TorrentSpy blocks US visitors

Stephen Withers
Tuesday, 28 August 2007 06:46

Your IT - Home IT

"This unprecedented ruling has implications well beyond the file sharing context," said EFF staff attorney Corynne McSherry. "Giving litigants the power to rewrite their opponent's privacy policies poses a risk to all Internet users."

As the EFF points out, allowing the order to stand could mean that parties to litigation could be compelled to keep all sorts of transient information: every keystroke, every digital phone conversation, and so on.

"In the analog world, a court would never think to force a company to record telephone calls, transcribe employee conversations, or log other ephemeral information," said EFF senior staff attorney Fred von Lohmann. "There is no reason why the rules should be different simply because a company uses digital technologies."

But according to the brief, "It is well-established, however, that courts may not compel the creation of documents to comply with a discovery demand" and "the unambiguous text of Rule 34 only permits the discovery of stored information - information retained by a business in the normal course of its operations."

At the time the original case was filed, von Lohmann observed that its "result could have important implications not just for torrent indexes, but for all online index and search services" as it appeared to be an attempt to get around the "safe harbour" clause in the Digital Millennium Copyright Act that shields indexes from copyright claims if they have a takedown procedure for references to allegedly infringing material.

TorrentSpy's decision is presumably intended to help remove its operations from US jurisdiction - if the servers and the users are outside the US, what business is that of a US court? The torrentspy.com domain is registered to Sharestream Ltd with an address asserted to be in Saint Helena (the country code shown in the whois record is SH), but that appears to be in Saint Kitts and Nevis (country code KN). Since the address is a PO Box, the actual business could be located anywhere. The only physical address iTWire could find on the TorrentSpy web site is the Culver City address of its agent for DMCA notification.