A federal judge in Los Angeles ruled recently that a computer server’s RAM (random-access memory) is a tangible document that can be stored and must be turned over in a lawsuit. The judge is an idiot.
The case is about copyright infringement. The Motion Picture Association of America (MPAA) is trying to force TorrentSpy, a file-sharing site, to turn over data about visitors to their website. TorrentSpy replied that they don’t keep logs on their users – they are merely an intermediary, allowing data to pass through their website unscreened. They essentially said that they have no data to turn over. Unhappy with that answer, Judge Jacqueline Chooljian ordered TorrentSpy to begin logging user information and to turn that data over to the MPAA.
Unfortunately, the only way that the judge can make that order is to make some real leaps of logic. Companies are required to cooperate with fact-finding requests for documents. That’s what the whole “discovery” thing is about. Our judicial system is based on the assumption that if we can get all the facts on the table, we can quickly figure out who’s right, who’s wrong and how to make the victim whole. (Remember that this is a very different standard from the criminal “innocent until proven guilty” rule.) If you have a document that might be relevant to the case, you are required to produce it to the other side and to the court.
There are a few limits to that broad discovery, however. You can hold back documents (or parts of documents) that are attorney-client privileged or that contain confidential information like SSNs, medical details, etc as long as those details are not relevant to the case. You also can not be compelled to produce documents you don’t have. Courts are not supposed to be able to force you to create new records or documents just to respond to a discovery request.
TorrentSpy does not log user transactions during their normal operations. They do so to protect users’ privacy and because they have no operational need for the data in their normal course of business. MPAA argues that it also makes it easier for people who download pirated material to work in the shadows. They may be right. Regardless, TorrentSpy argued that requiring them to turn on logging is the same as requiring them to begin creating new documents just for this case. From a legal point of view, they’re right.
The judge got around this by arguing that the data already exists in the computer’s RAM. Therefore, she is not asking them to create new documents, merely to produce existing data in a more usable form. You can read the original order here. She does cite some other Ninth Circuit decisions involving RAM but, in my opinion, she is either misreading or misapplying the underlying facts.
RAM is not and can not be considered a “document” for the purposes of eDiscovery. RAM is the ephemeral memory that the computer uses to make calculations and to quickly access the data in other places. Think of RAM as the one that you carry in your head when adding a column of digits. (The data on your hard-drive may hold the result of your calculation in a spreadsheet but that’s a completely different kind of memory. The hard-drive data generally is reasonably accessible.) There is no possible way to record the billions of transactions per second that flash through the RAM of even a small computer. Attempting it would consume more permanent memory than exists in the world. And, by the way, writing all that content also requires transactional decisions and data that pass through RAM. The act of recording it spoliates it.
Okay. The judge is not really an idiot. She is seeking a justification to force cooperation from a company that’s not really playing fair. She wants them to turn on logging. Logging is cheap and easy – at least compared to most other electronic discovery activities. From a social policy point of view, I’m torn. TorrentSpy probably should be cooperating and not being stupid about the “costs of logging” and the applicability of Dutch privacy law. On the other hand, TorrentSpy is not being accused of any direct misdeeds. They are being pulled in as a third-party in MPAA’s attempt to sue their own customers. MPAA’s heavy-handed approach is not winning them any friends. Whichever side you agree with, though, the judge’s contortions about the technological facts of RAM to make her rationalization will get used as precedent outside this narrow circumstance. As the saying goes, “Bad facts make bad law.”
The judge’s decision is already being appealed and has been stayed pending that decision. Her decision has been upheld once but appeals continue. On both technological and legal grounds, I sincerely hope that her decision is overturned. Congress needs to address the problem of compelling cooperation from companies like TorrentSpy but they need to do it cleanly – a new law, not judicial twisting and rationalization.