"This decision could reach every function carried out by a digital device," said Fred von Lohmann, a senior staff attorney with the EFF. "Every keystroke at a computer keyboard, for example, is temporarily held in RAM, even if it is immediately deleted and never saved. Similarly, digital telephone systems make recordings of every conversation, moment by moment, in RAM. "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. There is no reason why the rules should be different simply because a company uses digital technologies," von Lohmann said."This ruling actually reaches beyond the Internet," he said. "Any company that finds itself in a lawsuit could potentially have to retain a lot more documents than they ever thought they might. "One example I use is if you believe the magistrate judge in this casethat any information that exists in the RAM of a computer potentially must be preserved and produced to the adversarythen what do you do about VOIP [voice over IP] phone systems? Every conversation in an IT-based phone system is going to exist in RAM for at least a split second. Does that mean now that you have to record every phone conversation?" Instant messaging has become a de facto business tool, as well. "Every instant message communication creates copies at least temporarily. Do we now have to log every employee who uses IM to communicate with anybody inside or outside the company?" von Lohmann asked. The EFF filed a 26-page amicus curiae (friend of the court) brief (PDF) on behalf of TorrentSpy, drafted by EFF attorney Corynne McSherry, von Lohmann and Palo Alto, Calif., attorney Tom Moore. "Sheer common sense demands that courts not elide the distinction between ephemeral and stored data," the EFF contended in the brief. "Any construction of the electronic rules that would encompass transient RAM data could easily lead to absurd results." The MPAA and Columbia Pictures, however, say they are pinpointing TorrentSpy in this case, and no other company or individual. "The purpose of this lawsuit is to put TorrentSpy out of the business of inducing massive copyright infringement," Kaltman said. "The court order is specifically limited to the facts of this case and does not break any new ground. The concept of RAM as stored information is well-established under the law. This is not the first time that RAM data or issues have been used in civil litigation .... Any other decision would allow blatant infringers to dictate what evidence they have to produce simply based on where and how they choose to store it." The courts decision is carefully tailored to this case and does not mean that every company faces the same preservation obligation, Kaltman said. Von Lohmann and the EFF arent so sure that the ramifications of this ruling would be limited to TorrentSpy, Columbia Pictures and the MPAA. "The expense of being in litigation is already so staggering for big companies that have these obligations to retain potentially millions of documents, that if the ruling stands, this could potentially make that even more expensive for them," von Lohmann said. "Its a mistake to view this case as being just about the Internet. I dont think it is, but potentially it could have implications for a lot of companies in a lot of arenas. Everyone uses digital technology now, so were all in it together." Check out eWEEK.coms for the latest news, reviews and analysis on enterprise and small business storage hardware and software.
Von Lohmann told eWEEK that he is hopefuland believes it is likelythat the magistrates ruling will be overturned.