Monday, Aug 27, 2007    Text size: 

“TorrentSpy.com has a strong privacy policy protecting site users against the linking of personal identifying information to searches absent [of] user consent,” TorrentSpy stated on its blog. “TorrentSpy’s decision to stop accepting U.S. visitors was not compelled by any court, rather it arises out of an uncertain legal climate in the U.S. regarding user privacy and the apparent tension between U.S. and European Union Internet privacy laws.”

While TorrentSpy’s decision to block U.S. traffic was not forced upon it by the court, the decision does likely stem from recent developments in a lawsuit filed against the site by the Motion Picture Association of America last year.

Acting on behalf of Columbia Pictures and other major Hollywood studios, the MPAA filed suit against TorrentSpy in February 2006 alleging copyright infringement. The MPAA argued that TorrentSpy knowingly enables, encourages, induces and profits from “massive online piracy of plaintiffs’ copyrighted works” through the operation of its website.

In March, the MPAA filed a motion for an order requiring TorrentSpy to “preserve and produce certain server log data.” Specifically, the plaintiffs wanted TorrentSpy to log and produce data relating to the IP addresses of TorrentSpy users who request dot-torrent files, log the requests for the dot-torrent files themselves, and the dates and times of such requests.

In a ruling issued in late May, U.S. Magistrate Judge Jacqueline Chooljian found that data stored in a server’s random-access memory (RAM) “constitutes electronically stored information.” In the order, Chooljian ordered TorrentSpy to begin preserving data stored in its servers' RAM within seven days of the order’s issuance, but granted a stay to allow TorrentSpy to file an appeal.

Attorney Ira Rothken, who is representing TorrentSpy in the case, told XBIZ that while the case is ongoing and it is not yet clear whether Chooljian’s order to begin preserving RAM data will hold up on appeal, his clients decided to block U.S. traffic in order to ensure the privacy of their site’s users.

“TorrentSpy has a strong privacy policy against tying user data to the information and content the users are looking for, and [the concern is] whether a court can usurp that policy,” Rothken said. “TorrentSpy decided to err on the side of caution to stop access of U.S. users in order to protect the privacy of all its users.”

Rothken told XBIZ that most of TorrentSpy’s users are outside the U.S., with many located in countries that have stronger privacy provisions in place than those of the U.S.

According to Rothken, a U.S. Federal District Court has declined to hear TorrentSpy’s appeal of Chooljian’s order to begin preserving server RAM data, and TorrentSpy will now request permission to file an appeal with the 9th Circuit Court of Appeals.

Rothken told XBIZ he is “optimistic” that the 9th Circuit will hear the appeal because the RAM issue is a “case of first impression.” — meaning that no other court has reached a decision on the question of whether RAM data should be considered electronically stored information, and thereby something that is subject to discovery in a legal action.