1 Ira P.

Rothken (SBN #160029)

2 ROTHKEN LAW FIRM LLP
3 Hamilton Landing, Suite 280
3 Novato, CA 94949
4 Telephone: (415) 924-4250
Facsimile: (415) 924-2905
5
6 Attorney for Defendants
7
Justin Bunnell, Forrest Parker, Wes
Parker and Valence Media, Ltd.
8
9 UNITED STATES DISTRICT COURT
10 CENTRAL DISTRICT OF CALIFORNIA
11 COLUMBIA PICTURES INDUSTRIES, ) Case No. 06-01093 FMC
12 INC., DISNEY ENTERPRISES, INC., )
PARAMOUNT PICTURES ) DEFENDANTS’ FURTHER
13
CORPORATION, TRISTAR PICTURES, ) AND SUPPLEMENTAL
14 INC., TWENTIETH CENTURY FOX ) MEMORANDUM OF POINTS
FILM CORPORATION, UNIVERSAL ) AND AUTHORITIES IN
15
CITY STUDIOS LLLP, UNIVERSAL ) OPPOSITION TO
16 CITY STUDIOS PRODUCTIONS LLLP, ) PLAINTIFFS’ MOTION FOR
17 and WARNER BROS. ) AN ORDER (1) REQUIRING
ENTERTAINMENT INC., Delaware ) DEFENDANTS TO PRESERVE
18 corporations, ) AND PRODUCE CERTAIN
19 ) SERVER LOG DATA, AND (2)
Plaintiffs, ) FOR EVIDENTIARY
20
) SANCTIONS AND IN
21 vs. ) SUPPORT OF DEFENDANTS’
22 ) REQUEST FOR MONETARY
JUSTIN BUNNELL, FORREST PARKER, ) SANCTIONS
23 WES PARKER, individuals, VALENCE )
24 MEDIA, LLC, a corporation, and DOES 1- )
10, ) Date: April 3, 2007
25
) Time: 9:30 a.m.
26 Defendants. ) Ctrm: 20
27
)

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DEEND’TS’ FURTHER & SUPPL’TAL MPA IN OPPOSITION TO MOTION re SERVER LOG DATA
Columbia Pictures, et al. v. Bunnell, et al.
U.S. Dist. Ct., Central Dist Cal., No. CV 06-01093 FMC
 1 TABLE OF CONTENTS
2 I. Introduction............................................................................................................1
3 II. Response to the Court’s Inquiries.....................................................................1
4 A. Federal Statutes Protect the Privacy of the Information at Issue and
5 Strengthen Defendants’ Position as Guardians of that Information. ..................8
6 III. Conclusion .........................................................................................................15
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Columbia Pictures, et al. v. Bunnell, et al.
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 1 TABLE OF AUTHORITIES
2 CASES
3 Bohach v. City of Reno, 932 F. Supp. 1232 (D. Nev. 1996) ........................................14
4 FTC v. Netscape Communications Corp., 196 F.R.D. 559 (N.D. Cal. 2000) ..........9, 10
5 In Re Application of the United States of America for an Order Authorizing The
6 Use of a Pen Register And Trap On [xxx] Internet Service Account/User Name
7 [xxxxxxxx@xxx.com], 396 F. Supp. 2d 45, 47 (D. Mass. 2005) ..............................11
8 In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d 497 (S.D.N.Y. 2001) .......14, 15
9 In re Toys R Us, Inc., Privacy Litigation, MDL No. M-00-1381 MMC, Master File
10 No. C 00-2746 MMC, 2001 U.S. Dist. LEXIS 16947 (N.D. Cal. 2001)..................14
11 In re United States, 416 F. Supp. 2d 13 (D.C. Dist. Ct. 2006); In re United States,
12 460 F. Supp. 2d 448 (S.D.N.Y. 2006).......................................................................13
13 Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir. 2002) cert. den. 537
14 U.S. 1193 (2003) .........................................................................................................8
15 Konop, supra; Quon v. Arch Wireless Operating Co., Inc, 309 F. Supp. 2d 1204
16 (C.D. Cal. 2004) ........................................................................................................14
17 O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 44 Cal. Rptr. 3d 72 (6th Dist.
18 2006)..........................................................................................................................10
19 STATUTES
20 Fed.R.Civ.Pro. 34 .........................................................................................................15
21 Fed.R.Civ.Pro. 37(f) .......................................................................................................1
22 Pen Register Statute, 18 U.S.C. §§ 3121-3127...............................................8, 9, 10, 11
23 Stored Communications Act, 18 U.S.C. §§ 2701-2711 .......................................8, 9, 14
24 Wiretap Act, 18 U.S.C. §§ 2510-2522...................................................................passim
25
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DEEND’TS’ FURTHER & SUPPL’TAL MPA IN OPPOSITION TO MOTION re SERVER LOG DATA
Columbia Pictures, et al. v. Bunnell, et al.
U.S. Dist. Ct., Central Dist Cal., No. CV 06-01093 FMC
 1 I. Introduction
2 Pursuant to the Order of the Court dated March 21, 2007, defendants submit
3 this Further and Supplemental Memorandum of Points and Authorities in
4 Opposition to Plaintiffs’ Motion re Server Log Data.
5 Defendants also request that the Court allow defendants to cite Fed.R.Civ.Pro.
6 37(f), which was overlooked during the preparation of prior Memoranda, and which
7 provides:
8 (f) Electronically Stored Information. Absent exceptional circumstances,
9 a court may not impose sanctions under these rules on a party for failing
10 to provide electronically stored information lost as a result of the routine,
11 good-faith operation of an electronic information system.
12
13 II. Response to the Court’s Inquiries
14 The Court has presented five inquiries to defendants which are quoted and
15 answered herein.
16 “(i) whether defendants' website receives or possesses (even fleetingly,
17 and even if solely for the purpose of enabling the technical transfer of
18 data) the electronic data in issue (users' IP addresses, identification of
19 torrent file(s) downloaded/ uploaded, date/time of download/upload), and
20 if so, for how long, and if not, how, as a technical matter torrent files are
21 transmitted to/received from website users.”
22 As stated in defendants’ Joint Declaration of Justin Bunnell and Wes Parker
23 (“defendants’ Joint Declaration), ¶ 5.
24 “We currently use Windows IIS software which does indeed have the
25 ability to turn on “logging”. We have not turned on such logging to
26 date. If logging was turned on it would capture users’ IP address,
27 browser, links tied to the server, date and time of the visit, and click
28 events amongst other things. Without logging turned on the IP addresses
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 1 of users’ would likely be fleetingly present in Random Access Memory
2 (RAM) as a method of Internet communication. Regarding the
3 downloading of torrent files no IP address is obtained or was obtained to
4 date through logging or any other means. Since for potential downloads
5 Torrentspy.com provides search results that are hyperlinks to torrent
6 files located on third party servers or caching servers it does not receive
7 or possess even fleetingly users’ IP addresses related to such click
8 events. For uploads of torrent files Torrentspy.com obtains via
9 programmatic (non-logging technique) methods the users’ IP address
10 without the last octet along with the identification of the torrent file and
11 such files are then, via automated methods, sent to third party caching
12 servers.”
13 “(ii) whether the computer system on which defendants' website currently
14 operates has the capacity, if enabled, to log the electronic data in issue.”
15 As stated in defendants’ Joint Declaration, ¶ 6:
16 “Yes, logging of electronic data is possible, however, not in any
17 practical way in our current operations. We lease our systems from our
18 Internet Service Provider (ISP) LeaseWeb in Amsterdam, Netherlands,
19 and the equipment is located at the ISP’s secure plant. Any hardware
20 changes would need to be approved by LeaseWeb and be in conformity
21 with Netherlands law. (See Choice of Law provision from agreement
22 with LeaseWeb, attached as Exhibit A). The data at issue would
23 accumulate at the rate of about 30-40 gigabytes a day and we currently
24 have no way to store or record such data and we would have to add
25 substantial computing power, bandwidth, and server drive space.
26 Our servers are currently being driven to near their maximum
27 capacity. Logging would increase the demands put on the computer for
28 each message and the requirements for logging would constitute a
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 1 considerable increase of aggregate demand that would make it
2 impossible for us to sustain our current operations, just because of lack
3 of computational resources. We anticipate that the system will crash
4 several times a day if we are required to log the data in issue, in contrast
5 to the usual rate of about once a week.
6 Moreover, since defendants’ officers are not physically at the
7 server, saving log data would require an FTP download of the files from
8 the server. In our experience, it takes approximately 12 hours to
9 transfer 9 GB of data. At this rate it would be impossible to actually
10 download 30-40GB in a single download day. Assuming an FTP
11 download was accomplished or DVD’s were able to be burned at the
12 site of the servers, physical storage, would require approximately ten
13 DVDs to be burned and shipped on a daily basis from servers over seas,
14 requiring an unreasonable amount of processing/burning time and
15 human labor time.
16 In addition, any such logging would not likely show third party
17 server clickstream.”
18
19 “(iii) the technical degree of ease or difficulty to enable any such logging
20 function.”
21 As stated in defendants’ Joint Declaration, ¶ 7:
22 “Please see our response to (ii). Although activation of a logging
23 function would not be difficult, we would have to set up a new system
24 to record and store the data at issue. It is relatively easy to install the
25 software unit called a “logging function” in an operating system and
26 start it running, but this procedure only generates a data stream and says
27 nothing about recording or storing the data in the stream. We would
28 also have to adjust to operating at lower efficiency because of the
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 1 demands placed on the servers and we would have to decide how to deal
2 with the more frequent crashes.”
3
4 “(iv) the estimated cost (monetary, time, potential loss of
5 business/advertisers, other), and the basis therefor, to (a) enable any such
6 logging function; (b) store/maintain/back-up the data in issue for a one-
7 month period; (c) produce an electronic copy of such data without
8 redaction; and (d) redact users' IP addresses from such data and produce
9 an electronic copy of such redacted data.”
10 “Requiring defendants to enable a logging function would result
11 in irreparable harm to and loss of business. In particular, recording data
12 from a user’s web browser data stream would arguably make
13 defendants’ website and servers a “honey pot” or “phishing zone” for
14 companies that have shown a willingness to sue consumers via
15 relationships with the RIAA and MPAA and providing a ready site for
16 locating and obtaining personally identifying information of the users of
17 Torrentspy.com. We also have to comply with applicable law which
18 arguable includes compliance with our privacy policy, Federal law (e.g.
19 ECPA), State law, and the Privacy laws of the Netherlands which
20 require. Amongst other things, robust and specific notice and consent
21 (see e.g. the unofficial translation of the PERSONAL DATA
22 PROTECTION ACT at Article 8 attached as Exhibit B). Moreover, the
23 burden of having to give notice and obtain consent of users to collect
24 such data would be insurmountable. The sheer negative affect of such
25 steps would undoubtedly devastate defendants business, as it would be
26 exposed to significant liability risks, as, for example, AOL has
27 experienced in the recent class action case in which they accidentally
28 disclosed “Member Search Data” (without IP address) and were sued
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 1 (see Doe 1 v. AOL, LLC, U.S. District Court, Northern District of
2 California Case No. C 06-5866 SBA, attached as Exhibit C.)
3 Please see our responses to (ii) and (iii). To record and store the
4 data in issue for any length of time would require us to set up a new
5 server system, possibly in a new location. Even if one could be set up
6 in our present location at our current ISP, re-design of the existing
7 system and installation of new equipment would require a major
8 commitment of money and time. Crudely estimating, two weeks of
9 work and over $10,000 would be required. If we were to terminate our
10 present arrangement with the ISP and set up our own system, the cost
11 would be in excess of $50,000 but the transition might be easier.
12 An additional installation would be required to produce electronic
13 copies of the data, either with or without redaction of IP addresses.
14 Additional equipment would be required to perform redaction by
15 machine, assuming that software can be written or purchased that scans
16 the data stream and successfully filters IP addresses. The cost for an
17 installation for production of copies would be perhaps 10% to 20%
18 added to the cost for the recording and storing facility, with a higher
19 cost for production with redaction.
20 Regarding “redaction” the above burdens would still be immense, notice
21 would still likely need to be given since privacy can be impacted via the
22 search query itself, and there would be no practical usefulness of the
23 data in this case. In fact plaintiffs have not established they cannot get
24 data via alternative methods.
25 As to further issues regarding the potential loss of
26 business/advertisers and other losses, please see the response to
27 inquiry (v), below.”
28
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 1 “(v) the degree to which defendants' expressed concerns regarding the
2 privacy of their website users would be impacted if the IP addresses of
3 such users were ordered to be redacted/not produced.”
4 Defendants’ state their positions in their Joint Declaration, ¶ 9.
5 “If the IP addresses of users were ordered to be redacted or not
6 produced in an order to receive and store server log data, a substantial
7 amount of defendants’ privacy concerns would be alleviated. The
8 process would have to be automated in order to be practical, however.
9 The information remaining to defendants would have no relevance in this
10 case, though, as there would be no way to know what the associated
11 torrent files pointed to without IP addresses. Moreover, plaintiffs claim
12 that the alleged infringement of the past is what is at issue, and collecting
13 IP addresses now does not show historical infringement. International
14 privacy laws including US and Netherlands would have to be complied
15 with along with our privacy policy requiring robust notice and consent –
16 this would have a chilling effect on users who would pick another search
17 engine such as Google who did not have such burdens.
18 Even with the redaction of IP addresses, we are nonetheless opposed
19 to being compelled to serve as investigators for plaintiffs and the MPAA
20 in any capacity whatsoever or as to any information whatsoever unless
21 the MPAA complies with the current DMCA policy. Our opposition
22 does not depend on what information is recorded and produced to
23 plaintiffs. Obviously, reports that include the IP addresses of visitors are
24 more offensive than reports that do not include such IP addresses.
25 Overriding that distinction, being required to record, store and produce
26 any reports whatsoever of any activities of website visitors whatsoever,
27 including the server log data at issue, with or without IP addresses, would
28 violate the privacy of our website visitors and would violate our privacy
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 1 policy as well.
2 We understand that we are being sued as a representative of the
3 BitTorrent community that plaintiffs call “the BitTorrent network” and
4 we understand that “the BitTorrent network,” as defined by plaintiffs,
5 includes (1) individual persons using BitTorrent technology to exchange
6 files, the “users;” (2) operators of .torrent search engines like ours; and
7 (3) operators of BitTorrent tracker sites. Speaking as representatives of
8 the BitTorrent community, with the expert practical knowledge of and
9 experience in Internet development and BitTorrent technology that is
10 needed to and that does make Torrentspy a top website, and based just on
11 what we read online, members of the BitTorrent community are
12 collectively opposed to investigations, legal threats and legal actions
13 instigated by plaintiffs and the MPAA. Based just on what we read
14 online, members of the BitTorrent network are collectively opposed to
15 being tracked online or to having any of their activity recorded and/or to
16 having information about them gathered and/or aggregated by large, rich
17 and/or powerful interests, like the plaintiffs. Nothing in our personal
18 contacts with other members of the BitTorrent community or drawn from
19 our other sources of knowledge creates any doubt about these facts.
20 Our expectation is that the typical visitor to the Torrentspy
21 website would be opposed to having any record whatsoever of his
22 or her visit, and especially so if any part of that record were to be
23 disclosed to plaintiffs and/or the MPAA. Our expectation is that
24 we would suffer a substantial loss of traffic and a correspondingly
25 loss of income (that is based on traffic) just by reason of being
26 compelled to record visits of users, assuming one operated with
27 integrity and thus that visitors know that their activities are being
28 recorded and that records of their visit will be produced to
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 1 plaintiffs during copyright litigation. Our expectation is that an
2 Order compelling us to record information about visits to our
3 website and to deliver the records to plaintiffs during copyright
4 litigation would be seen by many as a stigma and that many would
5 be disaffected by it. We would be placed at a competitive
6 disadvantage with respect to our competitors in a business where
7 such a competitive disadvantage can quickly become fatal. Indeed
8 those with knowledge can perform searches to try to demonstrate
9 “infringement.” We cannot foresee the degree of disaffection, e.g.,
10 by advertisers who might no longer want to deal with us, or the
11 degree of loss, given the uniqueness of the situation, but an
12 economic catastrophe cannot be excluded.”
13
14 In addition to the foregoing, defendants rely on the following point and the
15 additional authorities cited in support thereof.
16 A. Federal Statutes Protect the Privacy of the Information at
17 Issue and Strengthen Defendants’ Position as Guardians of that
18 Information.
19 The Electronic Communications Privacy Act ("ECPA") is divided into Title I,
20 commonly known as the Wiretap Act, 18 U.S.C. §§ 2510-2522, and Title II,
21 commonly known as the Stored Communications Act, 18 U.S.C. §§ 2701-2711.
22 Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir. 2002) cert. den. 537
23 U.S. 1193 (2003). Defendants also rely on the Pen Register Statute, 18 U.S.C. §§
24 3121-3127.
25 Defendants submit that the Wiretap Act prohibits the disclosure of the
26 contents of communications in transit, as here, (18 U.S.C. § 2511(1)(a), (c) and
27 (d)), that the Stored Communications prohibits the disclosure of contents of
28 communications “or other information pertaining to a ... customer” (18 U.S.C. §
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 1 2702(a)), and that the Pen Register Statute prohibits the disclosure of identities of
2 persons communicating with a targeted person except to a government attorney
3 acting under stringent judicial oversight (18 U.S.C. § 18219(a)). There is no
4 exception from these prohibitions for civil discovery, although an online service
5 provider might be expected to act in compliance with a directive from a
6 governmental officer or in response to a court order, e.g., obtaining immunity from
7 a civil lawsuit. See 18 U.S.C. §§ 2511(a)(2), 2703(c), 2707(e) and 18 U.S.C. §
8 3124(e).
9 In FTC v. Netscape Communications Corp., 196 F.R.D. 559 (N.D. Cal. 2000),
10 Judge Patel denied the FTC’s Motion to Compel seeking production of documents
11 from the service provider that would have revealed the identities of individuals
12 known by screen names and that would have stated the account holders' names,
13 addresses, telephone numbers and billing records, and the length and type of their
14 accounts. The FTC contended that the subpoena was justified by 18 U.S.C. §
15 2703(c)(1)(C), part of the Stored Communications Act.
16 “Section 2703(c)(1)(C) provides in pertinent part that ‘[a] provider of
17 electronic communication service’ shall disclose private customer
18 information to a government entity only in response to ‘an administrative
19 subpoena authorized by a Federal or State statute or a Federal or State
20 grand jury or trial subpoena’ served by the government entity.’” 196
21 F.R.D at 560.
22 The Court rejected the FTC’s contention:
23 “The court cannot believe that Congress intended the phrase ‘trial
24 subpoena’ to apply to discovery subpoenas in civil cases, thus permitting
25 government entities to make an end-run around the statute's protections
26 through the use of a Rule 45 subpoena. Section 2703(c)(1)(C) is certainly
27 not an exemplar of clear drafting. However, given the weight of the case
28 law and the relevant canons of statutory construction, the court declines
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 1 the FTC's invitation to interpret the phrase ‘trial subpoena’ as
2 encompassing a discovery subpoena duces tecum issued under Rule 45.”
3 196 F.R.D. at 561.
4 In O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 44 Cal. Rptr. 3d 72 (6th
5 Dist. 2006), the Court relied on FTC v. Netscape and held that the Stored
6 Communications Act (“SCA”) prohibited plaintiff Apple Computer from serving
7 subpoenas on service providers to discover the identities of persons who had
8 published Apple’s “inside information.” The Court closely examined the SCA and
9 determined that disclosures of the identities of such persons came within the
10 prohibitions of the SCA and that civil discovery was not authorized by any of the
11 express exceptions.
12 “Apple would apparently have us declare an implicit exception for civil
13 discovery subpoenas. But by enacting a number of quite particular
14 exceptions to the rule of nondisclosure, Congress demonstrated that it
15 knew quite well how to make exceptions to that rule. The treatment of
16 rapidly developing new technologies profoundly affecting not only
17 commerce but countless other aspects of individual and collective life is
18 not a matter on which courts should lightly engraft exceptions to plain
19 statutory language without a clear warrant to do so.”
20
21 The Pen Register Statute, 18 U.S.C. §§ 3121-3127, generally prohibits (except
22 under specifically-defined oversight), the attachment of equipment that will record
23 identities of persons communicating with a targeted individual. A "pen register" is
24 defined as "a device or process which records or decodes dialing, routing,
25 addressing, or signaling information transmitted by an instrument or facility from
26 which a wire or electronic communication is transmitted, provided, however, that
27 such information shall not include the contents of any communication." 18 U.S.C.
28 § 3127(3) (emphasis added). Similarly, a "trap and trace device" refers to "a device
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 1 or process which captures the incoming electronic or other impulses which identify
2 the originating number or other dialing, routing, addressing, or signaling
3 information reasonably likely to identify the source of a wire or electronic
4 communication, provided, however, that such information shall not include the
5 contents of any communication." 18 U.S.C. § 3127(4) (emphasis added).
6 “There can be no doubt that the expanded definition of a pen register,
7 especially the use of the term ‘device or process’, encompasses e-mail
8 communications and communications over the internet. In other words,
9 internet service providers can use a ‘process’ which ‘. . . records or
10 decodes dialing, routing, addressing, or signaling information transmitted
11 by an instrument or facility from which a wire or electronic
12 communication is transmitted.’ Similarly, internet service providers can
13 use a ‘process’ which ‘. . . captures the incoming electronic or other
14 impulses which identify the originating number or other dialing, routing,
15 addressing and signaling information reasonably likely to identify the
16 source of a wire or electronic communication.’
17 In Re Application of the United States of America for an Order Authorizing
18 The Use of a Pen Register And Trap On [xxx] Internet Service Account/User Name
19 [xxxxxxxx@xxx.com], 396 F. Supp. 2d 45, 47 (D. Mass. 2005). The Court allowed
20 the devices to be installed, but took care to enforce the rule that “the information
21 shall not include the contents of any communication" as required by 18 U.S.C. §§
22 3127(3) and 3127(4), quoted above.
23 “An obvious problem occurs when one considers e-mail. That portion of
24 the ‘header’ which contains the information placed in the header which
25 reveals the e-mail addresses of the persons to whom the e-mail is sent,
26 from whom the e-mail is sent and the e-mail address(es) of any person(s)
27 ‘cc'd’ on the e-mail would certainly be obtainable using a pen register
28 and/or a trap and trace device. However, the information contained in the
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 1 ‘subject’ would reveal the contents of the communication and would not
2 be properly disclosed pursuant to a pen register or trap and trace device.
3 After all, '“contents”, when used with respect to any wire, oral, or
4 electronic communication, includes any information concerning the
5 substance, purport or meaning of that communication.’ Title 18 U.S.C. §
6 2510(8).” Id., at 48, footnote omitted.
7
8 The Court further addressed the issue:
9
10 The use of a pen register to obtain the internet addresses accessed by a
11 person presents additional problems. The four applications presently
12 before me seek the Internet Protocol (IP) addresses which are defined as
13 a "unique numerical address identifying each computer on the internet."
14 The internet service provider would be required to turn over to the
15 government the incoming and outgoing IP addresses "used to determine
16 web-sites visited" using the particular account which is the subject of the
17 pen register.
18 If, indeed, the government is seeking only IP addresses of the web sites
19 visited and nothing more, there is no problem. However, because there
20 are a number of internet service providers and their receipt of orders
21 authorizing pen registers and trap and trace devices may be somewhat of
22 a new experience, the Court is concerned that the providers may not be as
23 in tune to the distinction between "dialing, routing, addressing, or
24 signaling information" and "content" as to provide to the government
25 only that to which it is entitled and nothing more.
26 Some examples serve to make the point. As with the "post-cut through
27 dialed digit extraction" discussed, supra, a user could go to an internet
28 site and then type in a bank account number or a credit card number in
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 1 order to obtain certain information within the site. While this may be said
2 to be "dialing, routing, addressing and signaling information," it also is
3 "contents" of a communication not subject to disclosure to the
4 government under an order authorizing a pen register or a trap and trace
5 device.
6 Second, there is the issue of search terms. A user may visit the Google
7 site. Presumably the pen register would capture the IP address for that
8 site. However, if the user then enters a search phrase, that search phrase
9 would appear in the URL after the first forward slash. This would reveal
10 content -- that is, it would reveal, in the words of the statute, ". . .
11 information concerning the substance, purport or meaning of that
12 communication." Title18 U.S.C. § 2510(8). The "substance" and
13 "meaning" of the communication is that the user is conducting a search
14 for information on a particular topic.
15 396 F.Supp.2d at 48-49.
16 Accordingly, the Court ordered:
17 “The disclosure of the ‘contents’ of communications is prohibited
18 pursuant to this Order even if what is disclosed is also ‘dialing, routing,
19 addressing and signaling information.’
20 “Therefore, the term ‘contents’ of communications includes subject
21 lines, application commands, search queries, requested file names, and
22 file paths”
23 Id. at 50.
24 See also In re United States, 416 F. Supp. 2d 13 (D.C. Dist. Ct. 2006); In re
25 United States, 460 F. Supp. 2d 448 (S.D.N.Y. 2006).
26 In other words, suppose a criminal investigation were to be directed at an
27 online provider and a government attorney were to request a Court Order for the
28 installation of a “pen register” at the provider’s ISP, recording and storing the
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DEENDANTS’ SUPPLEMENTAL MPA IN OPPOSITION TO MOTION re SERVER LOG DATA
Columbia Pictures, et al. v. Bunnell, et al.
U.S. Dist. Ct., Central Dist Cal., No. CV 06-01093 FMC
 1 “server log data” requested here by plaintiffs. Such a Court Order could go so far
2 as to order the recording of IP addresses of those who communicated with the
3 provider but not the contents of the communications. The word “contents” should,
4 on the foregoing authority, be construed so as to include the name of the .torrent file
5 downloaded or uploaded or search terms related thereto. Hence, the Pen Register
6 Act would prohibit disclosure of both the IP Address of a visitor to a website
7 coupled with identification of any .torrent file uploaded or downloaded (as
8 requested by plaintiffs) or the search terms entered by the visitor.
9 All of the foregoing Acts recognize the central and privileged place occupied
10 by the online service provider. Necessarily, the provider must have access to the
11 protected information for the purposes intended by the user or customer. Providers
12 also make additional uses of such information. Consequently, the providers cannot
13 be held liable under the Acts so long as they conform to certain legal requirements.
14 In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d 497 (S.D.N.Y. 2001); In re
15 Toys R Us, Inc., Privacy Litigation, MDL No. M-00-1381 MMC, Master File No. C
16 00-2746 MMC, 2001 U.S. Dist. LEXIS 16947 (N.D. Cal. 2001); Bohach v. City of
17 Reno, 932 F. Supp. 1232 (D. Nev. 1996); Konop, supra; Quon v. Arch Wireless
18 Operating Co., Inc, 309 F. Supp. 2d 1204 (C.D. Cal. 2004).
19 Accordingly, the providers themselves are provided with exceptions for
20 application of the Acts. Section 2511(2)(a)(i) exclupates:
21 “an operator of a switchboard, or an officer, employee, or agent of a
22 provider of wire or electronic communication service, whose facilities are
23 used in the transmission of a wire or electronic communication, to
24 intercept, disclose, or use that communication in the normal course of his
25 employment while engaged in any activity which is a necessary incident
26 to the rendition of his service or to the protection of the rights or property
27 of the provider of that service.”
28 Under 18 U.S.C. § 2701(c)(1), the prohibitions against unlawful access to
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DEENDANTS’ SUPPLEMENTAL MPA IN OPPOSITION TO MOTION re SERVER LOG DATA
Columbia Pictures, et al. v. Bunnell, et al.
U.S. Dist. Ct., Central Dist Cal., No. CV 06-01093 FMC
 1 stored communications do not apply to conduct of or authorized by “a person or
2 entity providing a[n] ... electronic communications service.” See also 18 U.S.C. §
3 2510(15) (“ ‘electronic communication service’ means any service which provides
4 to users thereof the ability to send or receive wire or electronic communications,”
5 exactly the acts defendants are charged with).
6 The ECPA would be turned on its head if express protections for providers of
7 online services, like defendants, were to be disregarded.
8 Please note that 18 U.S.C. § 2510 (17) defines "electronic storage" as:
9 "(A) any temporary, intermediate storage of a wire or electronic
10 communication incidental to the electronic transmission thereof; and
11 (B) any storage of such communication by an electronic communication
12 service for the purpose of backup protection of such communication."
13 See In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d 497, 511 (S.D.N.Y.
14 2001).
15 We note that such a definition is not congruent with the purposes and needs of
16 Fed.R.Civ.Pro. 34 so as to provide a definition of “electronically stored
17 information” as used in the Rule. Such a definition would put an impossible burden
18 on service providers. The ECPA would again be turned on its head if its expansive
19 definition of “electronic storage” meant to protect privacy were to be used to invade
20 privacy as plaintiffs are seeking. The Advisory Committee overseeing amendments
21 to Rule 34 had good reasons to disregard the definition of electronic storage in the
22 SCA and to define standards set forth expressly in the Notes to the Rule.
23
24 III. Conclusion
25 For the foregoing reasons, defendants respectfully request that the Court
26 deny Plaintiffs’ Motion for an Order Requiring Defendants to Preserve and Produce
27 Certain Server Log Data etc. and each part of said Motion.
28
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DEENDANTS’ SUPPLEMENTAL MPA IN OPPOSITION TO MOTION re SERVER LOG DATA
Columbia Pictures, et al. v. Bunnell, et al.
U.S. Dist. Ct., Central Dist Cal., No. CV 06-01093 FMC
 1 Dated: March 27, 2007 Respectfully submitted,
2 ROTHKEN LAW FIRM, LLP
3
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5 By: __________________________
6 Ira P. Rothken, Esq.
7 Attorney for Defendants
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DEENDANTS’ SUPPLEMENTAL MPA IN OPPOSITION TO MOTION re SERVER LOG DATA
Columbia Pictures, et al. v. Bunnell, et al.
U.S. Dist. Ct., Central Dist Cal., No. CV 06-01093 FMC
 1 PROOF OF SERVICE
2 I am over the age of 18 years, employed in the county of Marin, and not a party to the
within action; my business address is 3 Hamilton Landing, Suite 280, Novato, CA 94949.
3
4 On March 27, 2007, I served the within:

5 DEFENDANTS’ FURTHER AND SUPPLEMENTAL MEMORANDUM OF POINTS

AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS’ MOTION FOR AN ORDER
6 (1) REQUIRING DEFENDANTS TO PRESERVE AND PRODUCE CERTAIN SERVER
7 LOG DATA, AND (2) FOR EVIDENTIARY SANCTIONS AND IN SUPPORT OF
DEFENDANTS’ REQUEST FOR MONETARY SANCTIONS
8
By EMAIL and FEDEX by depositing a copy in an envelope, postage prepaid in a FEDEX BOX
9
addressed as follows:
10
Duane Charles Pozza Karen R Thorland
11 Katherine A Fallow Walter Allan Edmiston, III
Steven B Fabrizio Loeb and Loeb
12
Jenner and Block 10100 Santa Monica Blvd, Ste 2200
13 601 Thirteenth Street NW, Suite 1200 South Los Angeles, CA 90067-4164
Washington, DC 20005 310-282-2000
14 202-639-6000 Email: kthorland@loeb.com
15 Email: dpozza@jenner.com

16 Gregory Paul Goeckner

Lauren T Nguyen
17 Motion Picture Association of America
18 15503 Ventura Blvd
Encino, CA 91436
19 818-995-6600
20
21 I declare under penalty of perjury under the laws of the State of California that the foregoing is true
and correct. Executed on March 27, 2007.
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_________________________________
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DEENDANTS’ SUPPLEMENTAL MPA IN OPPOSITION TO MOTION re SERVER LOG DATA
Columbia Pictures, et al. v. Bunnell, et al.
U.S. Dist. Ct., Central Dist Cal., No. CV 06-01093 FMC