Again, its the percentage, with no actual hard numbers. If it's such a good number, that you feel the need to boast of it (as you are doing here) by all means, post the number. By my reckoning there's been maybe 20-30 sites sued, of which at least 1 had already been closed for a few months. Whilst on the subject of suing websites, and shutting them down, lets go through the method that is used to sue a site, by the MPAA, as my research has been able to uncover

Step 1) Find a site. Doesn't matter where the site is, or what it does.
Step 2) Send threatening emails via contact link on site (sometimes omitted, might be replaced by "release a press statement saying you intend to sue people, and commit libel during said statement", which is where we are right now).
Step 3) Go to a friendly judge in the US and file a John Doe (persons name unknown) suit, claiming vastly inflated damages. Jurisdiction or court picked isn't important, see why later)
Step 4) use said suit to force ISP to hand over a person's name.
Step 5) Send someone to serve John Doe papers on non-named person, the alleged defendant.
Step 6) Issue more press releases.
Step 7) Contact defendant and say "well, you can settle out of court, for $40,000, which is cheap since we're suing for 3750x more (say about $150,000,000) and because we'll easily spend more than that 440k on lawyers, and with that much money spent, and all the lobbyists, you've not got a chance" (also known as intimidation, this is why jurisdiction of the court selected to hold trial doesn't matter, its intimated that they can throw enough money at the case to ensure a victory)
Step 8) (this is a new one, because only one case has gotten this far, and that was in the last week) finally have the case changed from a john doe suit, to have a named defendant.

The intimidation is easy enough. $150Million – how many of us make that in a LIFETIME? For the members of the MPAA, it's barely a day's profit. Thus, the gracious offer to settle for $40k seems a welcome load off their mind. Problem is it then removes it from the court system, to the MPAA's advantage. If for instance, someone is in the UK, and hasn't left it for 4 years, it's kind of hard to see why he would fall under the jurisdiction of, for another instance, the federal court in Illinois for actions allegedly committed the previous year. There are even strong indications that at least one 'target' of the MPAA will be sending a case of extortion against the MPAA for actions very similar to those described in Step 7 above.

On some of these torrent site's original homepages like Lokitorrent, UK Torrent and s0nicfreak there now appears the MPAA warning message: "You Can Click But You Cannot Hide."

To the best of my knowledge, these sites all succumbed to step 7. This was part of the 'deal' for Lokitorrent. Indeed, evidence backs that up, by the fact that domain whois hasn't changed. Indeed, some people, I hear, are considering filing fraud charges over this, as money was collected for a legal defense fund (some $40,000) and if this money has gone into paying a settlement, then that may constitute fraud.

"Since we began shutting these sites down, the time that it takes to download a file on BitTorrent has increased exponentially which means the experience of downloading copyrighted films and TV shows is not what it used to be," said Glickman. "We intend to make it even worse. Protecting the television industry is essential."

Again, lack of understanding – he should stick to telling farmers how to grow crops. Each torrent is separate. Actions to one don't affect another. Secondly, limiting the numbers of torrents means more peers per torrent, and with BitTorrent an increase in peers means an INCREASE in overall speed. There is an easy way to protect the industry – increase the QUALITY of programming. The industry will be in a lot of trouble in a year or three, when the Reality bubble bursts, and the cheap shows (Reality shows are really cheap, a series of Friends is a lot more expensive to make than Pop Idol (which probably costs half a million at most to make). As part of my duty to you, my readers, I can assure you TV shows aren't that hard to get hold of, even today, a day after these 6 suits were announced, and whilst I can't personally comment on the 'downloading experience' many have said it's unaffected. Indeed, I can't see how different it is; you still get a torrent file (containing no copyrighted data) and leave it to run for a few hours. To use a symbolism that they MIGHT understand a bit more, let's compare aircraft and cars. If a country's ATC (Air Traffic Control) system is shut down, then it's very hard to fly an aircraft. This is centralized p2p, such as the old Napster, etc. services they're used to. BitTorrent, however, is more like cars, or railways. A shutdown of the system, no matter how complete, in Washington DC, or London, won't make a damned bit of difference to those transport systems in Atlanta, or Liverpool. These systems are separate, locally regulated and not massively interconnected. There is no centralized infrastructure. Take down one tracker, and all you affect are torrents using that tracker. Torrents NOT using that tracker are completely unaffected. This is why press releases such as these are needed, because how else would people not using these torrents know?

Below is a list of the six BitTorrent sites being sued by the MPAA. Together, these sites facilitate the illegal swapping of copyrighted material to over 100,000 people daily.

Being sued, or GOING TO BE SUED? See, as of the time of writing (7pm GMT on Saturday 14th May, 2 days after the press release was issued) There have been no details on where its been filed, no papers have been issued to the 2 sites i have contacted, and indeed nothing is known other than what is in this press release. When they decided to sue Alexander Hanff (owner of dvdr-core.org) they made a big fanfare about John Doe suits, then before naming anyone, they'd served him. How they're naming, and have yet to serve them. Indeed, this could also be construed as attempting to prejudice any trial through extensive publicity. As for the '100,000 people daily' claim, it's one last lie. According to sources at btefnet, they have no idea how many peers a day they have, or indeed how many actual people that corresponds to (45,000 peers, could be only 15,000 people, if each person is running an average of 3 torrents). Their claim of 100,000 people daily would and could only be true if every peer was a unique person, only had one torrent, and was on for one day only. Each of these 3 are unlikely even singularly, the odds of all 3 being true for 2 days are terrible. You have a better chance of winning any 6-ball lottery's grand prize twice in a row.

In short, we have a press release, full of lies, omissions, exaggerations, and libelous statements. Neither bad, nor unexpected coming from a career politician.

The news coverage for this press release has also been remarkable. San Francisco based ZD news and CNet (both well known tech news sites) have reported on it, as have the BBC (and if you don't know who they are, which planet have you just arrived from) and in all 3 occasions, their 'news story' was quoting and expanding on the press release. According to the contacts at two of the named sites, who only agreed to talk with me confidentially, in a secured and anonymous setting, no-one else had even attempted to approach them to get any information. Are these three places turning into a press-release reporting service? Odds are they won't report or even reference this article, or even read it. Does make you wonder where their journalistic ethics are though, when they blindly report a press release from a lobby-group without bothering to check any of the 'facts' contained therein. Shame on you three.

As more information is received from either side, expect to see further updates here. Alternatively, if you see something here that is clearly untrue then by all means contact us for a correction, just be sure to include some sort of verifiable proof.

BJ.

**Bootnote** This article was written on 13th+14th May. I held off on publication of this, certain to hear that a lawsuit has been filed, either by another press release, or one of the sites receiving paperwork from a court. It's now 12:15am GMT on Sunday 22nd, and no-one's been served anything, no news about the lawsuits from the MPAA, no response from Envisional about that report, despite having contacted them, as they state. A blatant example of F.U.D. here then, from a group of shady lawyers and politicians. BJ.

 
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