July 31, 2007 10:18 AM PDT
TorrentSpy lawyer battling 'copyright extremism'
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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).
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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