Movie studios to judge: TorrentSpy defies court order

To avoid having to turn over user information to the motion picture industry, 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 to see information about 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 their filing. "(The) conduct amounts to willfulness and bad faith."

The lawsuit, first filed a year ago, accuses TorrentSpy of encouraging copyright violations.

On May 29, Jacqueline Chooljian, a federal magistrate judge in Los Angeles, ordered TorrentSpy to hand over information about user activity. Part of what the judge wanted was to identify the BitTorrent files that visitors requested and the dates and times of those requests.

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 that drew plenty of media attention, 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.

The film companies have asked the judge to impose evidentiary sanctions against TorrentSpy for not complying with the court order, according to the court filings. As part of the sanctions, the studios want the judge to establish for the record that the movies belonging to the studios found on TorrentSpy's site infringed on their copyright, and also find that the site has no "substantial noninfringing uses."

Should the judge agree to the sanctions she would effectively label TorrentSpy a pirate site. That would make it very difficult for TorrentSpy to prevail in its civil trial.

TorrentSpy executives said in court documents filed late Tuesday that the company's reasons for not turning over information are pegged to a few tweaks made to the site while the company's appeal was being heard.

Chief among the changes are that TorrentSpy stopped providing users with cached downloads of BitTorrent files, the technology favored by many for file sharing, according to court documents. This means that searches for BitTorrent files at TorrentSpy would return only links to third-party sites.

Clicking on those links would not ping TorrentSpy's servers, and as a result, none of the data that the film companies are after can be found in the company's RAM.

To the studios, TorrentSpy is trying to duck the judge's order.

"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," the film companies said in their filing with the court.

Rothken denied the allegation.

"The primary reason for the changes was to protect end-user privacy worldwide," Rothken said. "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."

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