Movie studios to judge: TorrentSpy defies court order

To avoid having to turn over user information to the motion picture industry, the 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 information on 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 documents filed with the court last week. "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."

TorrentSpy was ordered in May to begin tracking visitors' activity and collect information, such as what BitTorrent files users requested as well as the time and date of those requests. This would show whether TorrentSpy users were on the site for legal purposes or whether the service existed to enable piracy.

During the time a judge was reviewing TorrentSpy's appeal to overturn the order, company executives made some adjustments to the site.

Sometime in July, TorrentSpy stopped providing users with cached downloads of BitTorrent files, the technology favored by many for distributing large files over the Web and a favorite of the file-sharing community, according to court documents. This meant that searches for BitTorrent files at TorrentSpy would return only links to third-party sites.

Clicking on those links wouldn't ping TorrentSpy's servers, and as a result, none of the data that the film companies sought would be stored on TorrentSpy's RAM.

Was this an attempt by the company to evade the judge's order?

"The primary reason for the changes was to protect end-user privacy worldwide," said Ira Rothken, TorrentSpy's attorney. "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."

The studios first filed their copyright lawsuit against TorrentSpy last year.

On May 29, Jacqueline Chooljian, a federal magistrate judge in Los Angeles, ordered TorrentSpy to hand over information about user activity.

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, 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.

For not complying with the court order, Hollywood has asked the judge to impose evidentiary sanctions against the company, documents show. As part of the sanctions, the studios want the judge to rule that the movies belonging to the studios found on TorrentSpy's site infringed on their copyright. They also want the judge to find that the site has no "substantial noninfringing uses."

This would effectively label TorrentSpy a pirate site and make it very difficult for the company to prevail in its civil trial against the film industry.

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