MPAA accuses TorrentSpy of concealing evidence

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

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

Jacqueline Chooljian, a federal 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 Association 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. In its privacy policy, TorrentSpy pledges not to collect any personal information about users except when they "specifically and knowingly provide such information."

But user data was 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.

Concealed evidence?
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.

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 company to produce documents already in possession. It did not ask for the creation of new records.

But 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 and that 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 in appeal, it 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.