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ensures that the parcels of data sent to B are different from those already sent to
A. The tracker server, coordinating this data flow, causes A to re-transmit the
data it has already received to B, thus relieving the seeder of that burden.
Similarly, since B is receiving data which A has not yet received, the tracker
server directs B to re-transmit that data to A. Thus, the “peer” computers A
and B share data they have received from the seeder. As C, D and E join in, the
tracker server coordinates the data flows with a view to each member of the
downloading network (termed a “swarm” in BitTorrent usage) receiving an
entire copy of the film directly or indirectly from the initial seeder.
29.
This system is generally understood by participants and, as was
pointed out in evidence, “it is considered good BT manners for a downloader to
stay connected for some time after finishing his download, in order to make his
packets available to other downloaders and to assist in completing their
downloads.”
30.
In the present case, in relation to “Daredevil”, the tracker server’s
peer list indicated that 40 peer computers were downloading the film when the
Customs Officer gained access to the tracker server. In the case of each of the
other two films, the presence online of two other peers was indicated. As
previously noted, the officer succeeded in downloading entire copies of each of
the three films.
31.
From the foregoing facts, it is clear that via an internet BitTorrent
network in which the appellant’s computer acted as the initial seeder, a number
of downloaders obtained infringing copies of the films which were duplicates
of the infringing copies residing on the appellant’s computer. The question is
whether this was the result of a process amounting in law to distribution by the
appellant of infringing copies of the films.
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