RIAA Wins P2P Case Because Defendant Used a File Shredder
Posted 08/30/08 at 06:23:25 PM | by Justin Kerr
In a shocking turn of events in the Atlantic v. Howell case, the RIAA has scored a major victory and set a stern precedent against those accused of P2P copyright violations. Jeffrey Howell now finds himself on the hook for damages as a result of evidence proving that he wiped his hard drive after learning of the impending legal action against him. RIAA examiners were able to demonstrate that not only did Howell delete his shared folder, but he then formatted his drive and used a file-wiping program to destroy every last trace of the evidence .Evidence, which according to the RIAA, could have backed up his claims that he was innocent. According to the judge “Howell’s brazen destruction of evidence has wholly undermined the integrity of these judicial proceedings. The evidence that Howell destroyed could have been used to determine the origin of the music files, their locations on the hard drive, the settings and integrity of the KaZaA software, and many other relevant facts.” The guilty ruling comes in sharp contrast to the victory Howell scored this past April when a judge rejected the RIAA’s cornerstone legal theory that simply sharing a file on a P2P network was an act of copyright infringement. The EFF (Electronic Frontier Foundation) has suggested that Howell may have fared better had he been able to secure legal counsel which Howell claims was priced out of reach. The damages at this point are still unknown but one would imagine the RIAA isn’t going to get rich off a man who can’t even afford to hire a lawyer.
So is another victory for the RIAA enough to send the pirates running for iTunes? Hit the jump and let us know.
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Kazaa sucks
Submitted by zoroaster on Thu, 2008-09-11 23:37
He should be fined just for using such a piece of crap software in the first place.
time to switch back to the Newsgroups. Even the ISPs are pushing that stuff now. It's near impossible to receive a DMCA notice if your using the NG's because your ISP sold you access to them.
Submitted by Mayhemm on Tue, 2008-09-09 00:01
The destoying evidence charge should depend on what the RIAA have on him. Did he receive binding instructions not to alter the hard drive, and were those instructions received before or after the wipe? It may be easy to prove, or it could be impossible.
How do the RIAA know he wiped his hard drive? They obviously had a record of his Kazaa shared folder, but if they're basing their accusation on the fact they were no longer able to access his share, there could be several reasons why that occured. Him no longer using Kazaa is the obvious one (unless they hacked his computer and obtained the share info by some other means).
Since people use file shredders all the time for security purposes, I don't see how they can charge him for using one.....unless he received the aforementioned legally-binding orders not to alter the hard drive and ignored them (and they have evidence of this). Otherwise, he should be fine.
Submitted by ubuwalker31 on Sat, 2008-09-06 07:20
First of all, remember that this is a civil, not a criminal, case, since this is between two individuals, and doesn't involve the government. So, this isn't about "beyond a reasonable doubt". It is about "is it more likely than not" that the dude broke copyright law. That means that it is 51% likely that the judge is convinced that he broke copyright law and destroyed evidence.
In civil law, destroying evidence (intentional and negligent tort of spoilation of evidence) is an independent lawsuit that is seperate and distinct from copyright violation.
Furthermore, many courts will sanction a party who destroys evidence or fails to keep records in accord with the Federal Rules of Civil Procedure. Moreover, many courts will hold the sanction would be "summary judgement" against the party who destroyed evidence or will instruct the jury that there is an "adverse inference" that evidence was destroyed.
Check out this online reference for more info:
http://books.google.com/books?id=GPda-b9i2OYC&printsec=frontcover&source=gbs_summary_r&cad=0
Submitted by Asevening on Thu, 2008-09-04 14:43
The only problem with an appeal is that he would have had to have a lawyer represent him in the first place. If he represented himself then he cannot claim mistrial or file an appeal. Unless there is a state law in effect that would override this, but since it doesn't give the state in this article you can only assume he is F'd in the A.
Submitted by edward2112 on Tue, 2008-09-02 16:49
What I dont get is how they can convict him on the assumption that there was data pertaning (they did not specify whether it was proving him innocent of guilty) to the case on the HD. It seems entirely circumstantial to me.
Submitted by FusilliJerry82 on Mon, 2008-09-01 14:51
I'm pretty sure you can't do that in a civil case.
Submitted by linkmaster6 on Mon, 2008-09-01 12:06
It might just be me but if you are suspected of a crime, the evidence is taken away from you. They don't let suspected murders keep their weapons or close. If the RIAA had given it a thought they would have taken the hard drive from the beginning.
Copyright infringement is
Submitted by Wareagle on Tue, 2008-09-02 17:26
Copyright infringement is not (usually) a crime, it's a civil matter.
After 230 years, still no "Stupidity Defense?"
Submitted by Wildebeast on Sun, 2008-08-31 21:06
How can we continue to let the US Constitution go without this clause?? Look what happened to "Scooter" Libbey.
(No, the 2nd Amendment doesn't count.)
If he did it after being told of "impending legal action," the question is --Did they say the hard drive was considered evidence? If so, what if he'd just taken a hammer to the bare drive, then put it back in his computer? (He could sit there and say, it don't work --don't know why.)
If not, would he still be in trouble if he'd just deleted all incriminating files, and run 10 cycles of filling the drive with porn & deleting it? (I think that could accomplish the same thing, if he's thorough.)
I'm actually curious to see if the RIAA will think this campaign acomplishes much. They've got to be pissing off 100s of people, for every one they take to court. I guess they could assume "those are more pirates," but I think that's amazingly nieve.
Submitted by lhatten on Sun, 2008-08-31 14:01
FusilliJerry82
Had a good thought, just did not finish it.
""Hypothetical:
You are suspected for murder but before police can get to your house, you clean
or replace
floorboards or something. It's
obvious that carpet has been replaced, things have been
sandblasted clean, what have you.
But they can't find the actual evidence.
But they really think you did, so you're charged with murder.
Regardless of whether you actually murdered someone, isn't there something
wrong with that?""Actually the better comparison is that you might be found guilty of murder because you tampered
with evidence. This actually happened with Hans Reiser. After he
killed his wife & put her in the car for 2 days, he buried her, then ripped
out the carpet and passenger seat from the car. Using the judges warped
logic, he tampered with evidence & should have been convicted of murder
from that alone.
Submitted by Wareagle on Sun, 2008-08-31 13:57
...you won't have anything to hide.
Seriously, does anyone care what the constitution says anymore?
Submitted by MaxFan on Thu, 2008-09-11 13:30
"Seriously, does anyone care what the constitution says anymore? "
Yes. I care. Im sure that the of the 2900+ people that died 7 years ago today, at least a portion of them cared what the United States Constitution said. I am VERY sure that every person who has been declared not guilty of a crime in this country's court system cares very deeply about the constitution. I am further certain that each and every brave soul in Iraq and Afghanistan care about that hallowed scrap of parchment.
Because YOU do not care does not mean that Others do not care.
Think before you speak or write it gives your mind something to do and your hands time to rest
Submitted by zoroaster on Thu, 2008-09-11 23:59
IF citizens really cared about the constitution then those few DNA exonerated inmates on death row wouldn't be there in the first place.
$hit, if we cared Bush/Chaney and company wouldn't be running around the world a$$raping and killing poor civilians to help their poor fellow billionare friends make a little more cash on the dark side. I can see how the rejuvenation of more nuclear weapons is going to bolster the constitution.
Chaney's little betty sue needed a new pink porsche in the driveway, so we'd better hire mercenaries to patrol St Paul during the RNC cause those dirty evil camera carrying pinkos are up to no good. Time to make the taxpayer ante up for this $hit.
pardon my sarcasm, but the constitution has been bastardized by the republican elite at the cost of the american taxpayer. don't forget the RIAA grew under the last 7.5 years, not in the 90's.
What if...
Submitted by Devo85x on Sun, 2008-08-31 10:35
From what i read they said he formated his HDD... what if he was doing a Windows Reinstall because of viruses... or an OS upgrade? they didnt say what he did after formating
Some points to consider
Submitted by Cache on Sun, 2008-08-31 08:16
Whether or not he did this based on an potential RIAA lawsuit, or for other reasons, an appeal will help clarify some key points:
1. Did the RIAA notice that he was being sued specifically state that he was not to remove or change any information on his Hard Drive?
2. Did the RIAA document when he received legal notice, and compare that to when his hard drive was reformatted?
3. Was there any other legitimate, legal, and immediate reason that he could have needed to wipe the hard drive that was not exclusive to the RIAA decision to sue? (i.e.-a virus that overtook his system, massive instability following installation of bad programs, massive driver incompatibilities, etc.)
Consider if his hard drive failed and he installed a brand new hard drive--throwing the old one away--a day or two prior to receiving notice from the RIAA. Are we creating a legal precedent where we are required to keep or maintain bad, faulty, or non-functioning electronics on the assumption we could be legally sued by any entity at any time? If so, how long should we keep or maintain all outdated, irrelevant data? Does this extend to hard drives only, or does it include flash memory as well? How about any CD's/DVD's in my possession?
How often are the PC's in the Maximum PC labs wiped clean with a fresh install? Do they need to keep a DVD around of all files that were installed on those machines? How often? Do they need to document specifically why the machines had fresh installs? Frankly, the legal precents on this are terrifying.
Submitted by nsvander on Sun, 2008-08-31 07:57
I am a little bit confused, how can wiping the harddrive be considered evidence tampering. If the harddrive was considered evidence there should have been a subpoena issued and the drive should have been taken as evidence and a chain of custody filed. The harddrive would ahve then been stored in an evidence locker somewhere till the trial went forward. If there was never any mention of the needing then harddrive as evidence, then it being his property he can do what he likes with it. If it then ends up being needed as evidence, well then its the burden of the RIAA to prove what was on it, and show that it is still on it.
Your honor I Keith Edward
Submitted by Keith E. Whisman on Sun, 2008-08-31 07:01
Your honor I Keith Edward Whisman did not have sexual relations with that chicken to the best of my knowledge.
Submitted by mav100 on Sun, 2008-08-31 06:29
Appeal. EFF should pony up and get this guy a lawyer for an appeal. This is a dangerous precident, and should not be allowed to stand as case law for future trials.
I, and I'm sure many other tech savvy people routinely wipe our hard disks. So basically, what this ruling is saying, is don't do it anymore just in case you are sued, otherwise you will lose because you "tampered" with the evidence. That is a rediculous notion. I think it's pretty clear that sometimes it's just easier to wipe the disk and start with a fresh OS install then it is to try to fix the problem.
Got news for you RIAA - I own my PC. I'll do what I need to do to repair it, regardless of your court ruling.
If the EFF doesn't help this guy appeal this ruling, then the EFF is no longer doing its job.
Submitted by Asevening on Thu, 2008-09-04 14:44
The only problem with an appeal is that he would have had to have a lawyer represent him in the first place. If he represented himself then he cannot claim mistrial or file an appeal. Unless there is a state law in effect that would override this, but since it doesn't give the state in this article you can only assume he is F'd in the A.
Submitted by denyasis on Sun, 2008-08-31 05:03
This dude needs a lawyer badly (like I need a dictionary to spell). The Evidence Tampering could be potentially devastating to him, depending how the local statues are written. He may face criminal charges for it - although it could hamper the civil case significantly.
RIAA's theory that the "evidence" could support his claim of innonecne is also rather unintelligent. The defendant has absolutely no requirements to do anything; subponea witnesses, provided evidence, etc. The burden rests entirely with the prosecution.
Also, evidence on a Computer is not protected under 5th admendment. It is protected from the Gov't under 4th .
Submitted by Thrall on Sun, 2008-08-31 04:24
Is it just me or does every big court case include KaZaA?
Submitted by FusilliJerry82 on Sun, 2008-08-31 01:08
Hypothetical:
You are suspected for murder but before police can get to your house, you clean or replace floorboards or something. It's obvious that carpet has been replaced, things have been sandblasted clean, what have you. But they can't find the actual evidence.
But they really think you did, so you're charged with murder.
Regardless of whether you actually murdered someone, isn't there something wrong with that?
I've only got some
Submitted by Antilogic81 on Sun, 2008-08-31 00:13
I've only got some understanding of the RIAA...but it's funded by atleast three big record lables...
So I can only come to one conclusion...
If you buy music legally you support the RIAA and it's current agenda.
Submitted by bcweir on Sat, 2008-08-30 19:05
It's called 'evidence tampering', and it might as well be an admission of guilt. This dummy didn't realize that the RIAA already had evidence of the files on his computer? I'm no fan of the RIAA, but this fool obvious destroyed any credibility he might have had left.
Submitted by Mikhial66 on Sat, 2008-08-30 17:23
"Evidence, which according to the RIAA, could have backed up his claims that he was innocent."
Sounds a lot like Guilty until proven innocent
Submitted by Keith E. Whisman on Sat, 2008-08-30 18:23
That's what I was thinking. Also since a computer can be interpreted as a means of expression would the Fifth Amendment apply to your computer? Since the only evidence is your computer and you can't be made to testify against yourself. Would'nt providing evidence that proves guilt also apply to the fifth ammendment? I'm using my computer right now to exercise my First Ammendment right for Freedom of Speech/expression.
Since he wiped his computer clean all he has to do is not admit guilt and whenever he is asked if he downloaded illegal content he can plead the Fifth. You can deny allegations without lying. It's just the words you use. RIAA had to prove he did wrong and if he would have been more carefull and objected when he was made to testify against himself. You can't be made to admit anything.
RIAA you were lucky all because you got a dumb judge that does'nt know what a mouse and keyboard do.
xExactly
Submitted by Strongbad536 on Sat, 2008-08-30 17:42
" "Evidence, which according to the RIAA, could have backed up his claims that he was innocent."
Sounds a lot like Guilty until proven innocent"
Exactly,as soon as they had the evidence that wouldve proved him innocent, they would've used it to say he was guilty for downloading the files. Catch 22
