Wrong But Entirely Predictable

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From cnet news dot com:

Editors’ note: Since this story was published, CNET News.com has reviewed some of the documents relevant to the case. For more information, see “MPAA accuses TorrentSpy of concealing evidence.”

A court decision reached last month but under seal until Friday could force Web sites to track visitors if the sites become defendants in a lawsuit.

TorrentSpy, a popular BitTorrent search engine, was ordered on May 29 by a federal judge in the Central District of California in Los Angeles to create logs detailing users’ activities on the site. The judge, Jacqueline Chooljian, however, granted a stay of the order on Friday to allow TorrentSpy to file an appeal.

The appeal must be filed by June 12, according to Ira Rothken, TorrentSpy’s attorney.

TorrentSpy has promised in its privacy policy never to track visitors without their consent.

“It is likely that TorrentSpy would turn off access to the U.S. before tracking its users,” Rothken said. “If this order were allowed to stand, it would mean that Web sites can be required by discovery judges to track what their users do even if their privacy policy says otherwise.”

The Motion Picture Association of America, which represents Columbia Pictures and other top Hollywood film studios, sued TorrentSpy and a host of others in February 2006 as part of a sweep against file-sharing companies. According to the MPAA, the search engine was sued for allegedly making it easier to download pirated files.

Representatives of the trade group could not be reached for comment.

The court’s decision could have a chilling effect on e-commerce and digital entertainment sites, said Fred von Lohmann, an attorney with the Electronic Frontier Foundation. He calls the ruling “unprecedented.”

EFF, which advocates for the public in digital rights’ cases, is still reviewing the court’s decision, but von Lohmann calls what he’s seen so far a “troubling court order.”

This is believed to be the first time a judge has ordered a defendant to log visitor activity and then hand over the information to the plaintiff.

“In general, a defendant is not required to create new records to hand over in discovery,” von Lohmann said. “We shouldn’t let Web site logging policies be set by litigation.”

Many Web companies keep visitor logs, which can include Internet Protocol addresses, as well as other information. Some choose not to record this data, including EFF, von Lohmann said.

Naturally this abrogation of online privacy is driven by large corporate copyright holders, rather than any concern for Internet harassment victims. It would be wrong in either case; it’s just the inversion of priorities that I am questioning.

–Ann Bartow

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