> So, a defendant could claim "At the time you caught me downloading it, an authorized representative of the copyright holder was publishing the content on BitTorrent".
They could be publishing data, but you'd have to prove that they weren't just uploading bogus data into the stream. BitTorrent hashes all of the chunks it downloads, but that doesn't prevent someone from constantly uploading bogus data that is only rejected once you've downloaded it. [IIRC, there are clients that will blacklist peers that consistently send corrupt chunks though.] They could just claim that they were uploading random data, and you would have to have some way to refute that (which you wouldn't unless you keep an audit trail of all peers you connect to over BitTorrent).
They could be publishing data, but you'd have to prove that they weren't just uploading bogus data into the stream. BitTorrent hashes all of the chunks it downloads, but that doesn't prevent someone from constantly uploading bogus data that is only rejected once you've downloaded it. [IIRC, there are clients that will blacklist peers that consistently send corrupt chunks though.] They could just claim that they were uploading random data, and you would have to have some way to refute that (which you wouldn't unless you keep an audit trail of all peers you connect to over BitTorrent).