TorrentSpy Denied Review on E-Discovery Ruling in MPAA Case

TorrentSpy had an uphill battle getting Chooljian’s ruling overturned. The standard for review is a ruling that’s “clearly erroneous or contrary to law,” and magistrate judges have “broad discretion” on discovery disputes, Cooper said.

Even the definition of “stored” cited by amicus filers indicates that RAM is covered under e-discovery law, Cooper’s Friday order said, citing a Random House Dictionary definition of the term as meaning that stored information “need not even be subsequently accessed or used.” A 2006 update to federal discovery rules expressly said that “any type of information that is stored electronically” can be discoverable, even given “future changes and developments” in technology, she said. TorrentSpy and allies said the six hours that information sometimes spends in RAM was too brief to qualify as discoverable. Ninth Circuit Court of Appeals precedent indicates that as long as stored information has “more than transitory duration,” and can be accessed and copied, it’s discoverable, Cooper said.

Chooljian’s ruling doesn’t mean businesses suddenly must store vast quantities of information, Cooper said. It requires only that defendants, “after the issuance of a court order, and following a careful evaluation of the burden to these defendants of preserving and producing the specific information requested in light of its relevance and the lack of other available means to obtain it, begin preserving and subsequently produce a particular subset of the data in RAM” possessed by TorrentSpy.

Cooper acknowledged “creative legal challenges” that TorrentSpy raised but shot them all down. The magistrate’s order didn’t eliminate TorrentSpy’s potential First Amendment or Electronic Communications Privacy Act defenses, Cooper said. Perhaps more importantly, she knocked down TorrentSpy’s Stored Communications Act and Wiretap Act objections. The order didn’t require TorrentSpy to have “unauthorized access” to data, as the SCA prohibits, Cooper said. The site is the “intended” recipient of information in RAM, with users “voluntarily” providing their IP addresses and packet information to TorrentSpy, she said. The Wiretap Act applies only to “acquisition contemporaneous with transmission,” not stored data, Cooper said. Federal law on use of pen registers doesn’t apply because they don’t store the “contents” of communication, she said. TorrentSpy had said the statute barred its collection of information such as .torrent files. And MPAA couldn’t simply have used its own “honeypots,” computers intended to track illegal activity by participating in BitTorrent “swarms,” to find infringers, because MPAA’s case depends on TorrentSpy’s contributory infringement and inducement, Cooper said.

MPAA isn’t asking TorrentSpy to hand over names or identifying information, Cooper said. The group wants only data showing that anonymous people accessed .torrent files from TorrentSpy searches, and the order limits discovery to that information. Illegal file-sharing enjoys no First Amendment protections, Cooper said, and even users who share legally “have little to no expectation of privacy because they are broadcasting their identifying information” to everyone in the swarm, she said. There can be no “chill” to TorrentSpy users’ speech.

Finally, Cooper defanged a foreign-law challenge by TorrentSpy. The site, whose servers are located in the Netherlands, cited a Dutch court ruling that it said would block MPAA’s request. But the decision in BREIN v. UPC Nederland pertained only to “identifying information,” Cooper said.

The ruling had swift apparent result. TorrentSpy said Monday that it stopped letting U.S. visitors do searches due to an “uncertain legal climate” on user privacy and “apparent tension” between U.S. and European Internet privacy laws. U.S. visitors can still get to TorrentSpy’s home page. But when they try to search for files, they get a page explaining the legal quandary for the site. The page, and an identical post at the company’s TorrentSpy vs. the MPAA blog, say the decision “was NOT compelled by any Court.” TorrentSpy refers users to several other sites, but none are well-known P2P search engines.

TorrentSpy never has logged what users do on the site, so the U.S. rule “really comes out of a practical notion that the vast majority of its users are outside of the United States,” Ira Rothken, lawyer for Valence Media, told us. TorrentSpy would rather “err on the side of caution and protect the integrity of its site and its users’ privacy.” Rothken said TorrentSpy will submit a motion for summary judgment in 30 to 60 days. The site is “cautiously optimistic,” since no U.S. case law indicates search-engine liability for linking to .torrent files, he said.

Major studios should capitalize on “automated methods” for search and distribution, offering DRM-wrapped movies virally, if they want to crush piracy, not rely on centralized and so far unpopular destinations like Movielink, Rothken said. Movielink was sold this month to Blockbuster for $6.6 million (WID Aug 10 p3). There’s “little to no downside” to seeding P2P networks with protected films that require payment to download, he said.