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June 14, 2007
MPAA Gets "Weapon of Mass Discovery"
In attempting to prove that people using TorrentSpy are committing copyright infringement, the MPAA has convinced U.S. Magistrate Judge Jacqueline Chooljian that the contents of RAM memory are "tangible documents" that must be stored and turned over in a lawsuit.
The implications of this are potentially staggering and the order has been stayed pending appeal. Part of the complaint here is that this ruling would force defendants to create documents they would otherwise never have. That alone is unprecendented, to my knowledge. Additionally the implications for the use of all kinds of digital services are huge. Imagine applying this kind of logic to VoIP RAM traffic - who needs to bother with all that complicated paperwork for getting a wiretap?
Much of the concern is over the privacy implications. Many services, from FedEx and AmEx to Internet registrars offer the ability to do business transactions without revealing personal information. Entire businesses exist purely to act as trusted third parties so that people can be confident and confidential at the same time. If this ruling is upheld all that goes into the dumpster.
And while there are some standards to prevent discovery proceedings from turning into open-ended fishing expeditions, those standards are much looser and less subject to review than requests for subpoenas and other current legal methods of obtaining information in an adversarial proceeding. Creating this weapon of mass discovery would have the side effect of weakening all of those protections.
(In an interesting aside, the CNET story notes that the USD 2 billion figure of losses from online activity is merely an MPAA estimate, not the 'fact' that the LA Times story made it out to be. Shame on the Times for shoddiness - maybe they can take lessons from CNET.)
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