Thursday, June 28, 2007

TorrentSpy discovery requirement could impact Net as a whole

There is a relatively obscure case going on in California about electronic record keeping and discovery. Back on Dec. 1, 2006 federal courts had adopted a rule that effectively increased retention requirements of employers on email and various other e-communications, making them subject to discovery requirements in federal litigation. For some years, remember, some companies had told employees it was better not to keep unnecessary emails and other papers around so they could never be subpoenaed. This seems to have changed. There also seems to have been some complicated changes in federal civil rule procedure 34. I’m not sure how closely these are connected (readers can comment).

The case involves a ruling by a judge that TorrentSpy activate logging of IP addresses and turn them over to movie studios in a lawsuit involving alleged copyright infringement. It’s rather complicated. But EFF is maintaining that a precedent might be set that requires unprecedented record keeping by search engine companies and ISPs for ordinary web accesses (outside of the "Shawn Fanning" world of P2P). We already saw a controversy over this during the recent COPA trial. Such requirements could raise the price of Internet services and barrier to entry of many businesses or individuals. They would also seem to have a bearing on all the recent debates about Network Neutrality and stories that the United States is unable to keep up with other countries (like Japan) in access speed.

This issue should not be confused with United States Code 2257, having to do with record keeping by websites of actors in adult entertainment.

EFF report on amicus brief, June 24.

PDF text of amicus brief

Discussion of Rule 34
by Atkinson-Baker, court reporters.

Cornell law school link on Rule 34.

Earlier blog posting on record keeping.

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