Media Wonk

Link This | Email this | Comments (0)

TorrentSpy gets terminated - December 18, 2007

The MPAA is claiming a major victory in its litigation against TorrentSpy, the BitTorrent indexing site it sued earlier this year. Invoking a rarely used authority, the federal district court judge in the case terminated the suit before trial, in effect entering a default verdict in favor of the studio plaintiffs. Under the termination ruling, TorrentSpy is automatically liable for copyright infringement, as charged by the studios, and the case proceeds to the remedy phase, where damages will be assessed.

"The court’s decision is a significant victory for MPAA member companies and sends a potent message to future defendants that this egregious behavior will not be tolerated by the judicial system,” MPAA director of worldwide anti-piracy operations John Malcolm said in a statement. "The sole purpose of TorrentSpy and sites like it is to facilitate and promote the unlawful dissemination of copyrighted content. TorrentSpy is a one-stop shop for copyright infringement and we will continue to aggressively enforce our members’ rights to stop such infringement."

The termination ruling reflected the court's evident pique at TorrentSpy over its failure to produce user records sought by the studios in the discovery process, and which the court had ordered the defendant to turn over. TorrentSpy and its attorneys had already been fined $30,000 by the judge for violating a court order. The records in dispute included users' IP addresses and user postings to the TorrentSpy web site. TorrentSpy claimed it could not turn over the records because it did not retain them.

"The court clearly recognized that defendants engaged in evidence destruction because they knew that such evidence would prove damaging to them," Malcolm claimed.

Yet, while the judge clearly saw things the studios' way, the case could still produce an interesting appeal. TorrentSpy's attorney Ira Rothken claims that what the court saw as destruction of evidence, his client sees as protecting the privacy of its users, and he vows to appeal to the Ninth Circuit once a final judgment is reached in the remedy phase.

"There's an important legal question here," Rothken told Media Wonk. "Does a search engine have to retain consumer data in a litigation if doing so conflicts with its privacy policy? There's a tension here between the privacy of users and my client's privacy policy, and the needs of discovery. And there really isn't a lot of clarity of case law on the question."

According to Rothken, TorrentSpy does not, as a matter of course, retain the user information sought by the MPA and the court. "We made the decision not to retain the information based on our privacy policies," Rothken said. "The court disagreed with that decision but we think the court was wrong. The termination sanction was completely disproportionate."

In the meantime, Rothken noted, it will be "business as usual" for TorrentSpy. The site had already severed U.S. users' access to the search engine in response to the litigation, but it continues to be available to users outside the U.S.

"We don't believe the court's jurisdiction extends outside the U.S. so the finding of liability doesn't apply to our international access."

[Digital Copyright]  [Legal]  [Streams & Downloads]   LEAVE A COMMENT