[Infowarrior] - MPAA accuses TorrentSpy of concealing evidence

[Richard Forno]

MPAA accuses TorrentSpy of concealing evidence
Posted by Greg Sandoval

http://news.com.com/8301-10784_3-9727965-7.html?part=rss&subj=news&tag=2547-
1_3-0-20

The movie studios may have discovered a new and powerful weapon in its war
on copyright infringement.

The courts have for the first time found that the electronic trail briefly
left in a computer server's Random Access Memory (RAM) by each visitor to a
site is "stored information," and must be turned over as evidence during
litigation, according to documents obtained by CNET News.com.

Jacqueline Chooljian, a judge in the Central District of California in Los
Angeles, issued the decision while presiding over a court fight between the
studios and TorrentSpy, the BitTorrent search engine accused of copyright
infringement in a lawsuit filed last year by the film industry. On May 29,
Chooljian ordered TorrentSpy to begin logging user activity, including IP
addresses, and turn the data over to the Motion Picture Assoc. of America
(MPAA).

The judge stayed the order on Friday to allow TorrentSpy time to prepare an
appeal, which must be filed by Tuesday. She also allowed TorrentSpy to mask
the Internet Protocol addresses of the site's users "at least at this
juncture."

This may be the first time that anyone has argued that information within
RAM is electronically stored information and therefore subject to the rules
of evidence, Chooljian said according to court records. Up to now, many Web
sites that promised users anonymity, such as TorrentSpy, believed they need
only to switch off their servers' logging function to avoid storing user
data.

Should Chooljian's order stand, the decision could force Web sites to
rethink privacy precautions.

The Electronic Frontier Foundation called the judge's decision "troubling"
and said it could mean that any Web site operator could be compelled to log
user activity anytime they faced a lawsuit. TorrentSpy's privacy policy
pledges not to collect any personal information about users except when they
"specifically and knowingly provide such information."

But user data were stored at TorrentSpy, according to Chooljian. The judge
said in court documents that this information survived on TorrentSpy's
server RAM for about six hours. RAM is defined by Chooljian as "a chip where
"volatile internal memory is stored."

The judge agreed with the MPAA that the existence of user data in RAM
enabled TorrentSpy to retrieve user information. She also wrote that the
data was crucial for getting at the truth in the case, according to records.

"There can be no serious dispute that the Server Log Data in issue is
extremely relevant," the judge said in her finding.

In one of the most hotly contested disputes so far in the case, the records
show that the MPAA accused TorrentSpy of trying to conceal evidence when the
search engine began directing visitors to the servers of an outside vendor
at about the same time the MPAA filed suit in February 2006.

The MPAA claimed that TorrentSpy did this to avoid being in possession of
user information as the search engine anticipated receiving a court order,
according to records. TorrentSpy denied the accusations and said that the
outside vendor was chosen for "significantly faster processing and
delivery."

Among the arguments TorrentSpy made against turning over logs was that the
law only required the production of documents already in possession. It did
not ask for the creation of new records.

That's exactly what the judge was asking the company to do, TorrentSpy's
attorneys asserted in court records. Chooljian disagreed.

"Since the information is already in the RAM, then defendants aren't really
being asked to create new information," Chooljian wrote.

She also noted that it was not her goal to set a far-reaching precedent with
her decision.

"The court emphasizes that its ruling," Chooljian said in the documents,
"should not be read to require litigants in all cases to preserve and
produce electronically stored information that is temporarily stored only in
RAM."

TorrentSpy's other arguments against tracking users were that the costs were
too high, the action would violate user's privacy and hinder free speech.
All were rejected.

In response to TorrentSpy's free-speech argument, the judge cited other
cases that had established illegal file sharing "qualifies for minimal First
Amendment protection."

Should TorrentSpy lose an appeal, the company would likely have seven days
to produce data logs, according to the court records. The company's
attorney, Ira Rothken, said Friday that it is unlikely TorrentSpy would
continue operations in the United States if forced to turn over user data.