Torrentspy Lawsuit

TorrentSpy, a BitTorrent indexing site, was ordered last year to begin logging their server data, including user IP addresses, as part of discovery for a copyright infringement suit filed against them by the MPAA. Columbia Pictures Industries v. Bunnell, WL 2080419 (C.D.Cal. 2007). This is an interesting case not only because of the evidentiary issue (should a temporary file stored in RAM be considered a discoverable electronic document subject to preservation under Rule 34(a) of the Federal Rules of Civil Procedure), but also because of the user privacy concern. TorrentSpy attempted to argue that because its Privacy Policy unambiguously states that " will not collect any personal information about you except when you specifically and knowingly provide such information," they were precluded from preserving and producing such personal information about their users.

This argument was rejected on four grounds. First, because the terms of the privacy policy were entirely within TorrentSpy's control, it was insufficient to insulate them from their legal obligations under discovery. Second, it was not clear that "personal information" under TorrentSpy's privacy policy would in fact include IP addresses and search queries, and therefore the privacy policy might not prohibit the retention and production of the server log data. Third, to the extent that the privacy policy prohibited the disclosure of IP addresses, there was no violation because the IP addresses were to be masked before they were produced to the plaintiffs. Fourth, because the privacy policy advised users that it could be modified at any time, and the order was only forward-looking, there was nothing preventing TorrentSpy from modifying the privacy policy to allow them to comply with the order.

Interestingly, US users who try to search for a torrent on TorrentSpy now receive the following message:

TorrentSpy Acts to Protect Privacy
Sorry, but because you are located in the USA you cannot use the search features of the website.Torrentspy's decision to stop accepting US visitors was NOT compelled by any Court but rather an uncertain legal climate in the US regarding user privacy and an apparent tension between US and European Union privacy laws.

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