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IP/Entertainment Case Law Updates

Columbia Pictures, Inc. v. Bunnell, C.D. California

A district court held, in a case of first impression, that information stored in a computer’s random access memory (RAM) is “electronically stored information” under Federal Rule of Civil Procedure 34 and denied the defendants’ motion to review an order to produce server log data. This is one of the first decisions to hold that information in RAM is subject to Rule 34 since the rule was amended in 2006.

Plaintiff motion picture studios filed a copyright infringement suit against operators of a web site called TorrentSpy. The web site features a search engine that allows users to locate and download dot-torrent files which are particularly useful for large files such as movies. A magistrate judge ordered the defendants to produce activity logs from their computer servers that would show the IP address of users of the web site who request dot-torrent files, the identity of the dot-torrent files requested, and the dates and times of such requests. (The magistrate judge also ordered that the IP addresses be masked or encrypted so that they could not be used, at this stage of the litigation, to identify individuals.) The defendants filed a motion for review of the order, claiming, among other things, that the activity logs resided temporarily in the random access memory (RAM) of the servers and were therefore not “electronically stored information” for Rule 34 purposes. The court rejected this argument and held that such data was subject to discovery under Rule 34.

Federal Rule of Civil Procedure Rule 34 was amended in 2006, and the court relied on the Notes of the Advisory Committee to the 2006 Amendments which make it clear that the definition of electronically stored information “was intended to be read expansively to include all current and future electronic storage mediums.” The court wrote that “[i]nformation in the RAM of defendants’ computers ‘can be obtained’ by defendant. It is undisputed that the Server Log Data plaintiffs seek can be copied from RAM in defendants’ computers and produced to plaintiffs. Rule 34 requires no greater degree of permanency from a medium than that which makes obtaining the data possible.” The court also relied on the Ninth Circuit’s decision in Mai Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (1993), a copyright infringement case which held that a software program in RAM was “fixed in a tangible medium of expression” which is a prerequisite for determining copyright infringement.

The defendants also argued that there were reasonable alternative means to obtaining the activity logs, but the court noted that the plaintiffs were not just seeking the IP addresses and titles of the dot-torrent files. “[I]n order to prevail in this action, plaintiffs will need to establish that defendants were in some way responsible for the direct infringement of others. The Server Log Data will show that individuals access the defendants’ web site and request and download dot-torrent files, which can be used to obtain plaintiffs’ copyrighted works without permission. This link in the causal chain is essential to proving defendants’ responsibility for copyright infringement under theories of contributory infringement, vicarious infringement, and inducement.” The court also rejected the defendants’ argument that producing the server logs would violate users’ privacy expectations since identifying information would be masked or encrypted and because using a peer-to-peer network necessarily involves making one’s computer files available to others.