True Torrent Spies
By Annalee Newitz
IT IS no big surprise that entertainment megacorp Columbia is suing more file sharers. But there is something quite shocking about their latest infringement lawsuit against website TorrentSpy. With this lawsuit, Columbia is attempting to do nothing short of changing the way evidence is gathered via the legal discovery process. That means the entertainment industry has finally figured out a way to screw everybody in the United States—not just the geeks using peer-to-peer software.
Columbia is suing TorrentSpy for infringement because the site makes it easy for people to find information about where to download unlawful copies of movies owned by Columbia. TorrentSpy itself doesn't make the movies available; it offers a search engine that locates files people can download via file-sharing program BitTorrent. The suit says that the guys who own the site are "inducing" others to infringe, as well as gaining secondary benefits from infringement because the site's popularity (and ad sales) are boosted by pirates.
Here's where things get hairy. During discovery, the period in a lawsuit where both sides gather evidence, Columbia ordered TorrentSpy to hand over its user logs: electronic records of what people have done on the site. The problem is that TorrentSpy doesn't keep user logs. So Columbia's lawyers came up with a freaky, technically dubious argument. They claimed that TorrentSpy had technically been keeping logs anyway, because user data passed through the website's computer's RAM—the part of the computer's memory that never gets written to disk and saved. The mere fact that the data had flashed through the RAM was enough to make it discoverable, claimed the lawyers.
But all that stuff in RAM was gone. So how to get it back? Columbia's lawyers told the judge that the owners of TorrentSpy could start keeping user logs during the discovery process and, in essence, re-create the missing logs. This was hugely controversial, because discovery is only supposed to apply to already-existing evidence. You can't order witnesses or defendants to start gathering data today for you to subpoena in the future. But the judge, Jacqueline Chooljian, went for Columbia's argument about the RAM. If the data had been in RAM for even a nanosecond, it existed in the past and was therefore subject to discovery.
The ramifications of this decision are far-reaching indeed. If the California ruling holds—it's in the appeal stage right now—Columbia may have created a legal loophole that allows lawyers to order people to generate new evidence during discovery. Electronic Frontier Foundation attorney Fred von Lohmann, who has been following the case, told me via email, "Because the ruling is based on the notion that ephemeral RAM copies are 'records' subject to preservation and production in litigation, it reaches deep into many businesses. For example, if you have a VoIP-based phone system (where conversations appear momentarily in RAM in your data center), are you responsible for recording every phone call for potential disclosure in litigation? What about IM conversations? Does everything created by a computer become a 'producible' record, just because it's digital and therefore must rely on RAM?"
While the case is on appeal, TorrentSpy won't have to start tracking its users. But if the appeal fails, TorrentSpy will have to spy on its customers to produce evidence. There is one hopeful sign: The judge has requested that TorrentSpy not hand over the unique IP addresses of its customers in logs, so the evidence can't be used to go after individuals. However, the precedent of asking companies to create logs as evidence remains in place.
Does this mean that the discovery process could become a way to wiretap parties to a lawsuit? After all, as von Lohmann points out, VoIP companies preserve phone conversations in RAM for a few brief seconds. One could easily imagine a plaintiff arguing that a VoIP company should start keeping audio files of all the phone calls between two parties to a case, since those audio files should have existed before. As a result, the plaintiff will have access to everything those parties say to each other after the lawsuit has been brought. Unfair? You bet. Legal? According to Judge Chooljian, yes.
If you're worried about government-issued wiretap orders, maybe it's time to start worrying about Hollywood-issued ones, too.
Annalee Newitz (firstname.lastname@example.org) is a surly media nerd who has a hell of a lot of information about you stored in her short-term memory.
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