Report: RIAA wins case over erased hard drive

The recording industry appears to have won a closely watched copyright infringement case over charges of evidence tampering.

Judge Neil Wake ruled on Monday that Jeffery Howell, a defendant in Atlantic v. Howell, had willfully and intentionally destroyed evidence related to his peer-to-peer activities after being notified of pending legal action by the RIAA, according to a Tuesday report by Ars Technica. Furthermore, since it was done in bad faith, it "therefore warrants appropriate sanctions," the site reported.

The RIAA sued Pamela and Jeffrey Howell for copyright infringement in 2006, claiming that the husband and wife had used Kazaa to make copyrighted files available for download.

In a deposition, Jeffrey Howell admitted to loading the file-sharing software onto his computer. He said, however, that the songs listed in the complaint were for personal use and that he had not placed the files in the program's shared folder. He said the recordings were copies made from CDs he owned placed on the computer for personal use, not copies downloaded from Kazaa.

He also argued that that he was not the one sharing the files, but that it was the computer that was sharing the files.

The Electronic Frontier Foundation argued on behalf of the couple--which lacked legal representation--saying the RIAA's "making available" position "amounts to suing someone for attempted distribution, something the Copyright Act has never recognized." The argument--that merely the act of making music files available for download constituted copyright infringement--has been the basis for the Recording Industry Association of America's legal battle against online music piracy.

Judge Wake apparently agreed with that position and in April denied the labels' motion for summary judgment in a 17-page decision (PDF), allowing the suit to proceed to trial.

However, the RIAA accused Howell of destroying evidence on four occasions after being served with the lawsuit, the site reported. RIAA experts found that Howell uninstalled Kazaa and reformatted his hard drive, Ars Technica reported.

"Defendant's intentional spoliation of computer evidence significantly prejudices plaintiffs because it puts the most relevant evidence of their claim permanently beyond their reach," the RIAA reportedly argued. "The deliberate destruction...by itself, compels the conclusion that such evidence supported plaintiffs' case."

Wake reportedly agreed with the RIAA and is expected to inform Howell of his decision in a forthcoming written order.

[volterwd]

Businesses do it all the time and their ripping everyone off of much more... so why the difference.

[Penguinisto]

Because businesses can blame communications problems and such (e.g. "umm, our sysadmin did it before we had a chance to tell him not to". curiously enough, SARBOX was supposed to prevent this for certain types of information) Individuals don't have that to hide behind.

[Lerianis]

You know, I erase my hard drive on an almost bi-weekly basis.... would they try and say that I was 'destroying evidence' if someone wanted to lodge a complaint against me?

The judge was totally wrong in this case, and expect to see the case appealed to higher courts. This is NOT a win for the RIAA, this is only the start of a protracted legal battle.

[gerrrg]

Reformatting your hard drive and erasing data aren't necessarily synonymous.

If you reformat your hard drive, you have to reinstall all your software and drivers. No one does that unless they have no other choice.

[ittesi259]

The judge is not wrong in this case.....when you receive a notification of a lawsuit pending against you for P2P activities and THEN you format your hard drive.....well that is taking action to hide incriminating activity. Obviously this person knew their computer is fair game in discovery. Had they done it before legal notice of action pending it would be different. The judge is sim[ply saying./.....look, you wiped your drive because you got sued

[gregorytga]

Had the defendant gone to more adept measures to delete the data (a few random 1s/0s rewrites ) and for extra measure placing place holder data like large media formats, he'd been able to prevent evidence. Unless-caught-in-the-act by a law agency, I wonder how one would stack up.

[gerrrg]

The conclusion that the evidence was destroyed against a court order is correct; the conclusion that the act of destroying the evidence is proof of guilt or that the evidence proves the plaintiff's case is really bad logic. I'd be really amazed if someone that went to law school and passed the Bar would even suggest that defective reasoning.

The defendant may have downloaded a trojan horse that could not be saved by AV software, or there was no AV software installed to begin with. There could have been a corrupted critical sector on the hard drive, there could have been a non-recoverable error, period. There are lots of reasons why this behaviour could be repeated as well. The motherboard may have bad transistors that may have lead to an incorrect conclusion that the OS was not re-installed properly. I have been through two of these scenarios, and have had to reinstall more than once in order to diagnose the problem with different computers.

I'm certain the judge is smart enough to know the difference between sound reasoning and this faulty thinking proffered by the RIAA.

[ittesi259]

Right.....innocent people intentionally destroy evidence all the time......

[CyR00k]

So the RIAA didn't get a warrant for the person's terminal (since they aren't a law enforcement agency in the first place, I fail to see how they could legally obtain one) and the person maintained their system for two years. Which given the life span of components and the need for upgrades it seems unlikely that it is even still the original terminal. So, the RIAA was unable to get any data from the terminal to prove copyright infringement, which isn't new since they have never been able to prove copyright infringement thus the argument that simply making music available is the same as piracy.

Personally, I regularly add components to my system, delete and add programs, hell I have even replaced the original hard drive with a larger one and then replaced that one and added a second and am currently pricing solid state drives. All of this and more as matter of routine maintenance on a system. In fact, the only original components in my terminal are the case, power supply, cables, and NIC. Hell, I figure non tech savvy people have purchased entirely new systems in the past two years. Why, would anyone be surprised that the system the RIAA looked at isn't the same system the existed in 2006?

[topgunb2]

Sometimes I think, the couple may have been paid up by RIAA to go through the lawsuit (this is how ridiculous the lawsuit is) and settle this out of court later on to give the case good publicity to discourage users from sharing music.
Even if its not so, RIAA intention is to set up an example through this case which is not going to work. As far as internet is alive and kicking online sharing will go on, the time of multi-millionaire musicians is gone and in couple of years as bandwidth gets better, the tiime of multi-millionaire movie stars will go as well.

[malynj]

If anyone has been following eDiscovery rules, starting December 1st, 2006, you are now required to hold any and all electronic information that may be relevant to a pending case. If you lose, destroy, or otherwise tamper with the information as it existed when you are notified of the pending case, the judge can sanction the party that lost the information. While this suit was put forth in August 2006, it sounds like similar logic is being applied to the case, in that evidence was not maintained in its exact state, and sanctions are being levied in return. With eDiscovery, you pretty much have to yank the hard-drive out, put it on a shelf, and start over with a new drive if you want to continue using your computer. (assuming the computer is relevant to the pending case.) Even then mirroring/imaging the drive would be best, so as to limit any fault that may be set on you for failing to preserve relevant data. While there is a safe-harbor section to the eDiscovery rules, these haven't been thoroughly tested, so being an early test case may not be a desirable thing.

[Renegade Knight]

Not exactly realistic even if it is the law.

[Dr_Zinj]

eDiscovery rules is un-Constitutional.

I don't have to do squat to preserve anything of mine pending a case.

It's the responsibility of law enforcement officials to obtain and serve a legal warrant to seize suspected evidence.

Since defendents are almost never legally deputized law enforcement officials, they aren't legally qualified or required to preserve evidence against themselves; and requiring them to do so on their own volition is a violation of their 5th amendment right to not incriminate themselves.

[umbrae]

If they wanted to preserve evidence, why did the RIAA not seize the computer? I wonder if there were any specific instructions for the person to not destroy data. If they did not seize the computer or order the court to have the data protected, I am not sure why this person was restricted from formatting a drive he owned. Should not the RIAA already HAD evidence BEFORE they sued him? Maybe that's the real problem.

[Renegade Knight]

The RIAA has no right to sieze personal property. They would have to work with the police and the police would get a warrent. The RIAA has the same rights as an individual when it comes to how it goes about sueing the fans of the artists represented by the companies that fund the RIAA. They just have more money than you or I to do this with.

[magicmaster]

RIAA: "Wait, I sensed a brewing notion of infringing the copyright....red ball! Dispatch precrime units!"

RIAA, you watched too much of movies. Stop dreaming. Back to reality.

[Renegade Knight]

Oh I love that. "Quite pirating, but if you uninstall the tools of the trade like we want you to do we will scream even louder".

[chamm3r]

They should seize the computer if they need it for evidence. No one can realistically expect a computer to have the same contents on its hard drive 2 years later.

In the end the accused did that the RIAA wanted: he stopped sharing files. They should be happy if that was their real goal. If he did nothing to "tamper with evidence" and left Kazza running, their "damage" would have been much greater. If they were to claim that the evidence was more significant than this damage, then they just invalidated their whole case.

[marc_90292]

I strongly suggest to check which elected officials was paid by RIAA during the "hot litigation period".
The source is the FEC data base (fec.gov)
The reason is simple, RIAA is known to have madehuge contributions to Barbara Boxer and others in a pattern that matches the unique pattern of adverse litigation events.
The background is on CSI-Jacksonville.com and is the subject of a book by Anonymous, Bayes' Theorem, available September 5 from Amazon, a book that uses forensics to analyse Congressional Corruption. It comes to the conclusion that politicians under color of office call ex parte judges and - equally effective - their law clerks, who write the opinions, to intimidate them to obstruct justice.

[deyb1]

Please take this in the spirit it is meant:
I really wish you had been clearer in your post because I really would have liked to understand what you were saying.

[Pete Bardo]

I'm left wondering which penalty is greater--destroying the evidence or violating the copyright?

[DigitalFrog]

Actually, I saw nothing that said he waited 2 years to wipe the evidence. More likely, he wiped everything right after being served, before they were able to get a warrant. Since "RIAA experts found that Howell uninstalled Kazaa and reformatted his hard drive" I would assume they did get a warrant and were able to examine the computer but not before damage was done. While I do not completely agree with the RIAA stand on things, this guy basically did a very stupid legal move.

[Dr_Zinj]

The judge in this case is not competent to make this kind of a ruling. Judge Neil Wake should recuse himself if he had the intelligence and moral character to act ethically.

This was not destruction of evidence in circumvention of a court order. If anything, it's exercise of the Howell's 5th Amendment right to not self-incriminate.

Had a court order been issued, the police would have been there to serve a warrant to seize the computer and hard drive. The RIAA is not a legally deputized person. And any attempt to make them so is a complete conflict of interest.

[Devil Bunnies]

The RIAA and police are not able to seize the computer or show up at the defendant's home to take evidence. This is a civil case, and procedures are different. The defendant was not asked to "incriminate" themselves (no criminal charges were filed) so the 5th is not an issue.

I have read the filings in this case, and the defendants were warned at the onset to preserve all evidence, specifically including their shared folder and media files. From what I have seen, they did a poor job of it, and probably tried to remove or hide evidence while leaving behind some traces. And they admitted using Kazza, so they can not maintain that there was not shared folder.

This is not a defense of RIAA or its practices. Fighting one of their suits requires following legal methods to dispute the case, including cooperating in reasonable discovery. The defendants could challenge parts of the discovery request (which was broad) and could most definitely challenge the RIAA expert who examines computers. But they broke a fundamental rule of the court, and destroyed evidence. The court can no longer rule on the merits, so the RIAA will win because the defendants did not act in good faith during the proceedings, and so they can no longer raise any defenses that relied on the evidence or the RIAA interpretation of the evidence. They lost the ability to raise better defenses by disregarding basic procedures.

[aka_tripleB]

While civil cases are lesser than misdemeanors so you won't begin or add to your criminal jacket, it is still the the law. That's why they are called civil laws and copyright laws, not called rules or suggestions. So, the fifth admendment still applies.

[ralahinn1]

Lol, i would have done more than just "distroy the evidence" if I was doing something naughty on a computer. I would have replaced the entire drive and then distroyed it.

[Bill_I]

Any of this music can be heard on the radio and taped by anyone. Go figure where a crime was committed. Your home is your castle and not subject to random search & seizure, same goes for your computer and any private files you might have. Most of us rebuild our systems every year or more often just to eliminate garbage files and speed up performance. Its the same principle as changing your oil every time it turns black, just normal maintenance.

[rdupuy11]

even though I strongly disagree with the idea of sharing music on Kazaa, I also think it is just wise to completely replace your computer every single year.

The most garbage they can hassle you with, then, is never more than a year old.

Remember everythings a felony, who knows, what of the 10 billion laws you might be violating, do you know its a felony to tape you and your wife in the privacy of your bedroom, and not register the tape?

You just don't know whats legal or illegal, if they want to get you, they can get you.
If they want to bust you for some perceived charge, and it turns out the charge is untrue and you are completely innnocent, that won't stop them from rooting through every detail of your life to see if they can hang you on some violation, somewhere. What you said this was a business computer? Why is their a copy of tetris? Felony income tax evasion there.

I highly recommend you swap out systems often. We don't live in a reasonable society any longer.

[cooljoebay]

You dont have to replace your computer at all. A pc is made up of parts anyway. It is relatively easy to install effective software that will periodically scrub a hard drive, deleting and distorting areas to make certain nothing can be found.

People just need to be educated. When you share files through P2P make certain you never use a real name or info for an account, also realize that your IP address may be visible to the downloader. ISPs are NOT supposed to share your personal info but they do. This means that if an RIAA rat browses your files while seeing your IP, they will evtually identify you.

How do you solve this problem? Use a PROXY. This is basically a different ip address. It stands between you and others. Everything goes through the proxy and only downloaders can see the proxy, not you. So you can appear to be in Brazil while actually being in the states. Its common to use proxies. But FREE ones are usually slow and unreliable. Pay a small fee and protect yourself.

I think the judge in the case was bribed. It isnt a crime to scrub a hard drive and reformat. I think the guy needs a new set of lawyers. Screw the RIAA. They are nothing but money hungry mafia goons..