Columbia v. Bunnell

(aka Movies Studios v. TorrentSpy)

In this copyright infringement case, the district court issued a dangerous ruling compelling TorrentSpy to create and store logs of its users' activities as part of electronic discovery obligations in a civil lawsuit.

TorrentSpy was a popular search engine that indexed materials made publicly available via the Bit Torrent file sharing protocol. TorrentSpy had never logged its visitors' Internet Protocol (IP) addresses. Notwithstanding this explicit privacy policy, a federal magistrate judge ordered TorrentSpy to activate logging and turn the logged data over to the studios who were the plaintiffs in the copyright case.

The magistrate judge incorrectly reasoned that, because the IP addresses existed in RAM on TorrentSpy's webservers, they were "electronically stored information" that had to be collected and turned over to the studios under the rules of federal discovery.

EFF and CDT filed an amicus brief urging the district court judge to overrule the magistrate judge's order. The brief noted that the decision could reach every function carried out by a digital device. Every keystroke at a computer keyboard, for example, is temporarily held in RAM, even if it is immediately deleted and never saved. Similarly, digital telephone systems make recordings of every conversation, moment by moment, in RAM.

The district court judge declined to overrule the magistrate judge's order. Four months later, the judge granted so-called "terminating sanctions" against TorrentSpy based on her findings of discovery abuses. As a result, the district court ultimately entered a huge judgment against TorrentSpy.

TorrentSpy has appealed that judgment. In the appeal proceedings, EFF, CDT and Public Knowledge have filed an amicus brief, again directed to the RAM/logging issue. Taking no position on the terminating sanctions order, which raises many questions based on the particular facts of this case, the amici have asked the Ninth Circuit Court of Appeals to vacate the logging order. That order has dangerous implications that stretch far beyond the TorrentSpy case.