[kictanet] Content - Regulatory, Legal and Jurisdiction issues

[Brian Longwe]

Let me post an interesting case there - both to challenge our  
thinking as well as highlight various regulatory and legal issues  
surrounding content.


Movie studios to judge: TorrentSpy defies court order
CNet.com, October 11, 2007
By Greg Sandoval
http://www.news.com/8301-10784_3-9795571-7.html

To avoid having to turn over user information to the motion picture  
industry, BitTorrent indexing service TorrentSpy cut off access to  
its site in the United States. Apparently, that wasn't enough to  
satisfy Hollywood.

According to documents filed with the court last week and reviewed by  
CNET News.com on Wednesday, the studios still want to see information  
about the site's visitors. Lawyers representing the studios--armed  
with a court order--say TorrentSpy has refused to hand over the data.  
Because of that, the movie sector wants the judge to throw the book  
at the company.

"(TorrentSpy) took steps to make the Server Log Data unavailable for  
the express purpose of avoiding compliance with the (court) order,"  
the movie studios said in their filing. "(The) conduct amounts to  
willfulness and bad faith."

The lawsuit, first filed a year ago, accuses TorrentSpy of  
encouraging copyright violations.

On May 29, Jacqueline Chooljian, a federal magistrate judge in Los  
Angeles, ordered TorrentSpy to hand over information about user  
activity. Part of what the judge wanted was to identify the  
BitTorrent files that visitors requested and the dates and times of  
those requests.

TorrentSpy executives told the judge that they never tracked  
visitors' activity. She responded by telling them to retrieve the  
information from their servers' random-access memory, or RAM.

In an unprecedented decision that drew plenty of media attention, the  
judge ruled that data found in RAM is a tangible document that can be  
stored and must be turned over in civil litigation. TorrentSpy argued  
that RAM is far too ephemeral to be considered "stored data."

In August, TorrentSpy appealed the decision but lost. The company  
then shut down access to U.S. residents. If TorrentSpy had no U.S.  
users, then there wouldn't be any information stored in the company's  
RAM under the judge's purview, legal experts said. Only data on  
International users would be logged and U.S. courts don't have  
authority over them.

But the studios didn't go away.

The film companies have asked the judge to impose evidentiary  
sanctions against TorrentSpy for not complying with the court order,  
according to the court filings. As part of the sanctions, the studios  
want the judge to establish for the record that the movies belonging  
to the studios found on TorrentSpy's site infringed on their  
copyright, and also find that the site has no "substantial  
noninfringing uses."

Should the judge agree to the sanctions she would effectively label  
TorrentSpy a pirate site. That would make it very difficult for  
TorrentSpy to prevail in its civil trial.

TorrentSpy executives said in court documents filed late Tuesday that  
the company's reasons for not turning over information are pegged to  
a few tweaks made to the site while the company's appeal was being  
heard.

Chief among the changes are that TorrentSpy stopped providing users  
with cached downloads of BitTorrent files, the technology favored by  
many for file sharing, according to court documents. This means that  
searches for BitTorrent files at TorrentSpy would return only links  
to third-party sites.

Clicking on those links would not ping TorrentSpy's servers, and as a  
result, none of the data that the film companies are after can be  
found in the company's RAM.

To the studios, TorrentSpy is trying to duck the judge's order.

"This claim should be seen for what it is: another illegitimate  
attempt by defendants to evade authority of this court and the May 29  
order," the film companies said in their filing with the court.

Rothken denied the allegation.

"The primary reason for the changes was to protect end-user privacy  
worldwide," Rothken said. "Web sites are allowed to evolve their  
technology during litigation especially if they evolve to protect  
user privacy. The irony here is that studios are blowing hot and  
cold. On one hand they asked in their lawsuit for TorrentSpy in  
essence to shut down U.S. traffic. When the company did, the  
plaintiffs complained that TorrentSpy is in violation for not  
supplying information under the log file order. They're never  
satisfied."

Just how long it will take for the judge to rule on the studios'  
application for sanctions is unclear. Rothken said he expects that  
the judge will call for more briefings.


  
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