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P2P Defendant Destroys Evidence, Case Defaults
neoflexycurrent writes "A court in Texas has thrown the book at a defendant accused by the RIAA of file sharing. The court determined that she had intentionally wiped her hard drive clean, so it entered the most severe sanction possible — default judgment against her. The record companies now just have to ask the court how much they want in damages."
Ok, so what does this default judgement mean? Is my intuitive understanding that the court considers guilt to be proven but the amount of damages can still be contested correct?
Ugh. A moment's panic may well cost someone thirty million. Depressing.
This is the way it has to be. To use the extreme example, if I'm charged with murder, and I can get away with it by destroying evidence, then the penalty for destorying the evidence that would have proved I was guilty should be a guilty verdict for murder. Otherwise it makes no sense NOT to destroy the evidence and take the lighter penalty for evidence destruction.
The crimes for destruction of evidence etc. are meant to be in addition to the crime you're being tried for when the offender is the party on trial, and separate crimes when the evidence destruction is carried out by 3rd parties.
Or, on the flip side, if the plaintiff willfully destroys evidence, the defendent gets default judgement as well. Fair is fair.
paintball
I agree with you; if someone intentionally destroys the evidence of a murder they committed they should be punished for that murder. But that assumes that you 'know' that they committed the murder without the evidence. What if they accidentally wiped their hard disk? What if someone framing them secretly put a powerful electromagnet to their laptop just as the case started?
It's all about reasonable doubt; in this case (I hope) she was guilty beyond a reasonable doubt, if the jury isn't sure beyond a reasonable doubt they shouldn't assume that missing evidence is proof that the evidence was destroyed by the defendant.
As someone else wrote; the correct course of action would be to charge her for obstructing the course of justice and whatever P2P charge was laid against her (as long as she is guilty beyond a reasonable doubt).
// MD_Update(&m,buf,j);
No chance. The record company is crushing somebody, destroying their life just because they can and they think it will scare people into paying their information tax. They are terrorising people. Sooner or later, someone is going to start bombing these companies.
If we can put a man on the moon, why can't we shoot people for Apollo-related non-sequiturs?
If we have reason to believe that we will in the future be charged, keep a clean hardrive that is "mirrored." If she had spent the extra $80 to have a second hard drive, installed windows and other programs, she could have turned in that hard drive and disposed of the original.
When I tell an object to delete this, am I killing it or telling it to kill me?
> The record companies' expert witness examined her hard drive, and somehow determined that two
> "disk-cleaner utility programs" (as the court put it) had been used to delete data intentionally. S
It would have been so much easier had her computer simply been "stolen".
I always cringe when courts and computers collide. Whatever has happened, the fact that she may (or may not - and the evidence that it was her seems a bit flimsy) have wiped her hard drive is not evidence of here guilt - and that's effectivey what the court has judged. Guilty.
I would also love to know how such drastic action would dissuade her from doing this in the future, or how this constitutes 'blatant contempt' or a 'fundamental disregard for the judicial process'. These are serious charges, and the court has effectively asked the plaintiffs what the charges are going to be.
In such cases, where evidence is provided by computers, software or any technology, judges and juries are extremely ill equipped to decide what has, or may have, gone on, or what may have gone wrong. Worse, judges, and especially juries, are extremely susceptible to suggestion from popular myths, perceptions and so called 'experts' who can assert themselves.
Your confusion stems from the fact that the person is not being prosecuted. Remember, copyright infringement is not theft, nor a criminal act. It's a civil offence. This is a civil suit.
Corporations love civil suits. Individuals can't afford to fight them, and seemingly logical courses of action (like cleaning your hard disk) will get you in trouble if you don't know the intricacies of the law -- and law in modern democracies is designed to be incomprehensible to the people it governs. The requirements for a guilty verdict in civil suits are much lower than for criminal trials, and no right to a jury is guaranteed in many states.
He who lights his taper at mine, receives light without darkening me.
I think most posters here are missing one fact: The evidence she destroyed was evidence against herself.
One of the basic ideas of a constitutional state is that a human is treated as a human and is not degraded to a tool. This is exactly what would've happened if she did not wipe those files: By providing evidence against herself, she would've been used as a tool against herself. It is one of her basic rights to deny having to provide evidence against herself.
It maybe is a "disregard for the judicial process", but I think the stronger harm for the "judicial process" is forcing someone to provide evidence against him- or herself. This is such a fundamental idea that I really don't get how the judge missed it.
Is the next step torturing someone until he provides evidence against himself ?
Or simply replaced the hard drive with a new one.
YES.
Once your hard-drive is subpoenaed it is contempt to alter it. You can't even turn your machine ON because if the machine alters the drive it's your responsibility.
What's hard to understand about this? People know the word "subpoena" but not the concept?
I'm still impressed by what can be considered copyright infringement under the US law, and how exaggerately high the compensation for damages can be.
If they were to be fair, I think they should charge with $1 for each Mp3, since that's what it would cost her to buy them through iTunes (or maybe $2, or $10, since she could make copies, but nothing near $150,000), and the costs of the trial.
My 0.02 cents
Artists/bands don't have to back the RIAA, record companies back the RIAA. Personally I don't agree with pirating of music. Bands/Artists make so little off sales it's rediculous. You want the RIAA to go away? then get every band and artist out there to NOT sign on with a major record label that is part of the RIAA and to NOT sign on with any that have talked with or are considering working RIAA. Until then this is what we get. Or until there are enough counter suits against them that they get the point.
So many choices, so little tolerance.
Did your report the theft? File an isurance claims? Have you been seen, perhaps photographed, using that "stolen" PC. IMs, MySpace, Skype? Foling a false report to the police is worth at least a misdeameanor, perjury is a felony charge. Compounding stupidity with reckleesness makes sense only only on Slashdot.
This could EASYLY mean anyone who has ever deleted an MP3 from a P2P network (but it can't be proven it was from one, now can it?) can have the book thrown at them. We all know how Oses handle files - does the cache count? How about if you burn it on a CD? In any case, you are "distorying evidence", and, IANAL, but I would think it counts as such even before they suspect you. In other words, most everyone on the internet can be punished identically to this defendant.
Frightening indeed.
Great Intellect...
Eh? Since when is the recipient of an unauthorized copy guilty of copyright infringement? I though it was just the provider of the unauthorized copy.
Well, remember that a copy is defined for copyright purposes as a tangible object. Mere data coming across the wire isn't a copy. But the downloaded information resident in RAM or a hard drive is. So the downloader is in fact making a copy, not receiving one. Making copies is infringement under 17 USC 106(1). The person on the other end, meanwhile, is liable for distribution, which is infringement under 17 USC 106(3). They are different kinds of infringement, but they're both unlawful and both available for the same remedies.
The Napster case (to name but one example) dealt with this, since it was necessary to find that Napster users were infringing when they uploaded or downloaded as a prerequisite to finding that Napster was unlawfully helping users infringe and could be on the hook for that.
You are right, though, in that if someone just gives you an unlawfully made copy physically, without your making it in some fashion, that possession isn't infringing. But that basically never happens when we're talking about downloading.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
If copying a copyrighted song counts as theft, does deleting the evidence count as giving it back? Shouldn't that warrant a reduced sentence?
I think copyright infridgement should be just that: I infringed someone's copy rights. I think it should apply when I'm trying to earn money using someone's work without their authorization, or when I'm trying to claim the copyright on something ilegitimately.
I think those concepts should be clearly separated from "getting a song at no cost from some other peer". Maybe you'd like to claim it's also ilegal, but I don't think "Copyright infrigdement" can apply to both.
PS: The difference? The money involved.
My 0.02 cents
Examine the word; copyright. It refers to the right to copy. If you don't hold the right to copy something and you copy it anyway, you have committed a copyright violation. Money is not a factor.
I'm not saying I agree with the way it works but there you have it. And the penalty isn't for how many MP3s you may have downloaded to your drive, it is for how many times they might have been downloaded from you. It is pretty harsh.
I truly do not understand the legal system in the US of A. I live in Australia, and I'm sure that this situation could not happen here. I'm sure that 'destruction of evidence' is indictable here, but I cannot see how that something that is not there (ie the data in question) can be construed as destruction of evidence. If it was 'there', then it's evidence, if it's 'gone', then who knows what the evidence was?
I'm in to sadism, bestiality and necrophilia. Am I flogging a dead horse?
Put actors and actresses and music artists at a cap of 150k anything higher than that is just a little bonus. They shouldn't be expecting millions on a small amount of work. This goes for athletes as well. Maybe if we do that, there will be better movies and albums out there.
Huh? Do you honestly think that if you take away the incentives to *get rich and famous* that there will be better movies and albums? Do you really believe that? Were you not paying attention during the last 50 years as one centrally-managed economy after another failed? Did you not notice that the products produced in those countries were orders of magnitude worse than those produced in free market economies - and losing ground with each passing decade? Did you notice that virtually all innovation sprung from countries with free market economies? Incentive breeds competition, which leads to dramatic product improvements and innovations. If you take away the incentive, everything stagnates.
With the RIAA and MPAA if they had it their way, we wouldn't have CDs or DVDs to burn on.
But we do have those, so they didn't have their way. So what exactly is the problem? Their power fades with each passing year. We are witnessing their dying gasps.
The more you regulate a company, the worse its products become.
In order to prevent a crime you must make the penalty equal or greater than the gain divided by the chance of getting caught. The retail value of the songs may have been $500 or so, but since everyone knows the chances of being caught are nil piracy occurs frequently.
Degaussing scares the bad magnetism out of the monitor and fills it with good karma.
That would probably only destroy the circuit board on the drive. The data on the drive platters should still be fine. They'd just buy another drive of the exact same model swap in the good circuit board and access your drive anyway. OK. They might have to do that several times until they notice what you've done to the power connector but they would get the data.
In order to prevent a crime you must make the penalty equal or greater than the gain divided by the chance of getting caught
But for the justice system to be perceived as fair, you must make the penalty commensurate with the crime. Otherwise you end up with a situation like this, where people are punished very severely for crimes that are so trivial that the authorities do not usually bother to investigate them.
A similar phenomenon could be seen before the establishment of modern police forces, when criminals would be hanged or transported to Australia for trivial thefts. At the time, this was justified in the same way, but looking back on it now, we regard it as barbaric.
The bytes on a CD are, guess what, information. If you call someone on the phone and read them off the list of digits, eventually they'll be able to put together their own copy of the song. The desire to prevent someone from sharing those digits is no more justified than the desire to stop them from sharing the digits of pi.
What if those digits, when fed into a JPG renderer, form a picture of child porn? Is that OK in your mind, since it's really just a number? In fact, an entire child porn movie could be represented as a single (albeit, very large) number. So that makes it exempt from regulation, in your eyes?
An email sent from Osama bin Laden to Ramzi Yousef, telling him where to find the bomb supplies, and which flights to bomb, could be represented as a single number. Are you arguing that such an email should be inadmissible as evidence of charges of terrorism, because it can be depicted as a number?
Don't be ridiculous.
Correct - it's nobody's right to own it. You can't own a number.
Uhm, can you be charged with distributing child porn if that "number" happens to form a JPG image of underage sex acts? If that "number" happens to be the binary representation of a Word document containing classified government tactics for fighting the war on terror, you don't think you should be charged with treason for giving it to Osama bin Laden? After all, "it's just a number," right?
Like woodworking? Build your own picture frames.
Where in the phrase "copyright" does it mention earning money? Copyright is litteraly about who has the right to copy a work. When you make, or allow someone else to make, an unauthorized copy of a work you are illegitimately claiming the copyright to said work.
Copyright is about who has the right to make and authorize copying.
Are you really that much of a dumbass that you can't understand that?
Here, let me make it simple for you:
You do not have a right to copy a work created by someone else the creator of that work, or the law, give you permission to do so. Whether you are making money on the copying is irrelevant.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
This doesn't set a wrong precedent at all -- the Court ordered that the Defendant turn over their hard drive for examination.
After the order was in place, the Defendant then elected to destroy the contents of their hard drive, meaning the prosecution would receive nothing of value in response to the order.
I think this sets a very good precedent -- if you thumb your nose at the legal process, you can expect to lose instantly. The entire system operates on the principle that both sides will respect the decisions of the court (verified by force in certain decisions) and if one party goes outside of that, bad things are to happen.
This will look quite obvious as hard drive slackspace will have a recognizable pattern on it. You'd probably be better to dban it, then zero out the drive...however, that is pretty damn obvious too. What you really need is to dban, zero out, then copy a bunch of typical files into place and delete, many times.
This isn't easy to do.
Instead, if you have an encrypted filesystem placed within another encrypted filesystem you'll have a much easier time hiding the presence of particular data. (there is no detectable difference between the second encrypted filesystem and the randomized slackspace of the first filesystem).
Your fantasy that artists should be forced to share their creativity with the rest of the world without compensation for their efforts is every bit as romantic as the grandparent. And by "romantic" I mean nauseating.
"Every artist draws something from the work of others; no one grows up in a vacuum."
Everything ANYONE does draws something from the work of others. Does that mean that NOBODY is entitled to compensation for ANYTHING?
"Ask not what your country can do for you." --John F. Kennedy
She "stole" 200 songs, yes? Say 15 albums. What do you think the punishment is for busting a store window and stealing 15 albums? I'd wager it's far less than $150,000 per song. If the record companies are going to oversimplify things and call it stealing, they should be forced to accept the same penalties as judgement.
Wouldn't it make far more sense to simply not defy a court order or even steal music in the first place? Why give these wankers any more ideas on how to cover up their theft?
Because the majority of The People do not beleive music theft to be a crime. We live in a democratic republic -- therefore if elected officials are not serving the people and allowing laws which directly contravene your wishes, you are under no moral obligation to obey them.
If she shared them, then it's considered redistributing. She would be accused of bootlegging and the penalties are much more severe.
Couple o' things here. Your shillage got in the way of an otherwise good post; if I had the mod points I had yesterday I'd mod you down, despite your having some good points.
Bullshit outweighs good points in my book.
1. Copyright infringement is neither stealing nor borrowing, it's copyright infringement.
2. Piracy is pillaging on the high seas. If you take my boat at gunpoint, you're a pirate. If you take my CD and sell ten thousand copies of it, you're not a pirate, you're not a thief, you are infringing my copyright. No, I won't like it but it isn't stealing.
3. In the US, you can download up to (IIRC) $2k in a year's time, thanks to the No Electronic Thieft Act
4. "We know what happened" yes, we do - slashdot posted a story referencing some lawyer's blog. Anything else is hearsay (unless, of course, you're a lawyer for Arista records, which I wouldn't doubt at all).
I think you mean the majority of the people under 18. Most adults would consider it theft whether they'd do it themselves or not.
In my experience - rubbish.
Large numbers of adults of all ages are copying music to each other, especially using more traditional methods such as tape/CD copying. These same people would consider it abhorrent to steal something.
For most people, saying "Would you like this CD? I just nicked it from the shop the other day" would be unthinkable, but offering a copy of a CD, even to someone who disagrees with any form of copyright infringement, is considered okay.
If they really charge some poor woman $150,000 USD for down/uploading 200 songs... I'm going to snap, and murder some people.
Ok. So maybe not. I have too much to live for. But, with the level of injustice rising so high, I can see someone with less to lose to do something like that. Easily.
I mean... what we're talking about is potentially ruining someone's life.
Sticking feathers up your butt does not make you a chicken - Tyler Durden
Copyrights exist to encourage artistic expression, not suppress it. There's little incentive to spend your life creating art if you can't make money from it. Without copyrights art would all but disappear; would-be artists would be forced to spend their time making a living some other way.
So you would steal passports, money, property deeds, stock certificates, jewelry, and other items that you COULD make an exact duplicate of and still leave the original intact? Because that is what it looks like you are saying.
What about growing your own Marijuana for personal consumption and smoking it? No duplication involved. Noone is getting hurt. There is no distribution. Don't like that example? Ok, what about growing your own HEMP? Let's see... you can't smoke it, you can make rope and paper and ink and oil and clothing out of Hemp. It is still illegal in the USA. Whether or not it SHOULD be illegal has nothing to do with the fact that it is CURRENTLY illegal.
And for all those people who are amazed at the recovery of deleted data, try a simple google search for "undelete". Try it. Recovery of deleted data is nothing new. Software even exists to make it harder to recover deleted data, because of Undelete utilities.
Victimless crimes are still crimes.
"I love deadlines. I love the whooshing sound they make as they fly by." -D. Adams
We live in a democratic republic -- therefore if elected officials are not serving the people and allowing laws which directly contravene your wishes, you are under no moral obligation to obey them.
This is very poor logic on your part. It contravenes my wishes that you are wasting my air by breathing but the elected officials have passed laws prohibiting me from killing you, therefore, living in a democratic republic I have no moral obligation not to kill you anyway?
You can vote out the people passing the laws you don't agree with, or you can get them to repeal the laws you don't wish to follow but you have a legal obligation to comply with the whole body of law no matter how morally objectionable you may find specific items. By claiming one individual's wishes out weights the collective rights of the elected government, you violate the basic principle of a representative democracy. Law is a set of compromises with which everyone disagrees at one point or another. You are legally and morally obligated to obey the law or to change it.
You try your logic in a court of law in almost any country in the world and you will be in the same situation as the person in the article, i.e. getting the book thrown at you. In Texas the judge would additionally cite you for contempt of court and could fine you and throw you in jail. You can be held indefinitely for contempt of court. The judge could have you sit in shackles and a pink jumpsuit the corner of his courtroom every day until you apologized and begged him pretty please to release you. If you acted out or disrupted the sessions he could have the bailiff taser you into submission and drag you to the holding cell for the rest of the day and add days, weeks or months to your sentence as punishment for every occurrence.
Though with most filesharing software you automatically share the files with everyone else. She could have had thousands of songs, and thousands of people could have downloaded from her.
Emphasis mine. This is the problem as I see it with the damages being awarded for these infringement cases. Even if you prove the person had copies of the songs on their computer and were obtained through copyright infringement using a P2P service, where is the proof that thousands of others actually copied the songs from the defendent? And what about if the sharing feature of the P2P app is turned off? The courts are not in the business of punishing "could have" cases (except for this recent NH judgement which is rediculous, with the dissenting judge plainly stating no crime was committed or proven). So perhaps I should say the courts shouldn't be in the business of punishing "could have"s except where laws already allow for that sort of thing (e.g. attempted murder). But there are no laws that I am aware of that make the potential to copyright a crime. Otherwise, anyone owning a copy of a piece of media could be prosecuted because simply having the media would meet the low standard of having the ability to infringe copyright. IMHO if the RIAA wants damages of $150,000 per song they need to demonstrate that the defendent caused that much damage, not that they "could have" caused that much damage. If I own a gun and I'm arrested for some other crime, say tax evasion, can I also be convicted of attempted murder because I could have shot someone?
-- I'm not a pessimist, I'm a realist. It's not my fault that life sucks so much. --
That's what it used to be called. Just because the majority want it or not want something can be a factor, but
watch what you wish for.
Think about 1942 , west coast, being of Japanese ethnic origin.
You too could be tomorrows NON-majority.
But if I could make an exact duplicate copy of any of them, and the original was still intact, then damn straight I would!
Then who would pay the $1 billion for the FIRST car?
paintball
Yes, willful destruction of evidence is a serious crime, and should be handled as such. That means that it's the public's responsibility to prove that this crime has been committed, and charge the perpetrator with obstruction of justice and/or perjury.
However, under no circumstance should the destruction of evidence be taken as evidence of guilt for the original case. The accuser in that case should not benefit from the defender having committed another crime. It's still up to the *IAA to prove their claim, and absence of evidence must never be allowed to be treated as negative evidence.
No, this would not benefit the defendant, who although she might go free in a civil suit by destroying evidence, would be liable for a criminal suit, which is far worse.
Finally, don't forget that in the end, all doubt should benefit the defendant. If there is any doubt that she might have zonked the installation to not incriminate herself for something else, or when in a state where she was not aware of her actions, this doubt must benefit the defendant. That it's "likely" that she did it to cover up this particular crime doesn't enter the equation at all in a Ius Commune system -- it has to be proven despite any doubt benefiting her.
(Whether I'm a lawyer or not is irrelevant too - if you read something on a public anonymous blog and take it as legal advice, blame yourself.)
Regards,
--
*Art
Erase that "?" after "stupid". I just read the actual judgement. It turns out that this... genius... wiped her hard drive once when receiving the request from the plaintiff requesting inspection. The beautiful part comes when she does it a month later, after the court granted the plaintiff's motion to force her to allow inspection. What that says to me is that she was stupid enough to continue downloading after being served with the suit!
I am impressed.
Not only do you completely miss the point of the parent, by arguring against numbers harmfulness, whereas the parent talked about sharing art. You also manage to drag in terrorists and child porn. If it weren't so said i would mod you Funny.
Come on guys, who moded this ignorant insightful?
Swap hard drives with another computer.
Now examine the term of the copyright at the time the first US law on it went into effect. And examine the penalties. Now examine the current term of the copyright ant panalties.
It shouldn't take you long to decide that the system is broken.
I think we've pushed this "anyone can grow up to be president" thing too far.
The problem is that "copying" the file without redistribution or profit is confused with "copy"right when it really is petty theft.
No, it is not. Copyright violation is not theft. Period. End of story. If copyright violations were theft, then we wouldn't have any copyright laws, because theft is already illegal (in case you hadn't noticed yet). It was already illegal long before the notion of "copyright" ever entered any legal text. As a matter of fact, copyright laws were created exactly because the existing laws about theft were not applicable in copyright cases.
The easiest way to demonstrate in a conversation about the RIAA that you don't even understand the problem at hand is to equate copyright violation to theft.
The notion of theft requires that something be removed somewhere. If I go to your house in the night and I take your car away: that is theft. But if I go to your house in the night and make a copy of your car and then I drive that car all over the neighborhood: that is NOT theft. We can haggle all day what precisely it is, but nothing was stolen from you, you still have everything you had before, therefore no theft has happened.
You can steal a CD. That would be theft. But making a copy of a CD is not. That's what copyright law is all about. That's why these legal cases exist. That's why there's legal struggles to redefine copyright in the age of the internet. Because all those age-old laws about "properety" and "theft" do not apply.
We're all born with nothing.
If you die in debt, you're ahead.
The problem with making the punishment equal to the crime ($1 per mp3) is that it is not a punishment at all. There is no crime deterrent there. Why would people (other than their own goodness) download something legally for $1 if they could download it illegally for free, and then only pay the $1 fee if caught? Financially it wouldn't make sense to follow the law. So the punishment must be an actual punishment, instead of a simple reimbursement.
The *purpose* of copyright is to promote the progress of science and useful arts. Copyright does this *by* giving exclusive rights to the author or inventor of a work for a limited time. So, while money is a likely byproduct of copyright, to say that was the purpose of copyright under the Constitution is to ignore what it clearly states. But, of course, it's easier for artists (and their publishers) to show that they're not being paid than it is to show that they're promoting the arts and sciences.
Eurohacker European paranoia, gun rights, and h
The problem is that "copying" the file without redistribution or profit is confused with "copy"right when it really is petty theft.
Are you accused of copyright violations when you shoplift a CD from a store? No.
Are you accused of copyright violations when you sell said stolen goods? No.
Then what is the difference?
The difference is in the legal definition of theft.
In the UK, this is defined in the Theft Act 1968:
"(1) A person is guilty of theft if he dishonestly appropriates property belonging to
another with the intention of permanently depriving the other of it; and 'theft' and 'steal'
shall be construed accordingly."
The US has a different law but uses the same definition. The key point is it is theft if, and only if, you permanently deprive the other of it. When you steal a CD from a shop, they no longer possess that CD. That is theft. When you download a song or copy a CD, the other person still has the CD. That is the difference.
If you then try to sell it it makes no difference, because you have already stolen it. Same law (probably a harsher sentence though).
Copyright laws are completely separate to theft. They allow the owner to control when you can copy their work. They can give you permission (e.g. to publishers so they're allowed to create the copies to sell) or not (by default). They exist because theft does not cover copying work, because the original still exists.