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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."
destroying evidence after receiving a court order is always a stupid thing to do. The question for me is: How did they proved the data was destroyed after the defendant receivced the court order?
Regards, Martin
Wouldn't a more believable reply have been "My computer crashed and it wouldn't boot up. The only way I could get it going again was to get a friend to reformat it".
Sendmail is like emacs: A nice operating system, but missing an editor and a MTA.
The court rendered default judgement because it determined that the plaintiff acted in bad faith, showing "blatant contempt" for the court and a "fundamental disregard for the judicial process." This makes no sense. Charge her with contempt of court and obstruction of justice, fine. The article claims the court wanted to deter her from doing it again and set an example by punishing her -- I'm sorry, but a week in the can will do that trick just fine. Contempt and obstruction are serious criminal offenses. But rendering default judgement here is tantamount to saying that the lack of evidence here is evidence in itself. On top of it, the court implicitly endorses whatever the hell value the plaintiffs decide to attribute to the allegedly "stolen" songs (and the court's decision can be cited in future cases as evidence that said value is reasonable). I realize the judge wants to "set an example" that evidence-tampering is wrong, but you do that by using the criminal sanctions that are already available for evidence tampering. I'm not ANAL, and I'm not a lawyer either, but this is a strange governmental endorsement and protectionism of a corporation's interests in a supposedly free market, no?
Just because it's hard to come up with certain information doesn't mean it shouldn't be "Free". Consider all the work that went into calculating the speed of light, or pi, or the age of the universe... now imagine if everyone who wanted to use any of those figures had to pay the heirs of the people who discovered them!
Visual IRC: Fast. Powerful. Free.
Art is an expression of an artists own life, views, beliefs, hopes, dreams etc. They have every right to protect their work, since it's uniquely theirs. They can choose who they want to view it (e.g. give it away for free, or give it only to people who pay). It's not automatically everybody's right to own it just because they're too cheap to pay for it.
Art isn't information that humanity deserves to know, it's art.
Bah, the judge is just miffed that he didn't get a copy of all her music. She did the right thing by putting an immediate stop to such blatant file-sharing, by the courts even!
</sarcasm>
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.
...has a porn collection, gets their hard drive subpoenaed, had a file sharing client installed at somepoint on the PC, and deletes the pron because they feel they don't want their fetishes being a part of the public record; they are guilty by default?
Any sufficiently advanced influence is indistinguishable from control.
Viruses have already been used in the UK to get a positive judgement in computer misuse cases. One person got off child porn charges as he had a few viruses on his machine, and as such he was deemed not to be in control of the machine and therefore not responsible.
Warhammer forums
Just like culture and human happiness advances when artistic works are freely enjoyed, spread, and built upon to create new works.
Hoarders love to repeat that romantic gibberish, but sorry: information is information. 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.
Uniquely theirs? Ha. Every artist draws something from the work of others; no one grows up in a vacuum.
Correct - it's nobody's right to own it. You can't own a number.
Visual IRC: Fast. Powerful. Free.
In terms of a defence wiping your hard drive is pretty much an admission of guilt. You're saying to the court that you don't want to allow them to see any evidence and it's hard to see how the judge could have done otherwise. But it sets a worrying legal precedent. I use Eraser software to regularly overwrite deleted sectors of my hard drive and it could be argued that if I deleted a downloaded song and then overwrote the sector repeatedly I was tampering with evidence. Surely the best defence would be to find out what songs you are being prosecuted for and then buying the album/game/DVD. Arguing in court that you tried the music and so bought the album, thus actually profiting the RIAA and its minions, would make an interesting defence.
IANAL - This is not legal advice.
Will a law student do?
First of all, the court does not consider guilt to be proven. Guilt is what a criminal has. This is a civil case. What it means is that the court considers liability proven.
I am going to assume that this was a bifurcated ("two part") trial. There are two phases in a bifurcated trial: liability and damages. A default judgment resolves the issue of liability, the first phase. The issue of damages is the second phase. So yes, it is contestable, as both sides argue how much damages are needed to make the plaintiff whole.
However, if RIAA is entitled to statutory damages (i.e., $ 750 - $150,000 per violation; see 17 USC 504) then that controls the damages phase. Yhere is no need for RIAA to prove anything to get the minimum relief provided for by statute (the number of violations having been decided in the liability phase). If they want to get more then the minimum, they will have to provide some argument as to why more damages are warranted in this case. The damages could also be lowered to $200 per violation if the defendant can prove good faith infringement. However, I do not know enough about the fact in this case to know whether or not the statutory provision applies in this particular case. I (nor probably anyone else) also can not intelligently speculate as to what damages will ultimately be awarded in this particular case.
IANAL - This is not legal advice.
Lawrence Lessig is my personal hero.
What about those of us that use wiping software all the time? I have been using BCWipe since 2001, sometimes on a daily basis. And it's set up to do it automatically.I should have to suffer because of my daily or weekly routine?
Great Intellect...
I intentionally leave my access point open. If the RIAA mob gives me a hard time about filesharing I can tell them confidently that it was not me but some "drive-by hacker". I know of a girl who did the same thing and they had no case.
Physical destruction of the hard drive on police raid would be WAYYY too obvious. That's why you install powerful electromagnets in the door that pulse and fry the hard drive (and likely other internal components) when the computer is being removed from the room. Since the data on the hard drive would have "proven your innocence" and... I donno... the data was there before they took it... then the default judgement would be in your favor. I assume if they get default judgement then it would be trivial to countersue for lawyer fees. And then you can get them for destruction of property...
.exe securely before exiting.
Unless, of course, they somehow figure out that you had an electromagnet in the doorframe.
I work in Computer Forensics. Forget electro magnets. There are already extremely powerful permanent magnets inside your hard drives, very close to the disk. An electro magnet outside the HDD itself would have to be incredibly powerful to wipe the drive. It would also likely have the effect of rendering the drive permanently useless, since the external magnet will not be able to discriminate between user data and the track position data which is only ever written once at the factory.
What *I* would do is this...
All computer forensics people are extremely aware and careful at the time of evidence capture to NOT allow the evidence hard drive to ever be written to while they have custody of it. This includes NOT allowing the drive to be booted. They go so far as to install write blocking bridges between the drives and controllers for the imaging and then leaving the drives unplugged or removed afterwards. The reason is that the time and date the machine is taken (*away* from the defendant) is noted during the raid. If so much as a single file has a timestamp after that time, that evidence can then be considered to have been tampered with.
So I would want to have a small program that I can run in case of emergencies, which would "touch" typical system files, add typical event logs with appropriate times and dates to go with the time stamps and also touch a list of files which could be considered to be incriminating, but with times well into the future of the current time. This small program should also wipe its own
It might actually be safer to just touch the incriminating files (and certainly easier), since the drives are usually removed from the machines, placed in protective containers and marked as evidence. As such, booting from them is highly unlikely to occur, especially from the original machine they were captured from.
The evidence goes to court, your expert witness notices lots of activity in the evidence *after* it left your possesion and a huge pile of doubt is placed on the evidence and the experts of the other side involved with the capture and handling of that evidence. Police have messed up computer evidence capture lots of times before, all around the World. You can easily make it look like they've done it again.
I would rather avoid this trouble though and do my "evil" work from within a virtual machine. If you have a clean, non-incriminating copy of the VM files, you can overwrite the evil copy with something that is clean. You do of course have this ability in place because you need a clean test environment which can be cleaned on a regular basis. ; )
Best method is though... don't download copyrighted music or movies. It's all fucken shit nowdays anyway.
The entire purpose of copyright, as allowed by the U.S. Constitution, is to facilitate creators of works to earn money off their creations for a time. So yeah, copyright is about money (as a means to encourage further creative work).
Good or bad, copyright is, indeed, about money.
Kythe
Based on that very simplistic definition, any use of a work in digital form would then be a violation, since copying is necessary step involved in its intended use.
Please stand clear of the doors, por favor mantenganse alejado de las puertas
OK, but this applies directly to me. This is not a hypothetical question, but an actual one. I have (seriously) just decided to wipe all of my hard drives clean of the (many) songs and movies I downloaded. Not particularly because I fear the RIAA or MPAA, but because I just don't enjoy it anymore. I own all of the music that I listen to and all of the DVD's I watch, and was just downloading stuff for the technical challenge. I was downloading as recently as about a month ago, but last week, I ran DBAN on all of the hard drives which contained the data.
So as a serious legal question out there to people who are in the know, what if the RIAA or MPAA logged my IP address last month and are in the process of subpenoing my ISP? That process can take over 6 months. Are they going to say "He erased his hard drives, so he must be guilty." They can't determine when I erased them, so are they going to claim that I destroyed evidence after I get the letter in 5 months? Can a guy really have a change of heart and do the right thing, only to get more severely punished than if he had kept up the offensive action?
-Arthur
Cave ne ante ullas catapultas ambules
What if she had simply encrypted the entire partition?(This is trivial to do with many Linux distributions) In such a case could she have simply given up the hard drive and not give the password. In such a case all the data would be intact. It would just be up to the authorities to decipher it. Would having to give up the password amount to self encryption? Another question is, would she even have to give up the password in such a case? IIRC the the up-and-coming Windows Vista OS will support encryption as well, and I am sure many people will use it. I think it will be interesting to see what the US government's response to this type of thing will be.
Wow, you've completely missed the point. The post you replied to talked about *ownership* of ideas, and you're accusing him of sanctioning child porn?
Here's a clue: we're talking about ownership and copyright; you seem to be arguing that Osama should own copyright on his bomb letters, so that no one can use a copy in court. If child porn is illegal (and it should be, with stiff penalties), than it is *posession* of it that is illegal, *not copying it*. Do you really think it makes a difference if you are the "owner" of the original child porn image, or if you have a "pirated" copy.
You're obviously very confused on this issue; perhaps you've watched too many RIAA informercials?
Look, I despise the RIAA as much as the next Slashdotter, but I can't fault the Judge's logic in this case. The Judge requested evidence, the woman destroyed the evidence, and I don't think that anyone here even has 'reasonable doubt' that the woman wasn't pulling songs off BearShare. If I were the Judge I would find her guilty as well.
You are reading a copy of my copyrighted post.
I don't see any mention of one of my favourite novels, Cryptonomicon by Neal Stephenson, in which at one point a server is stored in a cabinet that effectively EMPs the machine if it's improperly removed. I've always wondered how practical that might be. I suppose you would need a heck of a lot of power available.
How about, not knowing the extent of actual damages, invoking the MINIMUM penalty instead of the maximum. That would be more fair, particularly because it is incredibly hard for me to believe that some random woman would have the wherewithall to cause $3,000,000 of damage merely by downloading several dozen songs. Causing that much actual damage pretty much requires redistribution on a massive scale.
What would be even more fair would be only assigning damages according to what the woman could have bought the music for - the price of 200 songs or 15 albums, whichever is greater.
But then, nothing in this case had anything to do with being fair, or just, or any of those pretty, obsolete words.
We are the fire that lights our world.. and we are the fire that consumes it.
Frankly, I didn't see ANY evidence in the court's decision that SHE did it. I think she had teenage and adult children who may have done it. Why should she be punished because of something they may have done? The judge takes a pretty big leap from the fact that it was done to the unsupported conclusion that it was the defendant who did it.
Ray Beckerman +5 Insightful