January 6, 2006 12:31 PM PST

Police blotter: Alleged eDonkey pirate gets trial

"Police blotter" is a weekly report on the intersection of technology and the law.

What: A Philadelphia man with a cable modem is sued by Paramount Pictures for alleged copyright infringement of a movie through the eDonkey file-sharing network.

When: U.S. District Judge Thomas O'Neill in the Eastern District of Pennsylvania ruled on Dec. 2.

Outcome: O'Neill denied each side's requests for summary judgment, clearing the way for an eventual civil trial.

Summary: Paramount detected a copy of its Jim Carrey movie "Lemony Snicket's A Series of Unfortunate Events" on the eDonkey network on Dec. 23, 2004. That was a week after it was released in theaters.

The detection, done by contractor BayTSP, allegedly yielded an Internet Protocol address of 69.141.202.170. Because that chunk of IP addresses is owned by Comcast, Paramount filed a "John Doe" lawsuit and then fired off a subpoena to the cable provider.

Comcast replied a few weeks later with the identity of John Davis, a self-employed computer consultant. Paramount is asking for a permanent injunction against Davis, $50,000 in statutory damages, and $38,438 in attorneys' fees. In addition, Paramount claims that Davis was the "first propagator"-- that is, the first person to distribute the movie through eDonkey.

Davis has not hired an attorney and is representing himself in court. He claims that he was misidentified and did not infringe Paramount's copyright in "Lemony Snicket's A Series of Unfortunate Events."

In response, Paramount tried to do a forensic analysis of Davis' Macintosh G4 cube. But the company found that Davis wiped his hard drive clean and reinstalled the operating system soon after being notified of the legal action against him.

The judge said Davis had a "duty to preserve the computer's memory" and will face sanctions. But he denied both sides' requests for summary judgment, saying there were too many important questions still unresolved.

Excerpt from Judge O'Neill's opinion (click here for PDF): "Paramount finds Davis' actions of wiping the hard drive clean of all data to be suspicious because it was 16 days after Davis received notice from Comcast of the John Doe lawsuit pending against him. The effect of Davis wiping the hard drive clean of all data was to make it impossible to determine whether the motion picture or eDonkey software was on the computer prior to March, 25, 2005. Paramount alleges that Davis' actions were intentional to prevent detection of his infringing activities.

"Davis denies this allegation and claims that he wiped his hard drive clean in preparation for selling it to Stephanie Seymour for $390 on March 30, 2005... Davis further claims that the operating system found on the computer in July 2005, Mac OS 9.2.2, is incompatible with the eDonkey network.

"Davis argues that he is not at fault because he reasonably wiped the computer's hard drive clean of all prior memory in preparation for selling it to Seymour, who had expressed interest in the computer as early as Feb. 23, 2005. This argument does not obviate his duty to preserve the computer's memory. Once he learned of the lawsuit pending against him and the subject matter of that lawsuit, he either knew or should have known that the computer's memory was a crucial piece of evidence in this action. His failure to preserve this evidence places the fault for its destruction squarely upon Davis."

12 comments

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Is this justice?
Seems to me the judge has already determined the guy is guilty and since there was no court order oreventing him from wiping his hard drive clean, he has broken no law. If I was him, I'd tell Paramount to stick it where the sun don't shine since they have no physical evidence linking him to the alleged crime unless Paramount can convince the judge that he is guilty until proven innocent which is probably the case.
Posted by yrrahxob (77 comments )
Reply Link Flag
evidence
I think the article clearly states he had been warned 16 days BEFORE he wiped his HDD that he was investigated for copyright infragement.
As a result, knowingly destroying potential evidence was bound to be perceived as suspicious, and might also be illegal ( in New York for exemple,

" A person is guilty of tampering with physical evidence when:
...
2. Believing that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he suppresses it by any act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person.
" -> the key word here is prospective.

If he was so sure he had never shared this movie, why didn't he just keep the computer in his original condition ? Forensic experts would have probably taken a look at it and concluded that there was no trace whatsoever of any illegal activities.
Posted by damienlittre (33 comments )
Link Flag
Hmmm?
Hmmm, it seems we are are missing some key information pieces?

Now the net is dynamic, with routine IP address changes, question is does does this person have a static IP address or a dynamic one which changes with login?

The article is too scant to answer many questions?, so one should never prejudge until all facts are to hand!
Posted by heystoopid (691 comments )
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possible reasons for format
maybe he got a virus through MS office, or had a system error that required a format? Things happen to electronics that can cause the need for a format.

I bet the judge is in the company's pocket.
Posted by techguy83 (295 comments )
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federal judge
It's a federal judge appointed for life. Why would they care about what Paramount wants, this is one of about 200 lawsuit the judge will handle this year. Also, why would the judge risk his extremly prestigious post just to please Paramount.

This is going to trial - there'll most likely be a jury.
Posted by sanenazok (3449 comments )
Link Flag
Format is not the same as wipe
If someone formats a drive it is still very possible to retrieve the vast majority of the data from the drive.

A wipe refers to over writing the data in such a way so as to make it unrecoverable.
Posted by unknown unknown (1951 comments )
Link Flag
Inteligence??
This man was a knowledgeable computer user, and he is not an attorney.
IF he actually was going to sell his computer, then he would obviously wipe the drive, not just format it.
I wipe my drive every time I format. It's just common sense. It is the only way to remove any problems. If he had wanted to he could have made it look like he had formated at an earlier date, or just bought a used hard drive, checked the contents, then done a simple format, leaving someone elses files to be unearthed.
I use a program called Stealth Surfer and Fire Fox that are installed on a flash drive.
When I log into a site my IP Address may be anywere in the US.
Since this gentleman is a tech, he would be aware that his IP could be traced, and would use some method of obscuring it.
I also use TrueCrypt on another flash drive to encrypt all my files.
There are no traces on my computer of where I've been using FireFox. My IP has been hidden, and my files encrypted and removed. They are never on my hard drive.
Even my E-Mail address is a dummy used only for sign ups.
If I were to engage in something ileagal, all I would have to do is destroy my flash drives to remove all the evidence.
Posted by whitedawn (1 comment )
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