Encryption just makes it difficult for your ISP to automatically throttle your torrents. Anyone can still download the torrent themselves and see that you're an uploader.
They would have to get all their pieces from you, breaking protocol. They'd also have to be doing this on a large scale. They'd also either be breaking whatever laws you might be breaking, or they are providing you an implicit license.
I'm saying that whoever was proving a violation would have to show infringing distribution of a protected work. Bit torrent pieces generally contain a small fraction of the total work, which could easily be fair use. You'd have to show that the person was actually transmitting a protected work against its license. That piece may have been a short clip in a more encompassing work. You won't know until you get more of the context (other pieces).
So, maybe "they" (person/group alleging infringement) wouldn't have to get all the pieces, but it makes their case much stronger. There can certainly be fair use arguments made for transmitting torrent piece sized copies of protected works.
Nope, still wrong (not 'arguably wrong', plain factually wrong). That's not how 'fair use' works - it's not because you send a part (what you call a 'clip') of a work, that it becomes fair use all of a sudden.
I'm not sure what you're reading, but I never said that sending part of a work makes it fair use. I said that there are fair uses that involve sending parts of a work and that proving a single or small number of pieces were transmitted between parties is not ipso facto evidence of infringement.
Look man, like my nan used to say - 'when you're in a hole, stop digging'.
"There can certainly be fair use arguments made for transmitting torrent piece sized copies of protected works."
How is that not 'sending part of a work makes it fair use' ? Yes yes you're using 'argument could be made' weasel words, but that doesn't mean you're not saying it. Here's a Godwin'ing analogy for good measure: 'arguments could be made that the Holocaust was justified. Of course I'm no nazi, I'm just saying that they could be made'. Yeah sure, good luck going on the record saying that and not (justifiably!) be classified as a nazi sympathizer.
Anyway:
"I said that there are fair uses that involve sending parts of a work"
No you didn't, you made some connection between 'the bittorrent technology, which sends pieces of data, and fair use of parts of works'. A connection that is non-existent. The criteria for fair use are wholly orthogonal to the concept of 'cutting up' a work as it is done in a bittorrent transfer. No (reasonable) argument can be made otherwise. There has been litigation on copyright infringement via bittorrent for about a decade now, if this line of reasoning stood any chance, wouldn't you think it had been used by now?
"that proving a single or small number of pieces were transmitted between parties is not ipso facto evidence of infringement"
Yes it is when there is no fair use involved, and there is no fair use claim just because bittorrent sends stuff in pieces.
Sadly, the law is not a mechanically applicable algorithm.
The logic here would, in part, be: "we have evidence that you were taking part in distribution of data that violated copyright law; we don't have to download the entire file from you to have sufficient evidence that you would have supplied any arbitrary data on request".
As for any "fair use" claim, one of the specific pillars there is the impact on the commercial value of the work. In that regard, commentary, critique, review, parody, and similar are not the same as wholesale unmodified distribution.
> They would have to get all their pieces from you
Unless you are sharing some packed and/or encrypted media, it's probably streamable and even sharing a part of it is enough to break the copyright laws.
