June 8, 2007 7:28 PM PDT

TorrentSpy ordered to start tracking visitors

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.

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29 comments

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Does the judge have the authority?
It seems to me that this judge is asking the defendant to intentionally CREATE evidence that does not currently exist, to bolster the case of the RIAA. This is a direct interference with an existing contractual business relationship between torrent and it's customers. The request would remove the primary motivator of torrents customers to continue doing business with them. Without the expected security of their "non-tracking" policy, a mass exodus to another non-tracking site would occur, effectively putting torrent out of business. The RIAA would constantly be chasing after other websites, playing a game of cat and mouse that they could never win. Unfortunately, the music industry does not understood that it is no longer in control of the game. The consumer no longer wants label produced and created cd's that are sold through retail outlets for 18 dollars that only have 1 or 2 good songs. Sites like torrent's, are the consumers extended middle finger to the recording industry. An industry that has been slow to recognize its own demise, and only creates more nails in it's coffin with over use of the RIAA and it's gestapo tactics.
Posted by alarmlv (8 comments )
Reply Link Flag
Is the RIAA part of the Mafia?
Just like the Mafia, the RIAA has no actual product. They are the middle men, interested only in protecting their "turf" and to those "stealing" their music, etc. (that they don't create (the artists create them, and even if the artist is long dead, the RIAA continues to protect "their" interests)), they are bullied into giving in to these strongarm-tactic "businessmen."

As long as there is no hue and cry by the people, the government will allow these middlemen to continue their fear tactics, and the RIAA will have no fear of its demise.
Posted by B. Arnold (1 comment )
Link Flag
What a crock of crap
First of all, if people didn't want Major label product, then they wouldn't be stealing it. Secondly, if there's only 1 or 2 good songs, they could buy them from some file site. Personally, I'm not sure how it is that I manage to find major label CD's (which may or may not be successful among the general public) that are great, while everyone else seems to find only crap CDs).

Thirdly, Where the heck do you buy CDs? Do you purposely go to the most expensive shop so that you can say that CDs cost MSRP?

Ever hear of deepdiscount.com? Most new releases these days are available for under $13.00.

I'm no fan of the RIAA, but quit trying to act like it's your God given right to steal, simply because the RIAA act like schmucks. You want to protest the labels? Don't just quit buying it. Quit listening to their product. Of course that sort of protest might require a sacrifice on your part, and I suspect the reality is if illegal downloading was made impossible tomorrow, you'd be at the local CD shop buying crappy CDs.

That said, I do find it troubling that the RIAA can force a site to track it's customers, even if virtually every download is illegal.
Posted by notgonnatellya (65 comments )
Link Flag
What they dont realize...
is that by doing this, they will eventually drive everyone towards TPB, or another very large offshore tracking site. And, since it seems that TPB has some massive project in the works to anonymize all sharing, this will be the end of the fight against file sharing.
Posted by jjesusfreak01 (83 comments )
Reply Link Flag
just use a proxy
there are any number of web based proxies that would make it safer to use torrentspy if they do comply with the court order.
Posted by irmrbean (1 comment )
Reply Link Flag
Your missing the point.
We are upset about this not because we are afraid will be tracked.. we are upset because the court should not have the authority to do this at all. They can't force every website to monitor their users.

"Yeah dude, just use a proxy." is a poor way to protect your rights.
Posted by Solaris_User (267 comments )
Link Flag
just use a proxy
Yes, it will work but your download speed will decrease and certain sites require authentic IP
Posted by martch (1 comment )
Link Flag
what if the proxy operator is sued ?
-
Posted by My-Self (242 comments )
Link Flag
Dangerous precedent
It is quite common for judges to order websites to preserve
evidence, ie. logfiles of user activity and IP addresses. However,
this is judge is attempting to force a defendant to change their
logging procedures, in violation of their stated privacy policy.
TorrentSpy does not keep logs of user activity (yet). Should this
order be enforced, it could really impact overall privacy on the
Net, especially if coupled with gag orders, thereby preventing
sites from informing users about the required logging.

<a class="jive-link-external" href="http://blog.ironkey.com" target="_newWindow">http://blog.ironkey.com</a>
Posted by Dave_IronKey (12 comments )
Reply Link Flag
confused?
While I agree completely that it is wrong I differ in the reasoning. A Judge can order logging as part of a settlement to monitor compliance but this is DISCOVERY. Discovery is to gather evidence from prior to the date of filing the suit so you may prove your case. Discovery is not for forcing someone to manufacture this evidence in the future. A lawsuit is for past wrongs and discovery is for past evidence. There is no such thing as "sue it forward".

The Judge has his head in the dark(and it probable dont smell to good) except that our judicial system does stink like dog poo lately. But that is because it now bought and paid for by corporations just like Congress is bought and paid for.
Posted by CNET BITES (18 comments )
Link Flag
I don't like it....
but, I have to say that I think the judge may just be on the inside of
the outskirts of what is a legal order. This is because torrentspy
and similar sites provide a service that is primarily used to support
the commision of a crime. Regardless of how you feel about the
RIAA, pirating music is a crime in and of itself that is tantimount to
physical theft under the law. So, I think that this may be a grey
area. It is definately a debacle that I am going to watch play out.
In the mean time, if you want a torrent you had better get it now.
Posted by BrandonEubanks (33 comments )
Reply Link Flag
Crowbars can be used
in the commission of a crime, but retailers are not required to track their sales.

Regaurdless of the percentage, some of the file trading going on is not illegal.
Posted by PzkwVIb (462 comments )
Link Flag
Tracking Visitors
This looks like the situation in IRAQ...
Some very schmart people think with their butt again.
Either the internet is the most democratic invention in human history and stays that way, with the good and the bad (jing/jang) or everything is under control of some more or less democratic government... The judge must be republican and acts without the consequences, and maybe has to go back to law school to study cause and effect.
This ruling with its long term consequences may well disrupt all e-commerce/trading, etc.
Posted by DeVizardofOZ (34 comments )
Reply Link Flag
Tracking Visitors (Cuase and Effect)
This looks like the situation in IRAQ... Go in like a big Tyranno Saurus Rex, create havoc, scare the poop out of everyone, and breeding V-Raptors.

Some very schmart people think with a (Bush) butt again.

Either the internet is the most democratic invention in human history and stays that way, with the good and the bad (jing/jang) or everything is under control of some more or less democratic government...

The judge must be republican, acts without thinking of consequences.

This ruling with its long term consequences may well disrupt e-commerce/trading, etc. If P2P is going to be against the law, then even handing a banana to a friend could become an issue.

HAHA
Posted by DeVizardofOZ (34 comments )
Reply Link Flag
Isn't this both Entrapment and violation of 5th Amendment rights?
Wouldn't requireing a company to log it's activities in order to use it against it by another party in court constitute both entrapment *and* a violation of the right to avoid self-incrimination?

I mean, first off, they're being taken to court for alleged infringing activity done in the PAST, so the burden of proof is on the plaintiff, and not the defendant, so they have to SHOW that they have been infringing copyright laws, not make the judge order the defendant to LOG future activity that could be then USED AGAINST THEM?

To use an example:
Let's say a guy is selling pamphlets that show people how to obtain an illegal copy of a book. The guy selling the pamphlets is NOT selling the book. He's only selling instructions on HOW to steal the books in question.

The bookmaker goes to the judge and gets the judge to force the defendant to *continue his activities, but NOW he must write down the name and address of the people who he gives the pamphlets to, and then give that list back to the judge and plaintiff.*

If that isn't a 5th Amendment violation, I don't know what is.
Posted by Weezuldk (6 comments )
Reply Link Flag
A "Goddamned Piece of Paper"
December 12 2005

?Last month, Republican Congressional leaders filed into the Oval Office to meet with President George W. Bush and talk about renewing the controversial USA Patriot Act,? writes Doug Thompson for Capitol Hill Blue. ?GOP leaders told Bush that his hardcore push to renew the more onerous provisions of the act could further alienate conservatives still mad at the President from his botched attempt to nominate White House Counsel Harriet Miers to the Supreme Court.? Thompson reports the following exchange:

?I don?t give a *******,? Bush retorted. ?I?m the President and the Commander-in-Chief. Do it my way.?

?Mr. President,? one aide in the meeting said. ?There is a valid case that the provisions in this law undermine the Constitution.?

?Stop throwing the Constitution in my face,? Bush screamed back. ?It?s just a ********* piece of paper!?

?I?ve talked to three people present for the meeting that day and they all confirm that the President of the United States called the Constitution ?a ********* piece of paper.?? Thompson comments
Posted by My-Self (242 comments )
Link Flag
Not the websites
It is not the admins that are cuasing the problems but the users. We will not sue the camara makers if a person takes child porn with it. That makes no sence to cause problems with makers of tool that can be used for good becuse people are abusing it. They should not be forced to go agianst there word in there TOA. If they realy wanted to stop this "illegal" stuff they would make every on have encryption codes and DS so that every site will have signture of that person on it so no mistakes get made.
Posted by primerpuffer (1 comment )
Reply Link Flag
I agree
both sides make valid points, however those in opposition to the order are much more valid. This is indeed a clear violation of the 1st and 5th amendments, especially since it would indeed cause torrentspy to produce evidence for the plaintiff that has never even been in existence.

Also, the replys pertaining to the AHRA of 1992 raise excelent points. we pay royalties for services that we might not even use, such as burning music to a CD, or DVD. All that a CD is is a device for storing digital information, and since it can not differentiate between pirated media and a word document, we are forced to pay a "just in case" fee. This is no different than a hard drive, except that a hard drive is not covered under the AHRA of 1992 to my knowledge

People don't pay such a fee on printers because they "might" print a copyrighted book with it, or a copyrighted score of music with it, and we shouldn't pay such a fee on CD/DVD burners either.
Posted by crimius (6 comments )
Reply Link Flag
Perhaps the answer is boycott
The RIAA and the MPAA are continually fighting what is happening in the real world -- they are mired in their own view of how things ought to be. They want to force "fair use" out the window and force people to be paying more and more often. I've lived through the development of the internet. Companies will either adapt or perish. At this point, I would prefer both the RIAA and the MPAA to perish. They offer nothing of any real import to the world. The movies and the music of popular culture has degraded to the point where it is no longer of any value in lifting the moral fabric of society. Do we really need to see more gratuitous sex, experience more senseless violence, hear more profanity? I think not. If we stopped watching movies that have any association with the MPAA and stopped listening to music associated with the RIAA we could likely put such a crimp in them that they would go out of business. If 3 months doesn't do it, then extend to 6.

I'm tired of gestapo tactics -- especially when there are alternatives. (Weird Al, thanks for "Don't Download This Song" and all the rest that find a way to make money outside the dieing business model of vinyl and VCR.)

The copyright laws are supposed to support innovation. We need innovation in the business model of artistic production. Necessity is the mother of invention, and the only way to make it necessary is to find a way to let the old model die as it should. Artists need to make money, distribution channels do not.
Posted by bwithnel (6 comments )
Reply Link Flag
 

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