Case Update: Columbia Pictures v Bunnell

A few weeks ago, I wrote about a California magistrate in California who ruled on behalf of the motion picture industry and issued new precedent which claimed that IP addresses stored only in RAM were subject to preservation for discovery (text of decision). At that time, I wrote:

The curious part about this ruling has nothing to do with the MPAA or TorrentSpy. The real issue, and much bigger, is the precedent set by the lower court. If this ruling is to stand, for the first time ever, temporary data in RAM would be considered under the law “œStorage” and subject to subpoena. It does not take a whole lot of imagination to extrapolate how government and complainants can get access to information that they really shouldn’t have access to.

I’ve been paying attention to the “details” here and yesterday I received an email from an EFF.org attorney noting that the EFF has filed an amicus brief in District Court urging the judge to overturn the ruling. The hearing will probably be late in July sometime.

A portion of the text of the brief (located here) is as follows:

If allowed to stand, this Order would mark a radical expansion of the scope of federal electronic discovery obligations, far beyond anything contemplated by the drafters of Rule 34. Virtually every business in the United States relies on digital technologies for all kinds of communications. And virtually every function carried out by those technologies depend on and results in the temporary creation of RAM data that is not ordinarily retained. The, the order threatens actual and potential litigants with the specter of having to capture and compile an avalanche of RAM data that would otherwise be automatically overwritten in the ordinary course of computer processing. Further, the court’s expansive reading of Rule 34 undermines the right to read, speak, and associate anonymously online by making it impossible for businesses to stand behind strong privacy policies intended to foster those constitutionally protected activities. As a result, the Order destabilizes the carefully crafted balance that Congress and the courts have erected in the discovery context over the past two decades. Finally, the Order unnecessarily puts federal discovery obligations on a collision course with federal electronic privacy laws.

And this, my friends, is a wonderful smackdown of the MPAA and demonstrates why they should keep making movies and leave the tech to those who are competent to know how the interwebs and computers work.

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Aaron Brazell

Aaron Brazell is a Baltimore, MD-based WordPress developer, a co-founder at WP Engine, WordPress core contributor and author. He wrote the book WordPress Bible and has been publishing on the web since 2000. You can follow him on Twitter, on his personal blog and view his photography at The Aperture Filter.

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