[AnthonyMouse]

> What is?

The notion that statutory damages were intended to exceed actual damages by such an unreasonable factor on purpose (hundreds to hundreds of thousands, when the standard for punitive damages is 3) rather than the ridiculous result of applying a law written with one circumstance in mind to an entirely different circumstance.

> A person retains a single copy for himself. However he does indeed actively participate in the creation of many other copies (potentially hundreds of thousands as you say).

Many of the early P2P networks (and some of the current ones, especially for small to medium files) don't have more than one user participating in any given transfer. If you wanted to download something on Napster it would connect to one other person and download the entire file from them, with no other users being involved.

That is also what happens in practice in modern day even for the networks that try to download different parts of the same file from different people, because connections are now fast enough that as soon as you connect to one peer, you have the whole file. A 3MB MP3 transfers in ~30ms on a gigabit connection, meanwhile the round trip latency to a peer in another city is typically something like 100ms (even for fast connections, because latency is bounded by the speed of light). So it's common to connect to one peer and have the entire file before you can even complete a handshake with a second one, and rather implausible for a file of that size to involve more than a single digit number of peers. Hundreds of thousands would be fully preposterous. And then we're back to, the number of uploads divided by the number of users is ~1, so if the average transfer involves, say, four peers, the number of uploads the average peer will have participated in for that file will also be four. Not hundreds, much less hundreds of thousands.

Meanwhile you're back to the problem where splitting the files should be splitting the liability. If four people each upload 25% of one file to each of four other people, the total number of copies is four, not sixteen. If you want to pin all four on the first person then also pinning all four on the second person is double dipping.

[fc417fc802]

Agreed that the magnitude of the penalty no longer matches the intent of the original law. But note that my original claim was not inaccurate. The point of the law here _is_ to make an example of people. Those two things aren't mutually exclusive.

I believe your claims about network speeds and peer count are largely inaccurate when it comes to torrents (and any other block based protocol that involves the equivalent of swarms) but I won't belabor it.

I'll also ask how you reasonably expect a court to go about performing the partial attributions you describe for data torrented from a large swarm. Like how would that even work in practice?

You make an interesting point about overall averages yet it seems to entirely miss the point of the law. Damages aren't reduced if I only illegally reproduce 25% of a book. A single chapter and the entire work are treated as equivalent here. It's the act and intent that the law is concerned with, not the extent (at least within reason).

The question is what color your bits are. Now how many of them you have or how many different people you obtained them from.

[AnthonyMouse]

> The point of the law here _is_ to make an example of people. Those two things aren't mutually exclusive.

Whether they're mutually exclusive or not, I don't think that was even the point of the law. The point of statutory damages is supposed to be to address the problem of proving an exact amount of actual damages, by instead providing what was supposed to be a plausible estimate of them. But then they got applied in a context where the number hard-coded into the law is an exorbitant overestimate.

> I believe your claims about network speeds and peer count are largely inaccurate when it comes to torrents (and any other block based protocol that involves the equivalent of swarms) but I won't belabor it.

I'm pretty confident that's accurate for small files like a 3MB MP3. They literally do get fully transferred before the client has time to connect to a non-trivial number of peers. A lot of torrents use a 4MB chunk size, and even when the chunk size is smaller, you're still going to get multiple chunks from any given peer. Even with e.g. a 512kB chunk size a 3MB file has an upper limit of 6 peers, if you can even connect to that many before the first one has sent the whole file.

Large files could use more peers, but "hundreds of thousands" is still a crazy number. There are a non-trivial number of consumer junk routers that will outright crash if you try to open that number of simultaneous connections.

And I regularly use BitTorrent for Linux ISOs (I know it's a cliche but it's true), which are decently large files. The median number of connected peers when seeding really is zero, and the active number rarely exceeds 1, for anything that isn't a very recent release. Even if I leave the thing on indefinitely, until it's no longer a supported release and no one wants it anymore, on a connection with a gigabit upload, the average ratio will end up around 1. Because of course it is, because that's inherently the network-wide average.

> I'll also ask how you reasonably expect a court to go about performing the partial attributions you describe for data torrented from a large swarm. Like how would that even work in practice?

I mean this isn't really that hard, right? If getting the exact number for a specific person is unrealistic, we still know that total copies (and therefore total uploads) per user is ~1. So to do the normal punitive damages amount you take that number and multiply it by 3 instead of hundreds or hundreds of thousands.

> Damages aren't reduced if I only illegally reproduce 25% of a book. A single chapter and the entire work are treated as equivalent here.

But the entire work is being reproduced. The issue is that in the cases where it's a group effort, they're trying to double dip.

Suppose Alice, Bob, Carol and Dan work together to break into your shop like Ocean's 11 and steal four $1 cookies. They each get a cookie and you lost four. (Never mind whether you actually lost them or not.) If you only catch Carol, it's not always reasonable to put her on the hook for the entire amount instead of only her portion of it, but at least you could plausibly argue for it. But if you catch two of them, or all of them, expecting them to each pay the total for the whole group instead of collectively pay the total for the whole group is definitely unreasonable.