July 31, 2007 10:18 AM PDT

TorrentSpy lawyer battling 'copyright extremism'

Ira Rothken is technology's answer to the radical lawyer, Silicon Valley's version of Johnnie Cochran or William Kunstler.

Tech start-ups sued by media conglomerates for copyright infringement typically call on Rothken, a medical researcher turned lawyer. He's made a name for himself by bucking entertainment empires and by backing long-shot copyright cases, such as those involving RecordTV, ReplayTV and MP3Board.com. His efforts have won him praise from the Electronic Frontier Foundation (EFF), the advocacy group that has become synonymous with user rights on the Web.

"Ira has a strong intuition for the little guy," said Fred von Lohmann, an EFF senior staff attorney. "He enjoys these uphill fights. I often refer people to him."

The 44-year-old Rothken is defending another back-against-the-wall company in a case that could set an important legal precedent. Last year, the Motion Picture Association of America (MPAA), the trade group that represents the top film studios, filed a copyright suit against TorrentSpy, a search engine often used by file sharers to locate pirated films. In May, a federal magistrate judge ordered the company to turn over user information stored in its servers' random access memory (RAM).

Ira Rothken
Ira Rothken

The courts have never before ruled that RAM, a computer's temporary memory, is a tangible document that must be produced and turned over to litigants in civil cases, according to legal experts. Rothken has filed an appeal, and on August 13 will try to persuade a U.S. District Court judge in Los Angeles to reverse the decision.

At stake is nothing less than Internet anonymity, say some legal experts. If companies can be compelled to turn over RAM any time they face a civil suit, then no U.S. Web site can ever again promise not to share user data, according to Rothken.

Rothken's chances of prevailing are about the same as they usually are in these cases. The odds favor the copyright owners, said Rothken. "Copyright law in this country is Draconian and dramatically skewed on the owner's side," he said.

Until recently, few lawyers would take these cases, said von Lohmann.

First, there's not much money in them. Start-ups typically don't have a lot to spend on legal fees. Then, there is the problem with understanding and then explaining often complicated technical issues to a judge. Finally, there are the opponents--usually crack entertainment lawyers working for the music or movie industries who are famous for going for the jugular.

Representatives from the MPAA and the Recording Industry Association of America (RIAA) declined to comment for this story.

Going up against big guns
For insight into how tough it is to oppose the entertainment sector, consider the conclusions of some long-shot copyright cases Rothken worked on: RecordTV and ReplayTV ran out of funds before their cases were heard, and MP3Board.com settled.

There's no telling whether the start-ups would have survived had their cases gone to trial, but Rothken argues that shouldering legal fees and bad press didn't help.

Applying financial pressure is only part of Hollywood's strategy, Rothken said. Another tactic is to sue founders as well as their companies. In 2000, the RIAA filed a copyright suit against MP3Board.com, a music-file search engine, as well as the company's founders.

Instead of risking their own income, the operators of MP3Board.com settled the case and decided to stop linking to MP3 files, Rothken said.

"I can't say what the MPAA's strategy is," said Gary Fung, founder of IsoHunt, a TorrentSpy rival and Rothken client who also is being sued by the MPAA for copyright infringement. "But they do know they have more time and money than we do."

Rothken isn't intimidated. According to von Lohmann, Rothken is sought after because he is affordable, creative and tough.

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They should put the RAM in an envelope and send it to the MPAA lawyers!
Does anyone here this "turn over what's in the RAM" business? How can it be turned over if the content changes millions of times a second and don't exist exept when the computer is on?

Should the telephone companies start recording all telephone calls because they might be ordered to turn over the content of the wires?
Posted by hadaso (468 comments )
Reply Link Flag
They should certainly RAM something somewhere relating to the MPAA. The MPAA stifle creativity and innovation. Why oh why didn't the Framers put in a constitutional clause to give the people the same protection from big business as they get from the state.
Posted by perfectblue97 (326 comments )
Link Flag
what's next are they going to go door to door to look at your computer.Years ago i had a tuntable and would copy music to my cassette deck,what's the difference.Movies and music can be had in many ways.Next they are going to be telling me i can't copy my 20 and 30 year old albums to tape or cd.
Posted by bwtanker (36 comments )
Reply Link Flag
You can and can't.
The Copyright law states that you can't copy someone's Intellectual property without their consent, so you can't, but it also says that you can make a copy for personal archival reasons. So you can. The question here is: How can they say that we can and can't on the same breath? It's either one or the other, how can it be both?
Posted by thedreaming (573 comments )
Link Flag
Where do record and film firms get their powers?
These industries get their immense, nasty, and overreaching
powers from congress. Which candidate for president believes that
the constitution does NOT empower congress to enrich and
empower the entertainment industry at the expense of consumers?
Only Ron Paul. So, vote!
Posted by nicmart (1829 comments )
Reply Link Flag
Ron Paul for president. If you don't vote for him, you have little basis for your complaints.

Of course, I just want to see copyright shrivel up and die, and will not cease my efforts until it does, but in the mean time, we should try to keep as many of our freedoms as possible.
Posted by ethana2 (348 comments )
Link Flag
Good question - bad answer
You've completely missed on your interpretation. They get their power from money. In other words, from us! We buy their product, they make billions and they funnel a small percentage (but still a lot of cash) straight into the pockets of Congress and the Senate and purchase representatives left and right.

Americans still seem to think they live in a Democracy - they are, of course, wrong. They live in a capitalistic state with some left-over trappings of Democracy still remaining, but make no mistake - the power lies in the hands that has enough money to buy politicians, and that means the movie studios, music industry, healthcare and insurance industries, big oil...

Until and unless a way is found to separate the lawmakers from the money, that's the way things will remain.
Posted by lorcro2000 (71 comments )
Link Flag
Subset of a bigger problem....
One real problem is how easy it is for wealthy parties to "win" court cases (force "settlements") solely because they can litigate the smaller party into bankruptcy. There should be a laws that mandate a level playing field, and keeping the legal budgets to something both parties can afford.
Posted by CagedAnimal (67 comments )
Reply Link Flag
that's justice for all for you
nuff said
Posted by dondarko (261 comments )
Link Flag
What the MPAA and RIAA are truly afraid of.
We are approaching a day when any random person will have the same creative and distributive tools that the big studios have. When that day comes, we will no longer need the gate keepers.
Posted by ralfthedog (1589 comments )
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