I’ve been intrigued by the copyright infringement case that Columbia brought against the guys who run Web site TorrentSpy last year. The latest development in that case has the potential to change the way parties to a lawsuit gather evidence during its “discovery” period. Usually, you can only subpoena evidence that existed prior to the lawsuit during discovery. But in the TorrentSpy case, Columbia convinced a California judge that she should order TorrentSpy to create new evidence during discovery by saving data about their users that they hadn’t previously kept. Columbia’s lawyers argued that TorrentSpy had essentially already been saving this data because it flashed through their servers’ RAM — the part of computer memory that’s temporary and never gets saved to disk. So generating this new data was really more like recreating what should have already existed.
The judge’s ruling could open a door for plaintiffs to force, say, VoIP telephone companies to start saving audio files of people’s phone calls as evidence during discovery since those audio files existed briefly in RAM when they happened before the case was brought. In some ways, the ruling suggests that if you can save data on your users, you should — because if you don’t, a judge might order you to start. It’s a bizarre, wide-reaching decision that demonstrates a profound misunderstanding of technology and creates a dangerous loophole that allows parties to a case to spy on each other during the discovery process. Read my column to find out more creepy details and unintended effects of this weird copyright ruling.