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RAM Ruling Portends a New e-Discovery Brawl
Magistrate Judge Jacqueline Chooljian's ruling in late spring required TorrentSpy, a widely used indexing Web site that provides users with forums for comment and operates on a peer-to-peer protocol, to turn over customer data only ephemerally kept in its computers' random access memory, or 'RAM.' The ruling could result in floods of similar requests in other civil cases, according to Ira Rothken, the Novato, CA-based, attorney for the TorrentSpy Web site.
This is the first case Rothken says he could find where a court considered transient RAM data to be something discoverable. Any company currently being sued ' even before any liability has been found ' could end up having to collect and turn over RAM data at great cost, Rothken says.
'Lawyers will be flinging around preservation letters, coming up with all kinds of creative ways to tell the other to preserve RAM,' he opines. 'That would cause huge economic implications. If it's not changed, it can create e-discovery chaos.'
Chooljian's order was stayed as of late June, pending TorrentSpy's appeal.
Some Pre-Previews
Six movie studios filed suit against TorrentSpy for alleged copyright infringement in February 2006. While TorrentSpy does not directly offer copyrighted video files to people who come to the site, it acts as a search engine that speeds users' attention and access to those files. The Motion Picture Association of America ('MPAA') believes that such sites contribute to, encourage and profit from piracy.
That being the case, the plaintiffs are seeking the RAM data to find out more about the kinds of files visitors to the site are seeking. Jenner & Block and Loeb & Loeb are representing the studios, and referred questions to the MPAA.
The MPAA's Web site, at www.mpaa.org, in late June featured four articles that define movie theft, explaining which methods of movie downloading are legal and which are not, and telling visitors that law-enforcement authorities worldwide had seized 81 million counterfeit DVDs since last year. The site also invites Web-site visitors to join the fight against movie piracy by filling out a Web form on which they can report piracy ' with details of the alleged violations, and information, such as the street or intersection in a particular city where the piracy, ranging in type from broadcast to parallel import to signal piracy, occurred.
Computers store data in RAM so it can be quickly accessed while the computer is carrying out other processes. When the processes users are engaged in are completed or the computer is shut down, the data in RAM is overwritten or deleted.
The RAM data would be relevant because it would show that TorrentSpy 'is used overwhelmingly for infringement,' says Elizabeth Kaltman, an MPAA spokeswoman.
'The data would show the number of requests, for torrent files corresponding to the studios' works, and the dates and times of such requests which demonstrates exactly how TorrentSpy is used to facilitate massive copyright infringement,' she says, adding that Chooljian's order required that the RAM data be encrypted so that customers' names would not be revealed.
Server Shell Game
TorrentSpy is based in Nevis, a Caribbean island, and its servers are in the Netherlands. Even though data about past visitors to the site no longer exists, Chooljian's order will require the site to record such data from now on.
That is particularly disturbing to Fred Von Lohmann of the Electronic Frontier Foundation ('EFF'), a San Francisco-based, technology and legal-issues watchdog that guards people's online privacy. He sees the possibility that companies that conduct business online might have to adjust their privacy policies and start gathering additional information about their customers simply because their company has been sued.
Privacy being the vital concern to online consumers that it is, this ruling would give plaintiffs lots of power to mess with an adversary's privacy policies ' and, consequently, mess with their business ' before any alleged wrongdoing has been proven to be true or not.
Privacy Advocates Rally for a Cause
'I think everyone acknowledges that litigation is already burdensome to ongoing businesses,' von Lohmann says. 'The last thing we want is discovery intruding even more.'
The Los Angeles magistrate's order, as e-discovery practitioners and e-commerce counsel might easily guess, has privacy watchdogs concerned.
The court countered TorrentSpy's arguments that saving the RAM information violated the company's privacy-policy, users' First Amendment rights, the Stored Communications Act, the Wiretap Act and the Pen Register Statute. The court said the laws and policies the defendant cited didn't apply because, primarily, the information that the Web site collects is within the company's control, can be produced under proper discovery rules, and because the order mandates not disclosing users' identifications and masking their IP addresses. As for the Wiretap Act, the court ruled that the Web site is accessing stored information, not information in transmission, as the Wiretap Act stipulates.
On June 22, the EFF asked the appeals court to overturn Chooljian's order.
'This unprecedented ruling has implications well beyond the file sharing context,' EFF staff attorney Corynne McSherry says in a statement on the EFF's Web site. 'Giving litigants the power to rewrite their opponent's privacy policies poses a risk to all Internet users.'
The statement adds that the judge 'incorrectly reasoned' RAM data on TorrentSpy's Web servers are 'electronically stored information' that is stored data subject to disclosure under the amended Federal Rules of Civil Procedure ('FRCP').
The EFF says that Chooljian's decision 'could reach every function carried out by a digital device' because they are for at least some time stored in RAM. Digital phone systems also record conversations in RAM.
'In the analog world, a court would never think to force a company to record telephone calls, transcribe employee conversations, or log other ephemeral information,' von Lohmann says in an EFF Web site statement. 'There is no reason why the rules should be different simply because a company uses digital technologies.'
But others in the legal community view Chooljian's order as just desserts for alleged copyright violators.
'The process, if affirmed, will ' allow the MPAA to close another avenue of intellectual-property abuse,' says Richard Charnley, chair of the entertainment department at Ropers, Majeski, Kohn & Bentley.
The court denied the plaintiff's requests for sanctions for the defendants' not keeping the sought data in a server log file, citing the FRCP safe harbor for routine business practices, and turned down the defendant's requests for attorney's fees.
Sidebar
Organizations Mentioned in This Article:
Electronic Frontier Foundation: www.eff.org
Jenner & Block: www.jenner.com
Loeb & Loeb: www.loeb.com
Motion Picture Association of America: www.mpaa.org
Ropers, Majeski, Kohn & Bentley: www.ropers.com
TorrentSpy: www.torrentspy.com
Jessie Seyfer writes for the ALM affiliate publication The Recorder. Michael Lear-Olimpi is Editor-in-Chief of e-Discovery Law & Strategy and its affiliate publication e-Commerce Law & Strategy. Reach him at [email protected]. Find a compendium of articles on electronic discovery and related issues, including building litigation-support teams, and establishing and implementing document-retention and -destruction, and litigation-hold policies, at our Web site. A federal magistrate's order that stops a Web site from routinely tossing relevant data could, if replicated, carry broad e-discovery implications.
Magistrate Judge
This is the first case Rothken says he could find where a court considered transient RAM data to be something discoverable. Any company currently being sued ' even before any liability has been found ' could end up having to collect and turn over RAM data at great cost, Rothken says.
'Lawyers will be flinging around preservation letters, coming up with all kinds of creative ways to tell the other to preserve RAM,' he opines. 'That would cause huge economic implications. If it's not changed, it can create e-discovery chaos.'
Chooljian's order was stayed as of late June, pending TorrentSpy's appeal.
Some Pre-Previews
Six movie studios filed suit against TorrentSpy for alleged copyright infringement in February 2006. While TorrentSpy does not directly offer copyrighted video files to people who come to the site, it acts as a search engine that speeds users' attention and access to those files. The Motion Picture Association of America ('MPAA') believes that such sites contribute to, encourage and profit from piracy.
That being the case, the plaintiffs are seeking the RAM data to find out more about the kinds of files visitors to the site are seeking.
The MPAA's Web site, at www.mpaa.org, in late June featured four articles that define movie theft, explaining which methods of movie downloading are legal and which are not, and telling visitors that law-enforcement authorities worldwide had seized 81 million counterfeit DVDs since last year. The site also invites Web-site visitors to join the fight against movie piracy by filling out a Web form on which they can report piracy ' with details of the alleged violations, and information, such as the street or intersection in a particular city where the piracy, ranging in type from broadcast to parallel import to signal piracy, occurred.
Computers store data in RAM so it can be quickly accessed while the computer is carrying out other processes. When the processes users are engaged in are completed or the computer is shut down, the data in RAM is overwritten or deleted.
The RAM data would be relevant because it would show that TorrentSpy 'is used overwhelmingly for infringement,' says Elizabeth Kaltman, an MPAA spokeswoman.
'The data would show the number of requests, for torrent files corresponding to the studios' works, and the dates and times of such requests which demonstrates exactly how TorrentSpy is used to facilitate massive copyright infringement,' she says, adding that Chooljian's order required that the RAM data be encrypted so that customers' names would not be revealed.
Server Shell Game
TorrentSpy is based in Nevis, a Caribbean island, and its servers are in the
That is particularly disturbing to Fred Von Lohmann of the Electronic Frontier Foundation ('EFF'), a San Francisco-based, technology and legal-issues watchdog that guards people's online privacy. He sees the possibility that companies that conduct business online might have to adjust their privacy policies and start gathering additional information about their customers simply because their company has been sued.
Privacy being the vital concern to online consumers that it is, this ruling would give plaintiffs lots of power to mess with an adversary's privacy policies ' and, consequently, mess with their business ' before any alleged wrongdoing has been proven to be true or not.
Privacy Advocates Rally for a Cause
'I think everyone acknowledges that litigation is already burdensome to ongoing businesses,' von Lohmann says. 'The last thing we want is discovery intruding even more.'
The Los Angeles magistrate's order, as e-discovery practitioners and e-commerce counsel might easily guess, has privacy watchdogs concerned.
The court countered TorrentSpy's arguments that saving the RAM information violated the company's privacy-policy, users' First Amendment rights, the Stored Communications Act, the Wiretap Act and the Pen Register Statute. The court said the laws and policies the defendant cited didn't apply because, primarily, the information that the Web site collects is within the company's control, can be produced under proper discovery rules, and because the order mandates not disclosing users' identifications and masking their IP addresses. As for the Wiretap Act, the court ruled that the Web site is accessing stored information, not information in transmission, as the Wiretap Act stipulates.
On June 22, the EFF asked the appeals court to overturn Chooljian's order.
'This unprecedented ruling has implications well beyond the file sharing context,' EFF staff attorney Corynne McSherry says in a statement on the EFF's Web site. 'Giving litigants the power to rewrite their opponent's privacy policies poses a risk to all Internet users.'
The statement adds that the judge 'incorrectly reasoned' RAM data on TorrentSpy's Web servers are 'electronically stored information' that is stored data subject to disclosure under the amended Federal Rules of Civil Procedure ('FRCP').
The EFF says that Chooljian's decision 'could reach every function carried out by a digital device' because they are for at least some time stored in RAM. Digital phone systems also record conversations in RAM.
'In the analog world, a court would never think to force a company to record telephone calls, transcribe employee conversations, or log other ephemeral information,' von Lohmann says in an EFF Web site statement. 'There is no reason why the rules should be different simply because a company uses digital technologies.'
But others in the legal community view Chooljian's order as just desserts for alleged copyright violators.
'The process, if affirmed, will ' allow the MPAA to close another avenue of intellectual-property abuse,' says Richard Charnley, chair of the entertainment department at
The court denied the plaintiff's requests for sanctions for the defendants' not keeping the sought data in a server log file, citing the FRCP safe harbor for routine business practices, and turned down the defendant's requests for attorney's fees.
Sidebar
Organizations Mentioned in This Article:
Electronic Frontier Foundation: www.eff.org
Motion Picture Association of America: www.mpaa.org
TorrentSpy: www.torrentspy.com
Jessie Seyfer writes for the ALM affiliate publication The Recorder. Michael Lear-Olimpi is Editor-in-Chief of e-Discovery Law & Strategy and its affiliate publication e-Commerce Law & Strategy. Reach him at [email protected]. Find a compendium of articles on electronic discovery and related issues, including building litigation-support teams, and establishing and implementing document-retention and -destruction, and litigation-hold policies, at our Web site.
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