In an order issued May 29 that was under seal until last week, federal Judge Jacqueline Chooljian found, among other things, that data stored in a server’s random-access memory (RAM) “constitutes electronically stored information.”
Acting on behalf of Columbia Pictures and other major Hollywood studios, the MPAA filed suit against TorrentSpy in February of 2006 alleging copyright infringement. The MPAA argued that TorrentSpy knowingly enables, encourages, induces and profits from "massive online piracy of plaintiffs’ copyrighted works" through the operation of its website.
In March of this year, the MPAA filed a motion for an order requiring TorrentSpy to “preserve and produce certain server log data.” Specifically, the plaintiffs wanted TorrentSpy to log and produce data relating to the IP addresses of TorrentSpy users who request “dot-torrent” files, log the requests for the dot-torrent files themselves, and the dates and times of such requests.
In her late May order, Chooljian ordered TorrentSpy to “commence preservation of the Server Log Data at issue with seven … days of this order” and to produce the data within two weeks of the order, but granted a stay to allow TorrentSpy to file an appeal, something the company did earlier this week. It is not clear when the appeal will be heard.
Attorneys for the MPAA and other content producers and copyright holders praised the judge’s ruling, and predicted dark days ahead for torrent sites.
“Unfortunately for TorrentSpy, Judge Chooljian’s decision may herald the end of an era,” said Los Angeles-based attorney Richard Charnley in a written statement. “The process, if affirmed, will expose TorrentSpy’s viewer-users and, in turn, will allow the MPAA to close another avenue of intellectual property abuse.”
Lauren Nguyen, an attorney for the MPAA, said that the judge “broke no new ground in the case,” and asserted that courts have long considered RAM to be “electronically stored information.”
Ira Rothken, attorney for TorrentSpy, strongly disagreed with Nguyen.
“That statement is false,” Rothken told XBIZ. “There is no precedent where RAM is considered a ‘document.’”
Rothken explained that in providing materials for legal discovery, “it is axiomatic that in responding to a discovery request for documents one need not be compelled to create new documents.”
In requiring that TorrentSpy record and produce the data from its server RAM, Rothken said, the judge is in fact requiring the company to produce new documents for discovery, as there is no definition of “document” under which one could argue that the data contained in a computer’s RAM comprises an “existing document.”
Should Chooljian’s order stand, Rothken said “attorneys will be flinging around preservation letters demanding that people preserve their RAM,” and the economic implications of storing all the resulting data would be huge.
“There are enormous implications for the adult industry [in the judge’s order] as well,” said Rothken, who has many adult industry clients, and has worked extensively with the Free Speech Coalition. “This order amounts to a de facto civil wiretap.”
If Chooljian’s order holds up under appeal, Rothken said, any adult web company that found itself as a defendant in a civil case could be burdened with archiving and creating documents from their web servers’ RAM, and to produce that data during the discovery phase of their case.
In TorrentSpy’s appeal filed this week, the defense argued that Chooljian’s order should be overturned because the judge “did not have the authority or jurisdiction to issue the discovery order because it amounts to an injunction that disposes of ultimate issues in the case.”
The defense further asserted in its appeal that the judge’s order “infringes on constitutional rights, and is contrary to law.”
“The ‘server log data’ demanded by plaintiffs will include information personal to a website visitor,” the defense wrote in its appeal. “Such data has never existed at defendants’ website; but defendants are ordered to collect it and to hand it over to plaintiffs, albeit with a “mask” that seems destined to be stripped away. The magistrate judge’s order is unprecedented and damaging to online free speech and privacy and to free market values that support technological development.”
Rothken told XBIZ he is confident that his client will prevail on appeal.
