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."

Comments

wow

[nwmann]

wow

Re:wow

[kripkenstein]

Wow, indeed:

Given that the record companies' expert opined that the defendant had downloaded over 200 sound recordings during 2005, those requested damages will probably be substantial. Statutory damages under the Copyright Act can go as high as $150,000 per work infringed, in the most egregious cases.

200*$150,000 = $30,000,000. Of course, this is just a maximum, but it's still scary.

Re:wow

[alx5000]

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.

Re:wow

[pdhenry]

>> 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.

What standard for copyright infringement would you prefer, beyond infringing on copyright?

Re:wow

[alx5000]

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.

Re:wow

[MirthScout]

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.

Re:wow

[nelsonal]

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.

Re:wow

[duvel]

>>Given that the record companies' expert opined that the defendant had downloaded over 200 sound recordings during 2005, those requested damages will probably be substantial. Statutory damages under the Copyright Act can go as high as $150,000 per work infringed, in the most egregious cases.

>200*$150,000 = $30,000,000. Of course, this is just a maximum, but it's still scary.

The minimum penalty is 750$ per song, making for a total of 150.000$ for the 200 songs. I'd say that you don't need to calculate the maximum to become scared.

Re:wow

[badfish99]

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.

Re:wow

[DaveV1.0]

Time to get out the cluebat:

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.

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.

Re:wow

[Kythe]

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.

Re:wow

[computational super]

when criminals would be transported to Australia for trivial thefts... we regard it as barbaric.

Now, now - I've been to Australia a few times in the past year, and I wouldn't say that being transported there is barbaric. Unpleasant, sure, but still a fitting punishment for a trivial theft or minor copyright infringement.

Re:wow

[NormalVisual]

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.

Re:wow

[thePowerOfGrayskull]

At the time, this was justified in the same way, but looking back on it now, we regard it as barbaric. We do?

Re:wow

[Ender Ryan]

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.

Re:wow

[GuyverDH]

Actually, it would only be the dollar amount that iTunes pays for record companies per song.
They are obviously in business to make money, so I would assume they make a percentage of that $1 for the song.

Re:wow

[ElleyKitten]

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.

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. It's not hard to imagine that if she and everyone who downloaded from her had bought every song from iTunes that they could have spent over $150,000.

Re:wow

[DaveV1.0]

From the constitution:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

I notice that it says nothing about earning money. It says one has an exclusive right to the discovery. One may give it away, portion it out to a few, sell it, or hoard it as one sees fit.

Also, the post I was responding to made earning money off of a copy a prerequisit to violating copyright law. It isn't.

Re:wow

[GuyverDH]

Sounds like an option for countersuit then - extortion.
The value of each song is less than a dollar.
The RIAA has set the stage for this price per song, as that's what they sell the right to download to iTunes and other Online music services for.
If that's all they expect to receive from the downloading services, then they rightfully shouldn't expect anything more than that as penalties for non-pay downloading.

The only problem with this, is that the quality of the song you pay for is less than what you could find online. ie - the DRM BS that they attach to the songs which makes them incompatible with most media players.

Re:wow

[SatanicPuppy]

I can only assume this is a troll.

You don't see how being forcably deported to an undeveloped country and denied re-entry to your home country for having committed a crime that would be defined as petty theft today, is barbaric?

Re:wow

[hummdinger02]

I am trying to think of a trivial crime that could get me a free flight to Australia. :-)

Re:wow

[Jtheletter]

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?

Re:wow

[ahknight]

That's almost correct. If it were not for the Fair Use clause, it would be entirely correct. This is why you can make copies for personal use, that is, such copies that are needed to protect the purchase or to utilize the copy you've been given, or to use it in a more convenient manner. Outside of that basic, implicit grant, it's a copyright violation.

Re:wow

[ahknight]

It was a joke, dumbass.

Re:wow

[ahknight]

Any large crime against someone on the Aussie mainland would get you extradition. Comes with free room and board, too. The company could use some social education, but it's a free trip so there's sure to be some downfalls.

Re:wow

[ElleyKitten]

Civil cases have a different burden of proof than criminal cases. In a criminal case, the prosecutor has to prove beyond a reasonable doubt that the defendant did the crime. In civil cases, the plantiff just has to prove it is likely based on the evidence that the defendant cased the plantiff monetary loses.

Re:wow

[Anonymous Coward]

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.

Yes. Unless you have a fair use exemption, or implied consent to use the work by the author. Downloading from a web page is considered implied consent, since that's the point of the web.

Other uses are not allowed, fair use roulette aside.

Re:wow

[Kythe]

First, let's be clear here: I didn't say the word "money" appears in the clause in question.

However, I think you have to be fairly daft to believe the point of such exclusive rights, geared as it is towards "the promotion of progress of science and useful arts", wasn't about making money off the deal.

In the last several years, however, the point of copyright has no longer been the promotion of public good (through ensuring the ability to earn money for one's labors); rather, it's become focused on the notion of treating ideas as "property" and copyright violation as "theft". Thus, ever more draconian copyright law has been the result.

I'm hardly an anti-copyright campaigner. However, when copyright is moved so heavily into criminal law instead of civil law; when damages completely out of line with actual harm are allowed and even mandated; when copyright duration is extended well past the death of the original creator (and thus well past reasonable expectation that the creator will continue to produce creative works); when criminal punishment for copyright violation exceeds that for certain violent crimes...I think it's fair to say that something is a little out of whack.

Which, I think, was the point of the post to which you were originally responding.

Re:wow

[thomasa]

"...to authors and inventors..."

Also it does not say to authors and inventors or their representatives.
(E.g., the RIAA which is neither)

Congress AND the President both ignore the US constitution.

http://www.capitolhillblue.com/artman/publish/arti cle_7779.shtml

Re:wow

[computational super]

forcably deported to an undeveloped country

What country are you calling undeveloped? Australia has Steve Irwin, John Howard, kangaroos, almost 200 acres of arable land...

... Ok, maybe you have a point there.

Re:wow

[DaveV1.0]

No. The exclusive right is transferable. The members of the *AA require artists to transfer the rights to the member. The member then transfers the right to enforce to the *AA. This is encapsulated in the "Work for Hire" clauses of the copyright laws establisted by Congress under the auspices of Article 1 section 8.

Perhaps you should try reading the law, dumbass.

Re:wow

[thomasa]

Sorry, I was referring to the constitution, not the LAW. The "exclusive right is transferable"
is not in the constitution but was a property that was made up later. It does not become
part of the constitution even if the law is ruled constitutional. In fact, later court cases
might render it unconstutional - though that is doubtful.

Re:wow

[saskboy]

It floors me that someone can expect a $3,000,000 maximum fine for downloading songs, while an oil company tends to get a $5000 fine for ruining a few acres of land.

Re:wow

[ryen]

so you'd trade in 'copyright infringement' with theft, since that is likely the only other alternative. and then that would likely be time in jail. I'd rather file bankruptcy than spend time in a federal prison, imho.

Re:wow

[shark72]

"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."

The article was misleading, as it referred primarily to her downloading. She was actually fingered because she was sharing these songs. Even if we used the $1-per-song idea, if each of these 200 song were downloaded 18 times, we're at $3.5K, the amount of a typical settlement, and an amount which many Slashdotters point out can "financially ruin" families.

However, I'm glad that the law generally doesn't work this way. Woe to me if I owned, say, a jewelry store, and the only disincentive for somebody to walk out with a $10K diamong ring is that they would have to give it back (or pay $10K in cash) plus cover court costs. But I can see how it would be appealing for people who like to P2P music.

Re:wow

[shark72]

From our copyright laws:

(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

(Clause 2 goes on to state "(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.")

"If that's all they expect to receive from the downloading services, then they rightfully shouldn't expect anything more than that as penalties for non-pay downloading."

When one buys a track from the iTMS for a buck, one does not get the right to distribute unlimited copies, as the defendant apparently did. Come on, guys, this should be basic stuff -- if I crack your $25 shareware app and distribute it to 1,000 people, I don't simply owe you just $25 for that one copy I cracked. If I use your OSS code in my closed-source app and sell 1,000 copies for $100, I don't owe you $0 for just that one instance of the source code that I copied.

Re:wow

[BalanceOfJudgement]

I'd rather file bankruptcy than spend time in a federal prison, imho.

Good luck ever filing for bankruptcy in the United States. After the finance industry's cout d'etat last year, forcing through the anti-bankruptcy law that makes it almost impossible to wipe away debts you'll never be able to pay, you're better off just spending a few years in jail, rather than the next 70 years of your life paying 30% of every paycheck to the RIAA.

Either way, you're completely screwed. This is not the situation we should be in. Seriously, how is this in the slightest bit fair?

Re:wow

[nleaf]

I'm not incredibly knowledgeable about copyright law, but could one way of stopping these RIAA suits be to prove downloading a copy of a song you own to be legal? If its true that the damages are for every person who might have downloaded a song from you, then wouldn't the RIAA have to give the court a reason to believe that all of those people did not own the song?

Re:wow

[BalanceOfJudgement]

It floors me that someone can expect a $3,000,000 maximum fine for downloading songs, while an oil company tends to get a $5000 fine for ruining a few acres of land.

This is one of the ways you know the world is moving towards fascism. Citizens are treated like criminals and punished 30,000 times over for it, and corporations that cause massive destruction are not even slapped on the wrist.

That's called government of the corporation, by the corporation, for the corporation - fascism.

True, we're not entirely there yet, and there's still some semblance of an attempt at fairness, but it seems those judges who actually want fair judgements are becoming more and more rare.

Re:wow

[C0rinthian]

Most likely, you would be required to provide proof of ownership. I.E. all your original CD's that you were simply downloading copies of. (So much for innocent until proven guilty)

You distributing copies electronically to others is not protected in any way, IIRC. In that case, proof of ownership doesn't matter, as you don't have the rights to distribute regardless.

Re:wow

[HiThere]

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.

Re:wow

[Iron Condor]

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.

Re:wow

[d_jedi]

Yes, it is *could have*. But, by destroying evidence, the defendant gives the plaintiff no way of ascertaining whether or not this *could have* is, in fact, true. By deliberately destroying evidence, the defendant prejudiced the case against her, and will likely have to pay a substantial penalty, because the *could have* becomes a *probably did*.

Re:wow

[MBGMorden]

Except that when they walk out with your $10k diamond ring you're going to be like "OH SHIT!!! THE RING IS GONE!?!?!?!". If you plan on selling it you're going to have to buy another one.

If instead they walked in and snapped a picture of it, then went down to Fernando down the street and had him make a lookalike for $5, then you're not really out anything, unless you think that a guy who would get a cheapo copied ring from Fernado would have ever bought your overpriced piece jewelry in the first place.

Re:wow

[Vanth Dreadstar]

It is less the creators of the works than the marketers of the works that are constantly pursuing these cases, The money-grubbing record companies that rip off both the artists AND the consumers. How much do you think the artists who created the works that are relevant to this case are going to receive out of the damages levied against the plaintiff? Precious little compared to the gluttonous record companies.

Re:wow

[alexsinge]

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.

Re:wow

[ahknight]

The license you are given when you buy a CD does not allow you to give away copies for any reason, including if the other person also has a license. You are an end-user, not a distributor.

Re:wow

[Kjella]

If they were to be fair, I think they should charge with $1 for each Mp3

That's like stealing from the store, but when caught you have to pay the price of the goods. Tell me again how that is going to discourage someone from copyright infringement? I mean, at worst they'll be as bad off as buying it if they are caught every time, otherwise it's pure profit.

Re:wow

[10101001 10101001]

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.

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

However, I think you have to be fairly daft to believe the point of such exclusive rights, geared as it is towards "the promotion of progress of science and useful arts", wasn't about making money off the deal.

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.

Re:wow

[westlake]

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.

Would you care to apply your rule to the uploader who is feeding unlicensed content to the tens of millions of potential downloaders using BT and the P2P nets?

The amount to be calculated based on some judge-made rule or statutory formula.

The typical RIAA settlement runs about $3500. Probably not far distant form your own "reasonable" assessment $2 to $10 a file.

Re:wow

[westlake]

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.

The crime here is destruction of evidence and possible perjury: erase the files and lie about it to the judge. This takes you out of the realm of civil law and into the realm of criminal law in a very big way.

Re:wow

[westlake]

I should say the courts shouldn't be in the business of punishing "could have"s

In civil law decisions are based simply on the weight of the evidence, on what seems reasonably plausible and not what is dead certain.

The biggest mistake a defendant can make in a civil cae ts to build his case on a house of cards. To pile contingency upon contingency until the judge and jury are ready to rebel.

Re:wow

[gigahawk]

Fair Use covers much more than personal use, it covers all usage which is fair. Book, papers, DJs, etc. all make use of the fair use doctrine clause on a daily basis for commercial gain. An example can be found in a talk given by Lessig on the fair use of the google book search project here: http://www.lessig.org/blog/archives/003292.shtml.

Re:wow

[Jtheletter]

Please point out where in my post I confused the notion of civil vs criminal proceedings. Becuase I didn't, and do infact understand the distinction. In cases such as these it is my understanding that there are two phases: the first phase determines if there is infringement and therefore liability, and the second phase determines damages to award. That's the point at which a defendent found guilty finds out if they owe the RIAA $750 per song or $150K per song. Now, IANAL, and I get most of my info from /. articles like these and the occasional groklaw article. But in all the cases I have read about I have seen no mention or proof of the number of copies that were shared playing a role in determining the damages. Usually it tends to be based entirely on the potential for further distribution, and the more songs that were being shared, the bigger the per-song award is set at. My point is that during the damages phase, when someone has alreay been found guilty of infringement, there needs to be a higher burden of proof of actual damages caused before setting the per-song damages above the minimum allowed.

Re:wow

[Jtheletter]

because the *could have* becomes a *probably did*.

You're referring to the "could have" of the defendent possessing illegally obtained copies of songs, which by destroying the evidence defaults to admitting that she did. What I'm referring to is the "could have" of her further distributing those songs. Now, the evidence being destroyed, there's no way to prove [sorta, I'll get to this in a second] whether she only downloaded them and never shared them to others on the P2P network, or if she was a major distribution point and shared each song to 1000 other people. The point being, the damages awarded should be, in part, based on if she merely committed copyright infringement once for each file (personal only) or if she then went on to infringe many times over again by continuing to distribute her copies to others. One could argue that because of the inabaility to prove one or the other that the per-song penalty should be either the min or the max, or maybe somewhere in-between depending on the judge's mood. However, there should be some way for the RIAA to prove that she was a major distributor - like server logs from the ISP or P2P server showing those files were uploaded to others. I argue that if the RIAA has no other evidence that she distributed to 1000s of others - other than that she destroyed her files - then it should be the minimum damage per song. Otherwise, in any case where there is no evidence one way or the other that the songs were further shared, the RIAA could simply make up a number and claim max damages every time. Perhaps a bit different in this case because of the evidence destruction, but in other cases I have read about damages don't seem to be awarded based on how many times the user further infringed by distributing, but were more based on how many songs total they had.
I concede that if a person has 1000 songs they probably deserve a bigger punishment than a person that had only 10. But it should also hold true that a person who has 1000 songs and never shared them with anyone else (P2P app sharing turned off) should face a lower fine than someone who had 1000 songs but shared each one 500 times.

Re:wow

[Jtheletter]

Once again, I understand the difference between civil and criminal cases re burden of proof. Criminal being "beyond a reasonable doubt" and civil being "preponderance of evindence." Perhaps people think I'm making that mistake because my example of being punished for a "could have" was a criminal offense.

What I'm saying is that the court shouldn't award max per-song damages simply because the defendent "could have" further shared each song thousands of times. There should be a requirement (to whatever burden of proof) that further sharing did occur. Otherwise, in every case where the RIAA has no evidence whether the person only had a personal copy and P2P sharing turned off, or if they were in fact a major redistributor, they would simply claim "your honor we think the defendent shared each song a million-billion times and we should receive the max per-song damages of $150,000." Why? Because the defendent "could have" shared it that many times. *I think that* during the damages phase the RIAA needs to prove that the defendent further shared the song with others, therefore making per-song damages higher. Just saying it's possible they shared each song 5000 times is not enough to increase damages. In that case, there's no proof at all! Not even a preponderance of evidence, merely the conjecture that it's a possibility.
I base my statements on cases I have read about on /. and some on groklaw. In all of those I've read about I have not seen this type of thing taken into account. Instead it seems to be the more songs you had, the bigger the per-song damage. As if simply having more songs to pay the damages for weren't a big enough punishment! If this isn't the case then please feel free to correct me (links please!) and I will rescind my stance. But I have yet to see the RIAA lawyers come forward and say "your honor we have further proof this person shared each song with others multiple times and therefore ask for greater per-song damages." Or the opposite: "Your honor, we see that the defendent had sharing turned off and did not further distribute the songs so the minimum damages should be sufficient here." Of course, no lawayer would ever utter the latter, but I've not seen the former either.

Re:wow

[d_jedi]

I'm actually referring to both. On the balance of probabilities, if someone on a filesharing network has P2P sharing turned on, it's likely that they've distributed at least some files to other users.

Whether file sharing is turned on, and how many files are actually in the shared folder are the factors at play here, to determine if distribution likely took place (remember the standard of proof in a civil case is not "beyond a reasonable doubt" as in criminal ones..). If file sharing was on and the 200 files were in the shared folder, the penalties would likely go towards the higher end, while if sharing was off/no files in shared folder, it's likely there was no distribution (and hence the lower penalty for copyright infringement). The defendant's computer setup would determine which of these scenerios existed. But given that the defendant destroyed evidence (unequivocally, a very bad thing to do, no matter what your opinion on P2P filesharing is..) the court will assume the worst.

Now, the big question is (I've sort of assumed it above) is.. is having copyright protected files in a P2P shared folder, with sharing turned on in the P2P program, enough to conclude that illegal distribution has taken place? I don't think the courts have answered that question, yet..

Re:wow

[badfish99]

No, the issue here is violation of copyright. The judgement explicitly states that the defendant is being given the maximum possible penalty for the copyright infringement because the evidence has been destroyed. No criminal charges were mentioned. My point is that the penalty for copyright infringement should not be so severe.

Re:wow

[magisterx]

I am not an expert, however the copyright nomenclature is slightly misleading. It was never intended to protect the right to copy something, it was intended to protect the right to profit from those copies. While major media institutions are trying to change it(with some succcess), it was once very well established that individuals could make backup copies of software and I have yet to hear of anyone contesting your privilege of making photocopies of a book you own so that you can make notes and highlights without damaging the original.

Generally the right to copy and distribute (or copy something you borrowed, which has the effect of copying and distributing) is reserved for the right holder, but there are exceptions even for that. For instance, it is widely practiced and generally accepted that teachers and instructors may make a reasonable number of copies of an article or excerpt in order to instruct their class. Relatively large swaths of a work may be copied for the purpose of critique, and concepts may be borrowed quite liberally without permission for the case of parody.

Naturally, major media company's are trying to strengthen copyright to obscene levels, but to capture its original intent it may be more accurate to refer to it as profit-right.

Re:wow

[SteveAyre]

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.

Re:wow

[ScrewMaster]

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..

No it's not. Copyright law precedes the Internet by a couple of hundred years, and those dollar amounts were intended as a deterrent against criminal mass-production and resale of copyrighted works. That's understandable (if ineffective) and fair-use was supposed to prevent individuals from being persecuted by copyright owners. The fact such insane numbers are being applied to individuals is abusive beyond belief. Copyright law is simply not with the times when it comes to modern telecommunications, it just isn't. That judge is full of it ... frankly, I'd like to see his bank account records for the past few months. At what point does Congress wake up and realize that their negligence (if not outright malfeasance: see Hatch, Orrin) is causing a lot of people a world of hurt? Of course, that applies to pretty much everything those pricks do, so I'm not holding my breath.

Re:wow

[Legalese]

The historical purpose of copyright is utilitarian in nature. The Constitution says nothing about monetary incentive, however, this notion of incentive is based on the framer's intent to promote further creation. From the framers' standpoint an informed public was essential to bolstering the representative democracy they were strugging to create and maintain, you could only keep an informed public through the creation of literary works, etc. The problem, however, was the framers were afraid these works would not be created and the flow of information would be hindered if there were no monetary incentive to create. In order to better serve the public good, the exclusive rights associated with copyright (see the Copyright Act of 1976 for a full list of all rights granted to a copyright holder--not just the rights to compensation or reproduction) were created to ensure those who labored to create would be adequately compensated. Compensation would lead to more creation and a better informed public. I do not feel that compensation is the only or most important incentive to encourage creation, but I feel that the history behind the monetary incentive is important to note for this discussion.

Re:wow

[10101001 10101001]

I mostly agree, but I'd have to say that it wasn't so much the right to compensation as the right to the potential for compensation. The free market then actually is a good way of filtering out the "good" ideas because those that manage to be compensated are those that sell well. And so they are the ones that are more likely to produce sequals. The major problem is that many people have taken copyright to be an actual *right*. They feel not only that they're entitled to ownership and control over their work, but that they have the right to be paid effectively indefinitely. Further, they feel that they have a right to be compensated completely and that anyone who manages to use their work without paying should be punished some way, even if it's because someone discarded a newspaper.

Now, clearly something like P2P is quite different from this, but all the proclamations of the RIAA and MPAA seem to be words of entitlement. Copyright is far from this. Talk about "theft" really only furthers this idea. I really do fear that until people drill in into peoples head that compensation is a *side-effect*, copyright will only further spiral out of control. People will really have to start saying that artists don't deserve compensation. It's something that is granted to them. I wonder if renaming copyright to copygrant would change this. And while I don't subscribe to the idea that it's the unjustness of copyright that is causing so many people to pirate, I can imagine that a more sane copyright period (ie, 14-28 years) would see a lot more people doing legitimiate public domain trading. Certainly, P2P is good evidence that the mass trading of free music isn't sufficient to stop the production of new music (and almost lampoons the idea that copyright is even necessary for its stated purpose; of course, the fact that the real world still sees harsh enforcement of copyright makes it hard to really test). In any case, public domain trading shouldn't be a valid excuse against having a short copyright period.

Re:wow

[LinuxLuver]

US copyright - at 75 years - is stupid.

These companies effectively monopolise popular culture, yet refuse to allow or accept that the culture they create can be shared by the hundreds of millions who partake of that culture (and who - in real terms - have little choice in the matter).

If the RIAA, MPAA and their media partners are going to attempt to monopolize popular culture, they will have to accept that the people who buy into it are going to reject the idea they are cash-paying users of something they may feel in their bones IS them and defines them.

The law may make all these people criminals, but the law will merely be proven to be an ass.

The bottom line is a very simple one: culture is shared - not owned.

That the law attempts to ignore this merely demonstrates the law is an ass.

Money? Make money performing.....like people have for thousands of years. If you write a song or make a movie and the public embrace it, internalise it and honor you by doing so, then do them the courtesy of understanding you have been an important part of creating culture......not property.

Re:wow

[mibus]

Any large crime against someone on the Aussie mainland would get you extradition.

Bhahhahaha, I doubt it. Our government apparently has no ability to actually talk to other nations... (at least, when it's our citizens overseas they can't ;)

Stupid?

[mseeger]

Hi,

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

Re:Stupid?

[StrongGlad]

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. Specifically, he noted that iMesh and BearShare were installed at one time, and were configured to use the handle, "ugotburnedby21".

The defendant's own expert witness, who also examined the hard drive, conceded that data had been deleted, but suggested that a defrag utility was to blame. The court didn't buy this explanation, however.

If you're interested, read the court's order (please be gentle with my server :-).

Re:Stupid?

[m874t232]

The question for me is: How did they proved the data was destroyed after the defendant receivced the court order?

Isn't it obvious? They couldn't find any pirated files, so she must have wiped it clean!

Re:Stupid?

[Sod75]

hmmm...on the first page of that court order...
"Data were first deleted in December 2006..."

they knew she was going to download and delete files in the future !

won't get her out of it I guess ....

Re:Stupid?

[commodoresloat]

(please be gentle with my server :-).

I was very gentle. I clicked the link as lightly as possible.

Re:Stupid?

[Threni]

> 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".

Re:Stupid?

[KinkifyTheNation]

Or simply replaced the hard drive with a new one.

Re:Stupid?

[gweihir]

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. Specifically, he noted that iMesh and BearShare were installed at one time, and were configured to use the handle, "ugotburnedby21".

Stupid. If there was anything left to find, or anything hat pointed to when the wiping was done, then the disk was not wiped. More likely this person only wiped specific folders. To say it again: You have to wipe the complete drive. You have to sacrifice your installation. Only then will no evidence be left and no evidence that can tell when the drive was wiped.

Of course this usually applies to protecting confidential data, such as when giving old drives to charity, selling them or discarding them without physical destruction. The "destruction of evidence" is a minor application, but illustrates well what can happen if you use sloppy security procedures.

Re:Stupid?

[glesga_kiss]

Sounds like a valid judgement then; she specifically cleaned up the PC and removed the p2p apps. She'd have been better reinstalling windows entirely, at least there are valid reasons for that e.g. Windows Half Life (no, not the game).

Re:Stupid?

[MobileC]

From the Courts Order...
"Data were first deleted in December 2006"

OK.
So she time-travels as well.

Re:Stupid?

[bky1701]

Or pluged the wrong power cord in (it really does the trick, too)... or had a power surge... or it fell out of a 30th floor window...

Re:Stupid?

[westlake]

It would have been so much easier had her computer simply been "stolen".

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.

Re:Stupid?

[Grym]

Or pluged the wrong power cord in (it really does the trick, too)... or had a power surge... or it fell out of a 30th floor window...

Not that I'm advocating one should do this, but be careful there. If they still want the damaged drive, don't assume that the data won't still be there. Don't end up like this chick and and be sloppy about itif you're going to do it. Burning out the controller interface does NOT delete the data on the drive--it just makes it hard to get to. Similarly dropping it is no gauarentee of anything either.

-Grym

Re:Stupid?

[cortana]

Insufficient. You should at least use shred(1). Even then, data on blocks marked as bad by the drive firmware won't be deleted. Check your drive's documentation; if you are lucky then there may be a command you can send to it to erase everything.

Re:Stupid?

[Master Ben]

What about slaving the drive to another and then wiping the files that way?

Re:Stupid?

[twistedsymphony]

yeah I've heard of some extreme cases where they were able to swap out the control board with a fresh one to get the data out (if you were hardcore and had access to a clean room you might be able to swap out the platters too)

The best way to destroy data on a hard drive is to open it up and smash the platters, if your in a hurry a bulk tape eraser or other large magnetic device is also good.

As for myself I keep all my downloads on an external USB 2.0 drive, simply unplug it and poof, it's as if the data was never on the machine in the first place. Of course this is just a happy consequence of my machine, being that it's liquid-cooled two hard drives are mounted to a cooler, I needed more space so rather then ripping one of the smaller ones out I just put it in an enclosure.

Re:Stupid?

[plague3106]

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. Specifically, he noted that iMesh and BearShare were installed at one time, and were configured to use the handle, "ugotburnedby21".

That's a pretty interesting claim don't you think, considering they had not yet examined the drive. Because 'bear share' was used at a certain ip address does not mean its installed on a machine using that address. It could have been someone else, it could have been another computer all together.

Re:Stupid?

[norman619]

LOL! Sorry but reporting it stolen is a good idea. Computers are so cheap now that getting another one wouldn't be hard. Just back up the stuff you wanna keep and off to mexico the PC goes!

Re:Stupid?

[maynard]

Where I work we wipe hard disks with a drill press or a sledgehammer. Seriously.

Re:Stupid?

[kthejoker]

You are not required by law to file a police report every time something is stolen.

My wife's iPod Nano was stolen out of a gym locker; perhaps it'll be found later containing mp3s with tags clearly indicating they're illegally downloaded copies. Am I going to be held responsible? Of course not. Ridiculous.

Re:Stupid?

[hcob$]

Stupid. If there was anything left to find, or anything hat pointed to when the wiping was done, then the disk was not wiped. More likely this person only wiped specific folders. To say it again: You have to wipe the complete drive. You have to sacrifice your installation. Only then will no evidence be left and no evidence that can tell when the drive was wiped.

Which is why I have 3 degauss rings built inside my case... One for each axis... If they want my data, they are going to have to work really hard to find anything.

Re:Stupid?

[norman619]

A simple low-level format of the drive should have been enough to keep them from pulling anything from it.

Re:Stupid?

[bigdavesmith]

Honestly curious... Could you really get away with that?

I mean, disposing of the computer wouldn't be hard, just put it with the bod-i mean... In an area like where I live, I could take it out into the street and nuke it and I don't think anyone would notice, but would it work ok on the legal side? Recieve notice, 'dispose' of the computer, report it as stole, and boom, it's gone? Do you have to have some kind of proof that there was a break in? Would a court accept this as an amazing coincidence?

Re:Stupid?

[tomhudson]

better to do dd if=/dev/random of=/dev/hda

Writing all zeroes makes it easier to find the "fossil traces" of how the bits were previously arranged, if they want to go to the expense of moving the platters to a special head/controller assembly.

Then say a virus ate it. It would be true - Microsoft has gone on record as saying Linux and the GPL are viral.

Re:Stupid?

[tomhudson]

"Where I work we wipe hard disks with a drill press or a sledgehammer. Seriously."

Don't forget to save the magnets. They're super-powerful, and come in handy for the darnest things.

Re:Stupid?

[lardbottom]

I would mod you down, but *yawn*.

Simply give your computer to Jimmy Hoffa. I'm sure the fishes would like swimming through the case next to your Nvidia card and internal neon tube lighting. Someone who fileshares recklessly probably wouldn't think about it anyway. (criminal mind?)

However, claiming it was stolen by reporting it is stupid. Most deductibles for home theft won't even cover it. It's mostly just a waste of time to report something like that. It's not like anyone does anything. I did get a stolen bicycle back once. I was floored. But I registered the number, so it was traceable. Most of the time, I doubt there would be anything traceable from your computer, unless you got it from Dell (or similar).

Some people think the law is black and white, but it's very gray to me. People get let off the hook for hainous things because of the heart-strings of the jury/judge/policeman, and others get whacked mercilessly for small things because of the color of their skin. It's all so stupid.

Besides, compounding pointless "stupidity and recklessness" comments with bad spelling makes sense only to you.

Re:Stupid?

[DaveV1.0]

Of course if you keep all your documents on a second hard drive, you can:

1. get a third drive.
   
2. copy data you want to keep to third drive.
   
3. wipe second drive.
   
4. swap second drive with third drive
   
5. disassemble second drive
   
6. take second drive parts to local recycling center. Remember, that hard drive is about 90% aluminum.
   
7. Profit!
   

Re:Stupid?

[Verteiron]

As for myself I keep all my downloads on an external USB 2.0 drive, simply unplug it and poof, it's as if the data was never on the machine in the first place

Don't bet on it. Every filesharing (or browsing, or download manager) program out there creates temporary copies of the data while it performs the download. Unless you've specifically set temporary file location set to the USB drive as well, your files are probably being written to a temp location on the system drive. Sometimes (depending on the program) these files don't even get deleted.

Re:Stupid?

[szembek]

I'm curious about this design. I don't know much about degaussing rings, but if I'm not mistaken they typically need electricity to function don't they? So in this case as long as the PC wasn't plugged in when they were removing the drive, the rings would have no effect. Or is this something set up so that when you flip a switch it wipes the drives? I would like to see what this setup looks like. If it's effective I think it would make a good Slashdot article.

Re:Stupid?

[tomhudson]

The problem isn't the docs, its the apps, and various system files, registry settings, etc. You need to image your drive right after your initial install (using dd if=/dev/hda of=winxp.img, if hda is the windows partition).

Remembr, you're reading the raw partition, so the type of file system on it doesn't matter - all the bytes are getting copied. Heck, you can even mount the image via the loopback device and edit it.

Re:Stupid?

[toonworld]

Well whatever happened to "Innocent until proven guilty" ?

I think I would have just opened up the hard drive and let a few specs of sand drop in there. "it's not my fault your honor, blame the company who built this crappy hard drive!"

Re:Stupid?

[slashbob22]

Phew.. So did I.

I think we can safely assume that if every Slashdotter practiced the same soft/light clicking on this server it will probably be safe.

Re:Stupid?

[NormalVisual]

To say it again: You have to wipe the complete drive. You have to sacrifice your installation. Only then will no evidence be left and no evidence that can tell when the drive was wiped.

Or just use something like TrueCrypt to begin with.

Re:Stupid?

[KlomDark]

Yah, but virii are like cops - Never there when you need them...

Seriously, where do you go to intentionally get infected with an RC virus? Would be a good defense, but...

Re:Stupid?

[Squozen]

You really know nothing about data forensics, then?

Re:Stupid?

[T.E.D.]

To say it again: You have to wipe the complete drive. You have to sacrifice your installation. Only then will no evidence be left and no evidence that can tell when the drive was wiped.

Actually, that's not enough either. Its actually possible to recover *overwritten* data with the right equipment. That's why government classified electronics go through a zeroizing procedure where a pattern of 1s and 0's are written repeatedly through everything when classified data needs to be erased.

Re:Stupid?

[lohphat]

Nope, try again. Like a locked garage, you must surrender the keys once subpoenaed.

Re:Stupid?

[GeckoX]

Whoosh...

Yeah, um, send 500$ and I'll get you all set up...

Re:Stupid?

[Tekzel]

Ah yea, have a rechargable battery in there hooked up to the rings. Have a deadman switch hooked up to the side case and a secret cutoff switch elsewhere that lets you bypass it. If you open the case without hitting the cutoff, the deadman switch triggers the degauss rings from the battery. By George, it might just work!

Re:Stupid?

[harlows_monkeys]

Insufficient. You should at least use shred(1)

And make sure you are using a filesystem that overwrites blocks in place. The most common Linux filesystems (ReiserFS and ext3) do NOT always overwrite blocks in place, so shred is not always effective on them.

Re:Stupid?

[jonwil]

They would just supoena both drives (and any recordable CDs, floppy disks, zip disks, USB thumb drives or anything else that might have illegally copied music on it)

Re:Stupid?

[KDR_11k]

If you steal something and give it back later you are still liable for theft. Same for copyright infringement, if you make illegal copies, even if you destroy them later, you are still liable.

Re:Stupid?

[DaveV1.0]

Mere existance of the P2P software is not proof of guilt. If the software is there, but no evidence of infringing files can be found, then the plaintif has a problem of explaining where the infringing information went.

Granted my method works best if one downloads non-infringing items, but it will work none the less.

Re:Stupid?

[joto]

yeah I've heard of some extreme cases where they were able to swap out the control board with a fresh one to get the data out (if you were hardcore and had access to a clean room you might be able to swap out the platters too)

You consider this extreme? Given todays data densities on hard-drives, even a small piece of a platter can contain lots of data usable to "the enemy". They don't need the whole disk to be put into a standard disk controller to be able to read it. All they need is time, dedication, and the right equipment.

The best way to destroy data on a hard drive is to open it up and smash the platters, if your in a hurry a bulk tape eraser or other large magnetic device is also good.

No, see above. Of course grinding the platters to powder, or melting them, or dissolve them in acid is good enough. A bulk tape erase or other large magnetic device is no good. Sorry, but you just won't find powerful enough magnets in a common household (or anywhere else, outside special laboratories).

The easiest way is to simply overwrite the data with random data many times.

As for myself I keep all my downloads on an external USB 2.0 drive, simply unplug it and poof, it's as if the data was never on the machine in the first place. Of course this is just a happy consequence of my machine, being that it's liquid-cooled two hard drives are mounted to a cooler, I needed more space so rather then ripping one of the smaller ones out I just put it in an enclosure.

So what about cache files, log files, swap space, etc? Sorry, you may feel safer, but you really aren't.

Re:Stupid?

[TheCarp]

Right.... but its easy to prove the drive was wiped. Its hard to prove that you remember your passphrase, or didn't lose the little USB key fob that has the keys on it.

"Sorry man, I lost the key, it sucks, I am going to have to rebuild the box too"

Sure it looks bad, but... nowhere near as bad as being caught wiping the drive.

-Steve

Re:Stupid?

[sdo1]

Is it just me, or when someone types "please be gentle with my server" does it seem like an open invitation to see if it's still alive. I would never have though twice about clicking on that link except to see if your server was dead or not (seems to be OK).

-S

Re:Stupid?

[cortana]

Oh, definately. I think the shred(1) manual even states this fact. I was speaking about using shred to erase an entire disk, in which case you only have to worry about the clever tricks played by modern disks to cover up bad blocks and other errors.

Re:Stupid?

[l33t_f33t]

I belive the wording of the verdict still reads either: Guilty, or not guilty. And *NOT* guilty or innocent. I.E. You have to prove that you Aren't guilty, and not that you are innocent. This is one of the most important wordings in the english language. And because of this wording you still remain innocent until proven guilty.

Re:Stupid?

[qeveren]

Oops, I lost the USB key I kept them on...

Re:Stupid?

[foniksonik]

And thus the reason for so many lawyers in the world.... the law is grey and their job is to tint it in the eyes of the jury/judge as close to black or white as they can to get the outcome you pay them to get. So either don't commit crimes or be willing to pay a lot to persuade reality in your favor.

Re:Stupid?

[jonwil]

Just use the encryption program/mode that has multiple levels of encryption.
Have level 0 (no encryption) contain the OS, drivers, office program etc.
Have level 1 contain, say, some family photos or somthing
Level 2 could contain financial records and other really sensitive private data (the sort of thing you would put in a safe if it was printed out on paper)
Level 3 could then contain the p2p software and illegal files.
RIAA comes knocking, hand over the passwords for levels 1 and 2. No matter how hard they try, they could never even identify the existance of level 3, much less decrypt or identify any contents that might be on it. And, they cant force you to hand over the password to level 3 because the design means that you can claim level 3 doesnt exist. (without the password, level 3 and all evidence of its existance is indistiguishable from random garbage)

Re:Stupid?

[Zaatxe]

Replacing the hard disk seems enough for me...

Re:Stupid?

[98percentChimp]

You are absolutely correct.

If the defendant was going to destroy evidence without wiping the entire hard drive, she should be fully aware of all of the system artifacts left by the activity she was trying to deny, and then remove them. However, the risk that she would miss something is too great (Obviously). Does your "evidence deletion/wiping software" know about logs left by an application, .ini files with usernames and settings, registry entries with user names and settings or last visited IPs, etc.

If the defendant had wiped the entire hard drive, she could have claimed that she had done so before the court order to turn the drive over - because if an entire drive had been zero'd out, there would be no date/time stamps to indicate when that wipe had occurred. By leaving the file system intact, she left all of the NTFS or FAT32 modified/accessed/create times linked to any files that she did not know about and remove. Furthermore she left any date/time stamps that may have been in those files. This allowed the plaintiff's forensic expert to construct a timeline of some activity regardless of the deletions that did occur.

On one hand, this is another example of the RIAA having resources and knowledge that your average Joe does not (Computer forensics experts are expensive). Most defendants against RIAA lawsuits can't overcome the resources at the RIAA's disposal which they apparently sling at anybody who crosses their path, innocent or no. On the other hand, I respect the court's judgement. If she had wiped the entire drive to protect personal data, that would have been at least respectable. But she just tried to remove file sharing artifacts, she did a bad job of it, and she did it after the court order. That's just bad news. Trying to run after you've been busted just makes you look more guilty. She must have never watched Cops.

Re:Stupid?

[jdbear]

TrueCrypt allows for that. It has an encryption system based on steganography of random data, such that one can create a benign encrypted volume, and a hidden volume within that encrypted enclosure. This give plausible deniability.

See the documentation. Basically, when they demand the keys, give them the "safe" data password, while never divulging that fact that the real data is still hidden with another password.

Re:Stupid?

[hummdinger02]

Or opt for whole drive encryption and just eat the key if someone wants the contents! :-)

On this note it is useful to use full drive encryption when sensative data is on a drive because even if you "erase" data a motivated individual or government (more likely) can recover much of that data. So why not make them jump through another hoop and make them spend some MIPS on trying to crack the encrption on a drive that they can't recover all of!

Re:Stupid?

[swilver]

It's far easier, just encrypt the drive, then give out the wrong password. When they find out everything is a garbled mess, claim you wiped the drive months ago -- there's no way to prove that you didn't really wipe the drive but just gave out a bad password, and they can't prove when you wiped the drive (ie, before or after you got a court order).

Re:Stupid?

[Threni]

> Did your report the theft?

I've had my bicycle was stolen and didn't tell the police. I don't have to tell the police anything. It would hurt my no claims bonus (worth more than a cheap bike) and wouldn't get the bike back. I wasn't using it much anyway. We don't have misdeameanor and felonys in the UK, thanks anyway. Downloading music isn't stupid, and `reckleesness` isn't how you spell it.

Other than that, I agree with everything in your post.

Re:Stupid?

[phulegart]

As for myself I keep all my downloads on an external USB 2.0 drive, simply unplug it and poof, it's as if the data was never on the machine in the first place. Of course this is just a happy consequence of my machine, being that it's liquid-cooled two hard drives are mounted to a cooler, I needed more space so rather then ripping one of the smaller ones out I just put it in an enclosure.

I think you need to pay attention to everyone's comments on this one. You should also take a look at your registry. You will find plenty of evidence in that single file alone that not only points to the existance of your USB drive, but what was on it, especially if you used any software that accessed data directly off that drive (as opposed to first copying the desired file off the USB drive and onto a non-portable one, then accessing it).

Re:Stupid?

[jo42]

My wife's iPod Nano was stolen out of a gym locker; perhaps it'll be found later containing mp3s with tags clearly indicating they're illegally downloaded copies. Am I going to be held responsible?

Now, don't be giving the RIAA any new idears...

Re:Stupid?

[dgatwood]

Nope. Guilt has no place in a civil suit. In civil suits, you are either held liable or not liable.

This article is a good summary.

Re:Stupid?

[johnshirley]

The RIAA attorney asked her, "Did you wipe this drive?" The defendant replied, "Yes... with Formula 409 and a damp rag..." At that point, with the admission of guilt, the RIAA attorneys sent their so-called "experts" out to find out more about this "Formula 409" program.

Re:Stupid?

[thePowerOfGrayskull]

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!

Re:Stupid?

[sabernet]

do that but replace "degauss rings" which wouldn't work well with the HDD shielding with "thermite detonator":)

Re:Stupid?

[kannibal_klown]

I image my harddrives twice after every initial install. Once for the OS and necessary installs (JRE, Textpad, Winzip) and once after I install my office suite and dev tools.

However, there's a flaw with your strategy. Any IT guy worth his snuff will could tell you rolled back.

"Hmm, Mr Anderson I see you installed Windows XP later year. Yet for some reason you installed a years worth of MS Updates yesterday. I also noticed that there are no other files created between last year and yesterday. Per chance, have you rolled back to an image?"

Re:Stupid?

[fireweaver]

Have interchangeable "guilty" and "innocent" disk drives, each of which is bootable. You use your "guilty" drive to download songs and stuff, and your "innocent" drive for everything else. Convert your songs to playable CDs for convenience, and keep the "guilty" drive stowed away out of sight. Keep several other drives (which may or may not be loaded with an OS) laying around as both spares and decoys. When the RIAA comes knocking, go ahead and hand over your "innocent" drive and a couple of the spares and decoys. Problem mitigated.

Re:Stupid?

[isellmacs]

yeah I've heard of some extreme cases where they were able to swap out the control board with a fresh one to get the data out (if you were hardcore and had access to a clean room you might be able to swap out the platters too)

I used to do this routinely on CRT iMacs, which generally blew out the control chip on the harddrive after a couple years. I kept on-hand several working control boards, and would just swap the board, then extract all the data onto a new, good drive. I should note, though, that leaving the foreign controller board on the HDD corrupted the data after a few weeks, so it's only worth doing this short term to transfer to a new, fully functional hard drive. I recommend to any good tech to should try and salvage working controller boards whenever possible.

Re:Stupid?

[AmberBlackCat]

Maybe she should have melted it down and blamed it on an exploding battery...?

Re:Stupid?

[l_bratch]

I saw this too. Is this the actual court document? Surely such an error renders this document invalid.

Re:Stupid?

[ericdano]

That is why you'd get a program like sdelete (free from WinInternals) and have it scrub the free space periodically.

Re:Stupid?

[AJWM]

I've heard of some extreme cases where they were able to swap out the control board with a fresh one to get the data out

Been there, done that, still have the burnt out drive electronics (a PSU failed badly, sending high voltage to the system, and the power surge literally exploded one of the chips on the drive card and burned off a few traces). It was an old Seagate SCSI drive. Fortunately I had a couple of others of the same model. Just swapped the circuit board on the drive and rescued the data.

(Unfortunately the other drive that fried (an IDE drive) I didn't have a replacment for, and even though the manufacturer still produced that model, they'd changed some details and the circuit boards were no longer physically compatible. Haven't tried the platter swap. Of course the power surge fried just about everything else in the computer too.)

Re:Stupid?

[Eq 7-2521]

I didn't click, assuming I could just infer the contents from the ensuing slashdot comments. Definitely doing my part.

Re:Stupid?

[PoopMonkey]

Like a locked garage, you must surrender the keys once subpoenaed.

Fortunately, the truecrypt folks thought about that. See plausible-deniability about that.

Re:Stupid?

[Jett]

At work we had some old drives we had to "erase" before they were disposed of. We powered them up and then took magnets from previously destroyed hard drives and rubbed them back and forth across the HDD casings. It made lots of very exciting noises. Not sure how effective this is (we took the drives apart afterwards just to be sure) but it seems like attacking a spinning drive with a powerful magnet should do the trick. Of course it is probably obvious that the drive didn't die on its own so you're still screwed in court.

Re:Stupid?

[twistedsymphony]

Well I don't actually download anything that **AAs would care about. Just figured that if I DID ever pirate anything they'd care about it might make for a clean escape... Thanks for the tips though

Most of the time I use a torrent client "installed" (IIRC it doesn't actually install it's just an executable) and cached to that drive. Everything downloads straight there and then I'll copy it to one of the other drives if I need to do anything to it. Any ideas where one would lock down traceability further?

Re:Stupid?

[penguin_dance]

First off--if she used two "disk-cleaner utility programs," she needs to get her money back because they obviously didn't do the job.

Secondly, if the RIAA had the evidence and had tracked her down why didn't they just serve a warrant and seize the hard drive? Why wait and expect her to bring it in? I've bought duplicate drives before, same make/model. Would have been a piece of cake to simply switch one out for the other. Destroy (as with a large heavy object after truely wiping it) and discard the "bad drive".

And as to her turning over the hard drive--isn't that a violation of the 5th amendment in that she would be incriminating herself?

Re:Stupid?

[rifter]

However, claiming it was stolen by reporting it is stupid. Most deductibles for home theft won't even cover it. It's mostly just a waste of time to report something like that. It's not like anyone does anything. I did get a stolen bicycle back once. I was floored. But I registered the number, so it was traceable. Most of the time, I doubt there would be anything traceable from your computer, unless you got it from Dell (or similar).

No, *not* reporting it as stolen would be stupid. Law enforcement and the courts seem to take your reporting an item stolen as evidence that suggests that it may truly have been stolen. If anything it provides documentation of the time that it was stolen (among other things, since you have to give a statement in order to make a report). It also puts you on the hook for a pretty serious crime (filing a false police report) if you are lying, which increases the probability that you are not lying about the theft.

That's not to say that people don't lie or that the police always believe you. And if they nail you for it you've increased your crimes. But if you have already decided your plan is to claim the thing was stolen, you'd better report it because not doing so makes you seem like a liar.

As for the utility of making such reports when things really are stolen, it seems that you are right unless insurance is involved. The police don't seem to have time to track down criminals that don't run into them by accident, and they certainly don't sweat over recovering stolen property. As a result they rarely do, and even then there are plenty of reports where instead of returning the property the police just kept and used it themselves. Still, the possibility of the item being returned if you do not report it is 0% versus the 0.000001% you get if you report it, so....

Re:Stupid?

[BalanceOfJudgement]

Nope, try again. Like a locked garage, you must surrender the keys once subpoenaed.

I know they're trying to enforce that as law in the UK, but as yet, that is still considered self-incrimination in the US and is protected by the 5th Amendment.

Now, I don't expect that to remain true much longer, but at least for now..

Re:Stupid?

[rifter]

Mere existance of the P2P software is not proof of guilt. If the software is there, but no evidence of infringing files can be found, then the plaintif has a problem of explaining where the infringing information went.

They were able to determine the handle the person used, though. And I think it is safe to say that the RIAA had other evidence that someone with that handle from the defendant's ip address (and ultimately physical address) was uploading the files in question.

Re:Stupid?

[monkeydo]

It's still spoliation, and you still lose. You have evidence in your possesion and you are failing to produce it. Judgement for the plaintiff.

Re:Stupid?

[spamchang]

Given that the plaintiffs had an alleged date of the 'crime,' you'd have to use a hard drive purchased before the date that you were served the summons, evidence request, or such. Furthermore, I presume the hard drive doctors working for the RIAA would be smart enough to look at the timestamp of the software install, etc etc. It'd be really fishy to see "old" files installed the day after you receive the request for evidence. Also, fudging your BIOS clock doesn't work either if you reformat and reinstall, with every file bearing the exact same time/date of creation and a 2-3 year gap between the installation's last accessed date and the current date.

I guess these file deleting utility programs aren't worth their weight in gym socks if the plaintiff experts could dredge up the presence of recently-deleted filesharing programs AND the username associated with their use. Might have been leftover registry entries or unique DLL files...

My guess is that your best solution is to change your username to something very, very common: anonymous. (Something like that.) And then you can just burn your mp3s to CD, flash drive, ANOTHER HARD DRIVE (and don't forget to delete the originals--the deleted data will get written over eventually, and you might be ok). Don't dl directly to the other hard drive unless you can get rid of the programs as well--I'm sure the registry entry that tells the P2P program will clue drive doctors in to asking for the other drive if you don't delete it. But they'll never know if you've burned CDs or copied to other drives AFAIK.

Re:Stupid?

[gweihir]

Where I work we wipe hard disks with a drill press or a sledgehammer. Seriously.

Unless you do that very carefully, it is actually less secure than overwriting today.

Re:Stupid?

[Anonymous Coward]

The Court Order indicates that they didn't have to prove when the data was destroyed because the Defendant admitted that the deletions ("wiping") took place between certain dates. Instead of arguing about when it happened, the Defendant got too cute, blaming the deletions on a defrag utility, and claiming that the deletions were not intentional. The Court didn't buy it.

Re:Stupid?

[nasor]

Suppose I regularly use a high-security file erasing utility to delete files that contain sensitive information - say, the personal account information of former customers who no longer do business with me. My harddrive contains many areas where files have been blatantly overwritten with zeros. Am I automatically liable if the RIAA sues me?

Re:Stupid?

[maynard]

That's interesting. It is currently DOE mandated that all drives affiliated with DOE funded projects be physically destroyed after use. I'm curious to know how someone could take bits of shattered platter and extract useful data.

Re:Stupid?

[shmlco]

Or simply didn't steal the music in the first place. Odd how few people mention that particular option.

But hey, feel free to enter the RIAA lottery. You too have a chance to win!

Re:Stupid?

[PlusFiveTroll]

Quick, learn too much for your own good

Look in to using TrueCrypt + TC Temp, this will setup a truecrypt volume at bootup, set windows to use this drive as the TMP and TEMP directories, make sure your user profile in windows uses it as temporary storage also (think IE cache). Set your windows swap file to use the TCTEMP volume also.

Setup a second truecrypt volume for your file sharing program and songs, do not copy the songs or other files to and unencrypted part of the hard drive. Run MRU blaster and Adaware to keep the recent file lists clear on your programs. Run an eraser program on the free space of your drive weekly as a percaution anyway.

Remember before you delete your filesharing programs and data, uninstall the program first, DO NOT connect to the internet at this time, many programs will register the uninstall on a remote server. After uninstalling the program and zaping the truecrypt volume search the windows registry for left over keys that would show that the program has been installed. Do a full free space wipe on the drive.

Now, hopefully you have a highspeed internet connection, get Wget for windows and set it to recursively download microsoft.com, slashdot.org, ibm.com and any other huge site you can think of till the drive is almost full. Delete these files (but not erase them) then defragment your drive.

Make sure you leave NO TRACE of TrueCrypt or any secure file erasing program on your hard drive.

And make sure your copy of windows is licenced!

And name your political speech and religious freedom mp3s deceptively so they have to listen to 40 hours of essays on freedom of speach and copy right to see if you have one copy of britanny!

Re:Stupid?

[westlake]

You are not required by law to file a police report every time something is stolen

No. But if you are trying to persuade a judge that records under subpoena have suddenly gone missing you had better be able to back up your story.

Re:Stupid?

[IdolizingStewie]

For something relatively small (in the police's eyes, at least) the point of reporting a crime that did occur is not necessarily to get the item returned, but to get it on record that the crime occurred. The police map patrols based on the distribution of crime in the area, so if you want cops around to get that stolen laptop back the next time it happens you'd better make sure they know to be there. Obviously if one person fails to report a crime it's not a big deal, but if lots do, it screws up the aggregate data (see voting).

Re:Stupid?

[twistedcubic]

You are not required by law to file a police report every time something is stolen.

Which country do you speak of?

Re:Stupid?

[Wes Janson]

Why was parent modded funny? You mean you guys don't do that already..?

Re:Stupid?

[Hotawa Hawk-eye]

Or if she disabled her firewall and antivirus software and pulled an all-nighter surfing for porn and warez -- "I didn't delete my hard drive, it was a virus that I must have picked up somewhere."

Re:Stupid?

[bky1701]

Gah, where is internet explorer you when need it?!!!???

Re:Stupid?

[gweihir]

I'm curious to know how someone could take bits of shattered platter and extract useful data.

That is just it. They are not shatterd. Most of the surface may remain intact.

The difference between overwriting is that if done correctly, all data is permanantly erased, no recovery possible, ever. If done wrong recovery is easy and cheap.

If physical destruction is done wrong, recovery is possible, but allways very expensive. You need magnetioc microscopy or something like it, since you cannot spin the platters anymore.

So most physical destruction is less secure than overwriting, but it requires an attacker that is willing to spend a lot of effort and money. Wrongly done overwriting can be attacked by any intelligent and educated person with standard software tools.

Re:Stupid?

[Thomas Shaddack]

"Hmm, Mr Anderson I see you installed Windows XP later year. Yet for some reason you installed a years worth of MS Updates yesterday. I also noticed that there are no other files created between last year and yesterday. Per chance, have you rolled back to an image?"

"Yes, I did. I wanted to get rid of a spyware and less drastic attempts failed. You know, Mr. Judge, they are getting pretty persistent."

Could such "spyware defense" work?

Re:Stupid?

[tomhudson]

Good point. You have to reinstall your image, then install the updates, then reimage. Use a spare partition for that, and copy betwen the partitions. then you're good to go, plus you have the second partition to show that this is your normal procedure (you shuld be doing this anyway if you're running windows).

Re:Stupid?

[l33t_f33t]

thanks for correcting me there. I never realised how stupid the american legeal system was.

Re:Stupid?

[legirons]

"To say it again: You have to wipe the complete drive. You have to sacrifice your installation."

Or just pop your hard drive out and replace it with one containing a clean-looking system.

Re:Stupid?

[mcmaddog]

Where I work, we do a lot of data recovery and swapping out control boards isn't considered extreme, but it does require a control board from an identical HD to work. We are not big enough to stock every HD from every manufacturer so this is the limit to how often we employ this technique, however, companies like Drive Savers that do charge a premium for data recovery probably do have stocks of every HD.

  Needing a 'clean room' to do a platter swap is debateable as well if all you want is the data, but can't afford Drive Savers' prices. I had a HD that died extremely hard in my PowerBook and unfortunately we didn't have a duplicate HD to swap the controller out. We were going to make a 'clean box' to perform a platter swap but in the end just did it in our tech room which is no way considered 'clean'. Although, we weren't successful in recovering any data from my drive (the second side of the second platter had a large gouge ring in it and we have no idea how it could have happened (one of our techs took a screwdriver to a platter and couldn't duplicate the severity)), the drive we used to practice the technique mounted fine while the drive was open and we were able to read and write to it even while we had a ballpoint pen scribbling on the spinning top platter. Obviously you want to take more care, but we were impressed by how hard it was to cause a read/write error let alone a drive failure.

Re:Stupid?

[KinkifyTheNation]

Also notice that she was accused of file sharing, and not file downloading.

Re:Stupid?

[DaveV1.0]

No, no, you misunderstand. OS and apps on one drive. Documents, mp3s, porn, and other assorted data files on another. In fact you, you only really need two drives.

BTW, you can use a neat little script to point the My Documents folder to the second drive. Fun Fun.

Any lawyers here?

[grimJester]

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.

Re:Any lawyers here?

[Trouvist]

To obtain default in a court situation means that you assert some facts to be true, and the other side has to requit the claims. In this case, the court said "you have the files on your harddrive; give them to use to prove or disprove guilt." She defaulted by destroying the proof of her innocence/guilt. She turned over tampered evidence and therefore destroyed her own credibility.

Re:Any lawyers here?

[utlemming]

This would be a civil matter, so a default judgmenet means that the plantif gets what they were asking for, subject to the judges approval. Civil courts do not deal in the absolutes with the mild gray areas of guilty or not guilty. Rather they deal with liable or not liable. If you are in a criminal proceding and you are found not guilty, it does not go to say that you are not civilally liable for the criminal act that you have been found not guilty of, and potentially vice versa. For example, OJ Simpson was found not guilty but was found liable for murder.

In a criminal case there is no such equivalent to a default judgement, becuase of the 5th, 6th and 14th amendment for due process. Unlike other countries, a court cannot try you for a crime if you are not there for the trial. If you fail to show up to court, you get a bench warrent issued for your arrest and you will wait for you day in court in a jail cell. If this was a criminal case (although if it was, then the computer would have been siezed), then it would have been obstruction of justice and maybe destroying evidence.

It is also important to note that some offense have both civil and criminal offenses. For example copyright infringment CAN be both criminal or civil. If you commit a criminal offense the offended can bring a civil suit against you for the criminal act.

Re:Any lawyers here?

[pgpckt]

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.

Re:Any lawyers here?

[bky1701]

What ever happened to innocent until proven guilty? Oh yeah... I guess I forgot to think of the children.

Re:Any lawyers here?

[ray-auch]

Civil law happened to it in this case - innocent until proven guilty is criminal law.

That distinction shouldn't be news - it's been that way for a long time.

Re:Any lawyers here?

[Anonymous Brave Guy]

A default judgment resolves the issue of liability, the first phase. ... Yhere [sic] 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).

I haven't seen anything so far that indicates the number of violations decided. In the TFA it says, "Given that the record companies' expert opined that the defendant had downloaded over 200 sound recordings during 2005, those requested damages will probably be substantial." Did the court accept this figure?

If that is the case, then does the number of downloads matter anyway? I thought under US law it was uploading that was the copyright infringement? I suppose they could be arguing that if P2P software is in use, any downloaded file was likely to be uploaded as well, but I though earlier case law had shown that the exact details had to be supplied for uploads. Maybe that was a different jurisdiction.

Re:Any lawyers here?

[ichigo 2.0]

A moment's panic may well cost someone thirty million.

Christ. With that kind of debt one might as well flip out, blow up the RIAA's HQ and disappear into the middle-east or China. $30 million!

Re:Any lawyers here?

[Stellian]

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.

That's realy interesting, so I had to look it up:

(c) Statutory Damages.--
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

(emphasis mine)
So, in the best case, we are talking about $750 per album. If he had 200 songs that were released on albums (and not singles) it could mean about 20 albums, or $15.000. Bad, but acceptable.

Re:Any lawyers here?

[sealawyer2003]

"In a criminal case there is no such equivalent to a default judgement, becuase of the 5th, 6th and 14th amendment for due process. Unlike other countries, a court cannot try you for a crime if you are not there for the trial. If you fail to show up to court, you get a bench warrent issued for your arrest and you will wait for you day in court in a jail cell. If this was a criminal case (although if it was, then the computer would have been siezed), then it would have been obstruction of justice and maybe destroying evidence." Actually there has been at least one criminal case where defendants skipped town at some point early after the start of trial proceedings and ended up being convict in absentia. Look up the story of Ira Einhorn who killed his girl friend and then bolted to France before his trial began. Einhorn was convicted in absentia. He eventually got a new trial, but only because France would not extradite him without a promise for a new trial.

Re:Any lawyers here?

[nelsonal]

It's the reproduction that is illegal, the creation of a second copy. It's far, far easier to find people who are distributing rather than recieving the content though.

Re:Any lawyers here?

[plague3106]

For example copyright infringment CAN be both criminal or civil. If you commit a criminal offense the offended can bring a civil suit against you for the criminal act.

That doesn't seem right to me. As you pointed out, one can be found liable in a civil court although the criminal court found them not guilty. In other words, there's not enough proof that the person did the act in the first place, so they just go to the civil court to cause more harm because they didn't have enough evidence.

Much like changing traffic laws so that offenses are 'civil.' Its just an end run around the constitution. If you were not found guilty of criminal charges, that should be the end of it.

Re:Any lawyers here?

[voice_of_all_reason]

I think you're confusing the burden of proof (beyond a reasonable doubt vs preponderance of evidence). While the state's standard is lower in a civil case, you are most certainly innocent until they prove otherwise.

At least in theory, which this case demonstrates.

Re:Any lawyers here?

[Dragonslicer]

The difference is in burden of proof. In a criminal case, the defendant must be proven guilty beyond a reasonable doubt. In a civil case, the defendant only has to be proven likely (I can't remember if there's some more precise amount above "50%" likely) to be guilty.

Re:Any lawyers here?

[HuguesT]

Exactly, this sort of extravagant sum is not something the vast majority of people can ever pay up. Talk about destroying someone's life for something relatively petty.

Re:Any lawyers here?

[plague3106]

I realize this; and when civil suits can become criminal or crimanal suits visa versa, its wrong and goes against the idea of double jeopardy. Either the state can punish you for a criminal act, or you can be sued because you caused some financial harm to someone else... but both should not be allowed.

Re:Any lawyers here?

[ray-auch]

No I'm not.

Civil courts determine liability. Criminal courts determine guilt or presume innocence.

Burden of proof is another difference, but not the only one.

Re:Any lawyers here?

[Anonymous Brave Guy]

It's the reproduction that is illegal, the creation of a second copy.

Sure, but UIVMM different jurisdictions take different views on what constitutes the creation of a copy (and have different exceptions/exemptions where making a copy is explicitly not an infringement).

Re:Any lawyers here?

[KDR_11k]

She was proven guilty of destroying evidence. It seems that the punishment for that is to assume the evidence was beneficial for the other party.

Re:Any lawyers here?

[TheRecklessWanderer]

There is also a difference in the burden of proof in a civil case, is there not?

Re:Any lawyers here?

[tomjen]

Could she then not simply claim that all the songs constituted a compilation - so she is liable for $750 to $30000

Re:Any lawyers here?

[kailoran]

We seriously need an "IANAL" checkbox on the "post comment" screen. Will save people a lot of typing.

Check the toilet.

[tacarat]

I'm guessing she actually just flushed the files before SWAT moved in.

Re:Check the toilet.

[DigiShaman]

Back when I had Win98, I used to have my Recycle Bin themed as a toilet. When it was full, the lid was down. When empty, lid was up. As for the sound effect...well...use your imagination ;)

Re:Check the toilet.

[Supersonic1425]

but that would clog the internet tubes! D:

Re:Check the toilet.

[NUBlackshirts]

I believe she swallowed the evidence. As in... "Damn, it's the cops! Quick, eat this!!!" (Although I have no personal experience with this scenario.) ;-)

What the?

[CRC'99]

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".

Re:What the?

[littlem]

"I'm a Windows user, and I happened to receive the summons the day before my monthly OS-reinstall" would probably chime with the experiences of most of the jury...

Re:What the?

[bky1701]

Best excuses of all:

"I use windows, it's not my fault, blame gates!"
"I use Mac OS, don't blame me, it's somewhere in there... I just forgot where... and it seems the OS did, too."
"I use Linux, so it's in there, you are just not looking in the RIGHT /mp3 folder. Look in the other one, /mp3-56765555666543. Or /mp3-44356544454...."

Re:What the?

[bazorg]

I wonder what would the court do if they had found a relatively clean install of any OS and a bunch of MP3s ripped from CDs owned by the defendant.

Re:What the?

[UbuntuDupe]

Or she could say she was trying to install Ubuntu, and GRUB locked her out of her OS's so she had to reformat.

Re:What the?

[Anonymous Coward]

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).

Re:What the?

[Pulse_Instance]

If you do it right and set you bios clock to before the court then maybe change the clock and touch some files a few times on your way back to today then you should be fine.

This seems bogus.

[commodoresloat]

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?

Re:This seems bogus.

[raehl]

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.

Re:This seems bogus.

[commodoresloat]

But evidence destruction is not itself prima facie evidence of guilt. There could be a million reasons why you might have destroyed the evidence, and if one of those reasons is plausible would likely constitute reasonable doubt in a criminal case unless there was other evidence that you actually committed a crime. In a civil case the burden is usually "a preponderence of evidence"; I don't think the evidence that you destroyed evidence would be enough to cut it. Presumably, the record lawyers will claim they have additional evidence but now it doesn't come up - the judgement defaulted to them. In addition, this wasn't the reason given by the court, at least in the article -- the court just said they wanted to punish her for "contempt of court" and obstruction of justice. Those charges do not seem to have been filed against her at all. The article said they wanted to "make an example" of her.

Re:This seems bogus.

[kestasjk]

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).

Re:This seems bogus.

[Sam Ritchie]

How does the court know that you didn't, in a panic, destroy evidence that would have proved you were innocent of the murder? How does the court know that you didn't destroy evidence of an unrelated crime, or possibly just an embarrassing collection of tibetan yak bestiality porn?

Surely different rules would apply to criminal as opposed to civil cases (like this one). I wouldn't think the argument: "evidence appears to have been destroyed, therefore the court must assume you're guilty", could possibly stand up in a murder trial.

Re:This seems bogus.

[vidarh]

What you're saying makes no sense. If the defendant is guilty beyond reasonable doubt without the evidence they destroy, the evidence destruction doesn't matter. These regulations are there exactly for the cases where the tampering with evidence conceals information that might tip the scales.

Otherwise, there would be no reason not to destroy as much evidence as possible for serious crimes, as it might destroy enough that the rest isn't sufficient to get beyond reasonable doubt.

If the defendant claims to not have been the one to tamper with the evidence, then that is a matter that the court should resolve beyond reasonable doubt.

Re:This seems bogus.

[Infosec Geek]

IANAL. But I am a CISSP on a forensics track, and just got finished with a class on forensics and the law.

After noting that I wouldn't cry for more than 10 or 15 milliseconds if the earth opened up and swallowed the entire RIAA right down to the last crooked exec and bloodsucking lawyer .. it is fairly normal for the court to impose sanctions from the bench in cases where deliberate destruction of evidence has been shown to the judge's satisfaction.

The cases I read summaries of, where deliberate evidence tampering was demonstrated to the satifsfaction of the court, didn't go the bench warrnt route. They went the bench sanctions route. And what happened to the defendant (not the plaintiff, BTW, read the article) isn't at all unusual in the light of what I learned. Though RIAA cases were not specifically studied during the course of this work.

The testimony of the defense forensics expert probably clinched matters. There was no real way he was going to lie under oath. You get a name for that and you're done in forensics, period, end of sentence.

Re:This seems bogus.

[commodoresloat]

Do we say to the RIAA (or anyone for that matter) "Good news and bad news. The bad news is that you don't get your compensation, since the defendant destroyed the evidence, but the good news is that justice is still served with a nice healthy week-long jail term!"?

Good question. What was it they said to the people who got screwed by Enron again?

Re:This seems bogus.

[vidarh]

There could be a million reasons, yes, and evidence destruction is NOT taken as prima facie evidence of guilt. What happens is that the court looks at the destroyed "evidence" and considers what that evidence might have meant for the case and takes that into account. If the destroyed evidence, taken in the worst way that is plausible, taken together with whatever other evidence that is available, would be sufficient for a guilty verdict under the evidence standard applicable, then entering a default judgement is perfectly reasonable.

The alternative would be a strong incentive for destroying evidence on the odd chance that you'd not be found out or "worst case" get charged with obstruction of justice.

Re:This seems bogus.

[commodoresloat]

By "plaintiff" I meant the record companies, not the defendant. They're the ones suing. And "sanctions" are sanctions, not a finding of guilt in another matter. The question is, is there any evidence of her guilt besides the destruction of evidence? If so, why doesn't the court take a look at it and evaluate it? If they want to sanction her for tampering with evidence, they should! There are perfectly acceptable criminal sanctions available for such action.

Re:This seems bogus.

[Jekler]

If anyone is ever rewarded for destroying evidence, witness tampering, etc. It is an open invitation to continue that behavior. Instead of learning not to commit the crime (or even not to get caught) you teach the defendant to cover their tracks more thoroughly. On the one hand, giving the defendant the benefit of the doubt is great. But if you allow them to stretch that doubt, and even actively widen the margin of doubt, then nothing at all is a crime so long as the defendant has enough time/resources on their side. You end up with arguments which sound like: "I'm sorry your Honor, there's nothing you can do to prove my client had no reason to incinerate the victim and eject their ashes into space. As it was explained, although my client did have a signed a contract with the victim which clearly stated he was not murdered, my client was then forced to use that contract as kindling to prevent himself from freezing to death in July. My client has a delicate metabolism, 90 degree weather is not enough to sustain my client. Again, it is regretable that all the scientists and the judge who could confirm his condition passed away. No your Honor, that's not a threat. Your predecessors did suffer from a rare form of 'My Body Can't Be Found' syndrome."

Re:This seems bogus.

[AmiMoJo]

The problem with the parent's argument is that, once evidence is destoryed it's impossible to tell what that evidence was. Maybe she was deleting something else incriminating, not music. Maybe she should be charged with fraud or having kiddie porn, the point is how does the court know?

To take the parents example, say you are accused of murder and the police find a knife which could potentially be the murder weapon (right size blade etc) at your house. It's recently been cleaned so there are no finger prints or blood on it any more. How would they know if you had been destorying evidence or just cleaning your cutlery?

Re:This seems bogus.

[commodoresloat]

I don't dispute that, given other evidence, a default judgement may be acceptable. However, in this case, the evidence destruction was taken as prima facie evidence of guilt. At least, no other evidence seems to be discussed in the case. The court simply said, destroying evidence is bad! To punish you, we find you guilty of something else, and we accept the plaintiff's statements of fact on their face, and we deny you any opportunity to contest those statements. I don't think that's ok, especially when the court has other options -- criminal sanctions -- and the record company could still pursue its case based on whatever other evidence that they have.

Re:This seems bogus.

[vidarh]

The court doesn't know. Which is exactly why destroying evidence is such a serious crime. To take it further: The court also doesn't know whether you destroyed evidence that would have proved someone else did it, or that would have implied other people. Destroying evidence makes it impossible for justice to be done, and so the court has the discretion to treat any destruction of evidence extremely harshly.

Now, of course, the court must be convinced that you were the one who destroyed the evidence, and that it was intentional. It's not "evidence appears to have been destroyed, therefore the court must assume you're guilty", but that the court has found it proven that YOU destroyed evidence, willfully, despite knowing about the court case, and therefore the court is required to consider taking the evidence in the worst way a reasonable person would interpret it, and if the destroyed evidence taken in that way together with any other evidence presented would meet the evidence standard required, then the court may decide to enter a default judgement.

Re:This seems bogus.

[vidarh]

In this case it would seem a natural action, since taking this evidence in the worst way the contents of the drive in itself would be sufficient to prove she was guilty. There is no reason for the court to consider other evidence in that case unless the defence claims to have evidence that could counteract the worst possible findings on the hard drive. Did they claim that and get rebuffed by the judge? In that case, and ONLY in that case, would I agree with you.

As for pursuing the case with other evidence, in all likelihood, without the harddrive it would be impossible to convict her, as you would be unable to prove that she had an infringing copy. Which is exactly why the court has discretion to treat willfull destruction of evidence in this way.

Re:This seems bogus.

[elronxenu]

It makes perfect sense. Destroying evidence means that courts will interpret the evidence destroyed in the manner least favourable to the party doing the destroying.

Of course they need to be convinced that you did destroy evidence. Mere lack of evidence is not the same thing as destroying it. In this case they had clear evidence that the defendant had deliberately wiped a lot of files.

Re:This seems bogus.

[elronxenu]

Perhaps the courts consider evidence destruction is prima facie evidence of guilt. From www.pacga.org ... whether the evidence was destroyed in bad faith matters ...

From www.ago.state.ne.us ... "The rule applicable to evidence destruction cases is that a defendant need only show the disposed of evidence was clearly material to the issue of guilt or innocence."

Re:This seems bogus.

[Shaper_pmp]

However, in this case, the evidence destruction was taken as prima facie evidence of guilt.

No it wasn't. As other posters have explained, the plaintiff employed a computer engineer as an expert witness, who examined the machine and testified that iMesh and Bearshare (and presumably MP3s) had recently been wiped off the machine. The defendant employed their own EW who admitted that this was the case, but suggested that "maybe" it had been accidental.

True, the linked article is light on detail, but "absence of detail" != "detail of absence" (as it were). Just because the article doesn't mention supporting evidence, it doesn't mean for one second that none was considered by the court.

Re:This seems bogus.

[commodoresloat]

If you could prove she downloaded a copy on such and such a date, or made it available and it was downloaded by others, certainly a case could be established. Look at another example - Scooter Libby was indicted for perjury and obstruction of justice. Not for leaking the CIA agent's name. The fact (according to the prosecutor, at least) that he obstructed the case is not being argued for as guilt on the other charge. Instead the prosecutor is going after him on the obstruction charge.

Re:This seems bogus.

[ray-auch]

Good question. What was it they said to the people who got screwed by Enron again?

They got damages from the directors, and others, (in addition to any possible jail terms). Same with WorldCom.

Most of the settlements were out of court though (eg. http://www.ucop.edu/news/archives/2002/aug27art1.h tm, http://www.law.stanford.edu/publications/stanford_ lawyer/issues/71/klausner.html).

Re:This seems bogus.

[John Betonschaar]

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.

Murder != downloading some frickin' songs from the internet (though **AA likes to make it look like that). Also, to be convicted of murder (which by law has to be without reasonable doubt) generally requires evidence that cannot be destroyed by suspects anyway.

What I don't get of this whole situation is how it is even possible to be accused of downloading copyright material and be able to destroy the evidence after the judicial process is already set in motion. I would expect the PC with the allegedly pirated songs be seized for analysis the moment this woman was accused of pirating. If illegal songs were actually on the machine, why on earth did she have access to it before the case was either settled or closed? That's like leaving the scene of an unsolved crime unattended, including already established evidence...

Re:This seems bogus.

[Rogerborg]

"guilty beyond reasonable doubt"

And the relevance to a civil case would be?

Re:This seems bogus.

[Bloke down the pub]

What you're saying makes no sense. If the defendant is guilty beyond reasonable doubt without the evidence they destroy, the evidence destruction doesn't matter.

For the court to be able to decide that the destroyed evidence was sufficient to prove X, they'd have to know what it was. Which is pretty difficult if it's been destroyed.

Re:This seems bogus.

[twosmokes]

Maybe she didn't want the RIAA to see the 5,000 pictures of her dancing in her underwear with her cat.

Re:This seems bogus.

[tinkerghost]

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.

Actually I think it makes a lot of sense. She was charged in a civil case with copywrite infringement. She destroyed the evidence - which could have proved either innocence or guilt. Since she actively destroyed the evidence, we can assume it did not prove her innocence. Now, the judge could cite her for contempt of court, or the more criminal evidence tampering, but that would require more paperwork & time on the part of the court. Instead, the court concluded she destroyed the evidence because it showed she had in fact been doing the P2P copying. It's the same judgement the court would have entered if she hadn't shown up in court. IDR-TFA & it looks like there was more evidence than just the lack of MP3's on the disk, it didn't look like a virus wipe gone bad or any of the other things people had suggested, it looked like she deleted/shredded specific programs & directories but didn't clean the registry too.

Bluntly, she was stupid & her stupidity is going to hurt. Isn't that part of what we usually advocate here at /.?

Re:This seems bogus.

[Anonymous Brave Guy]

And what proportion of their losses was actually restored through those damages?

Re:This seems bogus.

[tinkerghost]

There was evidence that the P2P programs/networks the RIAA said she was using were in fact on her PC prior to being 'cleansed'. In addition to that there are the documentations showing time/date/file/ip that the RIAA goes to the ISP with to resolve the John Doe warrent into a specific individual.

Re:This seems bogus.

[KDR_11k]

Which is why the court assumes the evidence showed the worst case reasonably possible for the destroyer. In this case the court assumed that the data deleted indeed proved her guilty. If the destroyed evidence didn't prove that, too bad, shouldn't have destroyed it.

Re:This seems bogus.

[KDR_11k]

If they can't prove you've destroyed evidence it won't be held against you, obviously. If and only if they can prove that you willfully destroyed evidence, then it will be assumed that the evidence would not have been in your favour. Obviously noone will ever know what that evidence really showed but we have to go with the most reasonable assumption there if we don't want destroying evidence to act like a get-out-of-jail-free card.

Re:This seems bogus.

[KDR_11k]

Also, to be convicted of murder (which by law has to be without reasonable doubt) generally requires evidence that cannot be destroyed by suspects anyway.

How about surveillance tapes?

Re:This seems bogus.

[arth1]

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

Re:This seems bogus.

[rolfwind]

This is what is wrong with the court system today. In psychology class, my very experienced (and upfront) psychology professor always said for punishments to be effective (deter someone from doing the wrong thing again), they had to be:

1. Immediate
2. Be equal to the act.
3. Consistent
4. Explain what was wrong with the act and the right thing to do.

This applies to children and adults alike.

I know that "making an example" has long been a misguided tradition in the courts, but who are you making the example to? Intelligent people reading the news, sitting at home?

Are we really going to ruin this person's life at $750 per song for 200 songs? That's just ridiculous. Yes, perhaps they acted childish, but it's just crappy music that was taken. Are we going to start executing people who steal something substantial, like a bike? Afterall, I had a bike stolen from me when I was 11, and I'm sure that act hurt me a lot more than these taking these 200 songs hurt the music industry.

Re:This seems bogus.

[ray-auch]

Is not relevant to the original question, which I answered.

To be completely clear, nobody said to "the people who got screwed by Enron" that they couldn't get damages because the perps got jail time instead.

The fact that they actually did get damages is ample illustration of that.

If they didn't get as much as they could have, well then maybe they chose a poor lawyer - but nobody told them they couldn't sue.

Re:This seems bogus.

[DavidTC]

It's not destruction of evidence unless you do it after the police tell you they're investigating and not to destroy any evidence.

Re:This seems bogus.

[commodoresloat]

contempt of court and obstruction of justice are criminal charges.

Re:This seems bogus.

[surprise_audit]

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.

My feelings exactly. I mean, as from this case, it is clearly in the RIAA's interest to break into an alledged filesharer's house and wipe some files. With a possible $30M award, they could easily employ a couple of ex NSA/FBI/CIA folks to do the deed. In fact, with Windows PCs it's entirely possible they could do it without even breaking into the house...

Re:This seems bogus.

[Bloke down the pub]

Which is why the court assumes the evidence showed the worst case reasonably possible for the destroyer.

What next? If there's no witnesses to a murder, can they assume the "worst case reasonably possible" - namely, that if there had been (say, you'd waited till someone came along), they'd have seen you doing it? Now write out 100 times: "innocent till proven guilty".

Well well well...

[saurabhdutta]

A classic example of a hide under the table when theres an earthquake behavior. The defendent must had some sense and hired a decent attorney to defent her. I do feel that the judgement is a bit too harsh, but then contempt of court is seen as one of the most severe offences and the judiciary always makes an example out of it. Too bad that the RIAA got on the brighter side.

Re:Well well well...

[Jason1729]

A classic example of a hide under the table when theres an earthquake behavior

You do know that hiding under the table is a good idea because it helps prevent objects from falling on your head, right? We have annual earthquake drills around here where we're drilled to dive under the desk.

Re:If you want to understand their view

[Mr2001]

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!

crime vs. crime vs. crime

[Denial93]

[sarcasm]Yay for justice![/sarcasm]

When in this sort of situation, it is much more desirable for your evidence to be stolen rather than destroyed. Unfortunately, to fake a burglary (or even get insurance to pay...) is a crime. I'd obviously never advise anyone to commit such a crime, mind you. It is a fact, however, that such a crime will be much, much less expensive than letting the RIAA have their way with you.

Disclaimer: IANAL.

Re:crime vs. crime vs. crime

[mseeger]

It is a fact, however, that such a crime will be much, much less expensive than letting the RIAA have their way with you.

If you get caught in the act, this is not true. As we see in this case you get a summary judgement and may get additional charges on top. It will destroy all you credibility in fron of the court and may even haunt you in the future. If you do a "risk/benefit" analysis, destryoing evidence is usually a losing game in such petty cases. It may different if you killed someone, where the additional penalty is negligible (compared to punishment that you get for the original crime).

In fact destroying the evidence may now provide the RIAA with a verdict that they love. The defendant gets a severe punishment which the RIAA can trump out into the world to deter others. Most journalists will probably overlook the specifics of this case.

Regards, Martin

Re:crime vs. crime vs. crime

[raduf]

Best I can think of, so far, is to give your computer to charity and buy a new one. Of course, before giving it away you'll have to wipe the hard-drive clean.

Virus?

[rm999]

If I were her, I would install kazaa, download every different version of "BritneySpearsNaked.exe" and run them all. Wanting to see britney spears naked is not illegal, and it would make it awfully hard for them to prove she purposefully destroyed her own computer.

Re:Virus?

[legoburner]

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.

Re:Virus?

[bky1701]

*Installs as many "ok viruses" (the ones that only take up ram and email themselves to your contacts... hey I am doing them a service!) as I can find*

Re:Virus?

[distilledprodigy]

So the authors of viruses are using them to view child porn on other computers... "Think of the children!" -- "Move to linux, there are no child-porn viruses there."

Re:Virus?

[gov_coder]

You got something there. Do you think that'll run in Wine?

So my

[jlebrech]

Automatic Police Raid detection system that detonates my harddrive with a small plastic explosive is totally useless. They'll asume i had whatever they want me to have had on my pc.

Re:So my

[shawb]

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...

Unless, of course, they somehow figure out that you had an electromagnet in the doorframe.

Re:So my

[jlebrech]

or run on linux so that they cant execute lookforchildpornandmp3s.exe

Of course you get a much harsher judgement for the mp3's.

Re:So my

[masklinn]

Better: reencode all your mp3s to ogg files, they won't realize that's music!

Re:So my

[GnomeChompsky]

(and neither will you, unless you find artistic merit in artifacts...)

Re:So my

[Anonymous Coward]

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...

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 .exe securely before exiting.

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.

Re:So my

[Cousin Scuzzy]

What is Police Raid? Striped clothing with parity?

Re:So my

[toy4two]

What if I encrypted my whole hard drive and refused to give up the single sign on password citing my right to remain silent, 5th amendment etc, provided the encryption was unbreakable in my lifetime, is there anything the court could do?

Re:So my

[sharkey]

Unless, of course, they somehow figure out that you had an electromagnet in the doorframe.

Even the dimmest cop might start wondering when he gets stuck to your doorframe by his belt-buckle.

Re:So my

[pablodiazgutierrez]

Did you get this idea from Cryptonomicon?

Re:So my

[shawb]

And Pablo for the win!

I normally wouldn't have posted something so blatantly ripping it off without attributing the source, but it was... let's see. 4:30 AM? Yeesh. I didn't think I was up that late. After posting it I thought about attributing it, but figured this was /. and somebody would guess it and then bring it up.

As long as we are on the topic, and the thread is dead anyways... what character shows up in both Snowcrash and Diamond Age? (Never got actual confirmation on this, but I'm sure it's out there SOMEWHERE.)

Re:So my

[toddestan]

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 .exe securely before exiting.

Here's a thought - do the police, when they find that the computer they want to take as evidence is up and running, try to power it off nicely - or do they just yank the power plug from the wall? If they do the former, you could rig the normal shutdown process to run your small program, then power off the computer. Of course, you would have to remember to use some alternative shutdown process anytime you wanted to shutdown the computer, or risk messing up your system.

If the police just yank the power cord from the wall, I suppose it could still be done, but it gets trickier. One option would be to install a UPS (possibly inside the computer case itself), and have the computer run the program whenever it senses that it's lost power. By the time that the police have realized that you've modded your case to contain a UPS, it will be too late. Of course, with this method, you'll end up running the program anytime the power goes out.

Re:Must have been blonde!

[rm999]

Then, when they asked her on the stand if that is her harddrive, she would have to commit perjury, which is a lot worse than the penalty for downloading 200 mp3s.

Wireless... you gotta love it!

[NineNine]

You gotta love borrowing other people's (or the public's) wirelesss connections, when it comes to stuff like this. All they've got is a MAC address, and a general vicinity (within xxxx feet from this WAP). Excuse me while I fire up some torrents...

Re:Wireless... you gotta love it!

[PopeRatzo]

Why is this flamebait? In fact, NineNine is giving practical advice. Wireless is the best way to download torrents because it provides a measure of anonymity. There are 6 unsecured routers within reach of my antenna, not that I'd ever do such a thing, of course.

Re:Wireless... you gotta love it!

[Anonymous Coward]

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.

Re:Wireless... you gotta love it!

[NineNine]

Actually, it's even better if you want to share something, and somebody wants to go looking for where it originated, just because the feds are more interested in where things originated. For example, if the Feds wanted to find where the torrent in my sig originated because it's let's say... "subversive" ... all they'd have would be the MAC address of a laptop, and 3 different public wireless access points. In other words, they'd have nothing. It's also good for sharing copyrighted things. And, I gotta admit it, public or unsecured private wireless is a criminal's wet dream.

Does this make sense?

[no.17]

Something here doesnt make sense...

In order to bring the trial to court the prosecution must have been aware the defendant was downloading/sharing songs illegally. This awareness must have been specific enough to give an indication of the numbers involved..in which case this should be enough to prosecute.

Also, why was the computer left in the hands of the defendant? Surely the judge should see fit to punish the prosecution for this massive oversight and simply throw the case out of court. If the defendant had access/ownership of the hardware at such a sensitive stage then it seems as if the prosecution at that time did not have significantly powerful a case to take it away...if that is so, then the act of deletion may be an indication of guilt (still not substancial enough evidence) or may not hide anything at all.

There has to be some evidence (habeus corpus) otherwise the defendant could not be prosecuted.

It should also be remembered that it is the role of the judge to pass sentance, and record companies must bear this in mind. The judge ultimately decides, on the basis of the evidence, whether their requests are justifiable. The defendant would be wise to act humble, though one tends to think she deserves all she is getting- and is being treated so harshly due to her 'blatant contempt'.

Re:If you want to understand their view

[Haeleth]

No, that will only help you to understand the view of the artists who actually produce the creative work. It won't do anything for your understanding of the view of the people who are actually bringing these lawsuits, whose involvement is purely to do with marketing and distribution and whose motivation is entirely to do with profit, not any personal investment in specific creative acts.

Not that protecting a financial investment is any less valid than feeling protective of a creative work, of course. And you're also right that understanding the artists' point of view is extremely helpful in making the ethical decision to uphold copyright law. Which, as we must remember, is the only thing that enables the GPL to keep Free software Free. (Without copyright law, anyone could copy any software, but companies would still be able e.g. to produce closed-source binary hardware drivers, and suddenly there would be no way to stop them using one's own code to do so!)

When did no evidence become evidence against a def

[Antony-Kyre]

When did no evidence become evidence against a defendant? Isn't destroying evidence a different crime in and of itself? Wouldn't she be charged with something else? It's considered obstruction of justice, but not evidence of the crime itself has been committed, correct? What if she truly is innocent of what she is being charged/sued/whatever for?

Re:Stupid!

[mseeger]

Hi,

If you're interested, read the court's order [...]

Looks pretty clear to me. Changed the subject from "Stupid?" to "Stupid!". I witnessed already several cases were people were deleting evidence from their hard drives and believed they were safe. This one falls into the medium range of stupidity. More severe cases only put the files into the Windows waste basket and emptied it.

When there will be a sentence concerning this case, 70+% will be for the act of destroying the evidence.

[...] please be gentle with my server

Did he feel anything?

Regards, Martin

now this is a different kind of justice...

[wcitechnologies]

What happened to innocent until proven guilty? The court can assume that she is guilty because she wiped her hard drive, now? Isn't it the job of the _prosecution_ to try to obtain the evidence for a case (eg, siezing the HD with a subpoena), NOT the defendants? Why was the drive even still in her posession. I think she should be held in contempt, but not declared guilty by default.

Re:now this is a different kind of justice...

[vidarh]

The court can assume she is guilty because she IS guilty of tampering with evidence if she wiped the drive. And the punishment for tampering with evidence in that jurisdiction is that the judge is allowed to assume the worst likely scenario, which in this case is that the drive did contained the copies claimed by the plaintiff.

Re:If you want to understand their view

[Alioth]

In the case of making a cool 60 second animation (which I presume in your case was not for commercial gain) I can't understand WHY it would be hard to give away - in fact, I'd find that an incentive to give it away and indeed make it easier to give away. After all, I am not really giving the source files away, I'm merely duplicating them and allowing others to do so: I'm not deprived of the source files I worked so hard to make, and rather than just me looking at my animation I get satisfaction that others do too.

(And yes, I do work on open source stuff before you ask!)

Re:Must have been blonde!

[91degrees]

Then, when they asked her on the stand if that is her harddrive, she would have to commit perjury

She would say "yes". She has the receipt to prove it. If she really wants to, she could duplicate disk 2 back to disk 1.

Re:Stupid!

[mseeger]

Isn't it obvious? They couldn't find any pirated files, so she must have wiped it clean!

Just took a look into the court dcouments... Seems they found some more solid evidence. It seems to me that the defendant forgot to clean the Registry properly and they could at least prove the use of the file sharing software with the alleged user name and they could show that files were deleted on certain dates.

Regards, Martin

Wiping software

[DrXym]

What good is wiping software if it leaves tell-tale traces that files have been wiped. For example I know that PGP's wipe renames files as aaaaaaaaaaaaaaaaaaaaaaaa.... which would be a sure sign that someone has been wiping data. Perhaps it's better to wipe the files, uninstall the wiper, remove all registry entries and then fill the drive to 100% with crap (e.g. by copying your Windows system folder over and over) and then a full system defrag, followed by a registry / page defrag followed by yet more crap copying.

Re:Wiping software

[EvilIdler]

Follow up with a recursive touch to change the modification dates to further back in the past,
running from safemode. Of course you should have switched off changing of access time on files
when merely reading them. (Windows has that option, somewhere, I think)

Re:Wiping software

[Osty]

What good is wiping software if it leaves tell-tale traces that files have been wiped. For example I know that PGP's wipe renames files as aaaaaaaaaaaaaaaaaaaaaaaa.... which would be a sure sign that someone has been wiping data. Perhaps it's better to wipe the files, uninstall the wiper, remove all registry entries and then fill the drive to 100% with crap (e.g. by copying your Windows system folder over and over) and then a full system defrag, followed by a registry / page defrag followed by yet more crap copying.

Too much work. Better to uninstall the offending software, delete all files you downloaded, and then take an image of the drive. Imaging software won't carry over deleted nodes, so now you have a pristine image without the incriminating evidence. Then you can buy another hard drive (with cash!), deploy the clean image, and then "lose" (smash, burn, bury, drown, etc) the "bad" hard drive. There, all evidence gone, no way to find it, and no way to prove that your current hard drive isn't the hard drive you've always had (because the image should carry over file timestamps and such).

Of course, you need to be prescient to be able to do this correctly, as I would expect the RIAA to start confiscating computers or hard drives to try to prevent this in the future. Whether they can do that or not, I don't know (IANAL). My default assumption would be that they couldn't, since these are civil matters and not arrests. That doesn't mean they wouldn't find a way, or try anyway.

Re:Wiping software

[dosius]

It hasn't stopped the BSA from confiscating computers for suspected license violations.

-uso.

Re:Wiping software

[Eivind]

a new drive is overkill.

Normal delete. Backup of all non-deleted (i.e. non-incriminating) files. Complete, secure wipe of entire disc, restore of backup.

Is actually preferable, in the case of a new disc, there's always the off chance someone will notice the disc is much newer than the rest of the computer.

Complete wipe of an entire platter is easy. In a pinch booting from any linux rescue-cd and running cat /dev/zero > /dev/hda a few times will do. (though it's better if you use random data a few times rather than zero, /dev/urandom would work)

Re:Wiping software

[GotenXiao]

Linux boot CD.

for (( i=0; i bs=512; done

Re:Wiping software

[mvdw]

Close:

for i in $(seq 10) ; do dd if=/dev/zero of=/dev/hda ; sync ; dd if=/dev/urandom of=/dev/hda ; sync ; done

Would probably work.

Re:Wiping software

[The Warlock]

No, what you should do is shred(1) the drive and then reinstall the OS or whatever. If you try to keep your current install, this is what happens to you.

Re:Wiping software

[Sgt_Nikon]

DBAN is the best I've seen.

Re:Wiping software

[GotenXiao]

I wrote a lot more, but Slashdot ate my comment.

Re:If you want to understand their view

[kentrel]

That's a stupid analogy. Science is public knowledge, and science advances when the knowledge is freely used and spread.

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.

Punishment proportionate to crime?

[damburger]

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.

Re:Punishment proportionate to crime?

[grazzy]

Hello,

May I inquisit you for your current address. The mind polic^H^H^H^H^H^H^H FBI would like to know.

Please stay put on your current location awaiting anti terrorist-squad.

Re:Punishment proportionate to crime?

[shark72]

"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."

She likely knew what she was doing was illegal. She took a chance, and was caught.

She did not have a God-given right to this music; nor would her life end without it. If she was simply morally opposed to paying $0.99 a track, she had plenty of options. Magnatune, CDBaby and emusic have lots of great music that's available for a lot less than $0.99 per track. There are tons of unsigned artists who release their stuff for free under variants of Creative Commons. She could have listened to terrestrial radio, satellite radio, or any number of streaming audio stations. She could have borrowed (but not copied) CDs from friends, or even gone to a coffee house where there's often live music.

So what if Sony or BMG or some other huge record company wants you to pay a buck a track for their particular artist? Fuck 'em... don't pay the buck, but don't download their music illegally, either. Support smaller indie labels and unsigned artists.

And enough with the "destroying their life" already. The RIAA will likely hit them with the default judgement of $3.5K. That's less debt that many adults already have on their credit cards. It's less than one month's mortage payment for me. It's five car payments for many people. It's a pain in the ass to pay down, sure, but go visit a local homeless shelter to learn the true meaning of "destroying their life."

Re:Punishment proportionate to crime?

[damburger]

And another one falls into the fallacy of "moral=legal". Something being illegal is no ethical reason not to do it. Sometimes the law is just wrong, as it is in this case. And there IS a god-given right to download music - its the right of free speech, and its generally considered quite important.

Re:Punishment proportionate to crime?

[shark72]

"And another one falls into the fallacy of "moral=legal". Something being illegal is no ethical reason not to do it."

I said no such thing. I believe that the primary reason to support unsigned artists and non-RIAA labels, rather than simply pirating RIAA music, is because the former will cause a change in the balance of power, and show more and more musicians that there is a better alternative. The latter just gives the RIAA an excuse to blame the problem on piracy.

"Sometimes the law is just wrong, as it is in this case. And there IS a god-given right to download music - its the right of free speech, and its generally considered quite important."

You are partially correct. Free speech is important. Violating copyright law is not exercising free speech.

Re:Punishment proportionate to crime?

[westlake]

Sooner or later, someone is going to start bombing these companies

most of us can deal with a civil suit without going postal. you set up a payment schedule and accept the settlement as you would any other unexpected expense. life goes on. no bombings. no headlnes.

Re:Punishment proportionate to crime?

[pipingguy]

No. The proper thing to do is to write a book about the experience and then get on Oprah.

Easy...

[Chaffar]

Just say that a friend of yours who enjoys pranks ran rm -rf / on your PC yesterday... Alternatively, when asked how to log on, give them |username/password: ooooooh/whatdoesthisbuttondo|, which conveniently runs rm -rf / when it loads ^^...

What does this teach us all?

[castlec]

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.

Re:What does this teach us all?

[Master Ben]

This isn't a bad idea either. You could even have the p2p progs on it but only download non-copyrighted material.

Re:What does this teach us all?

[col_blu]

$80 would have bought a lot of legal songs too.

Re:What does this teach us all?

[Tim C]

Not that I am advocating such a course of action, but if someone were to do that, they'd have to be careful to maintain a believable usage pattern. If no file has been accessed or modified in months, that's going to immediately ring alarm bells (especially if they have logs from the ISP showing dates and times when the user was online).

Remember that obstruction, pervertinghte course of justice, etc are generally taken *very* seriously.

Re:What does this teach us all?

[ameoba]

I'm thinking that having a second computer (or a VM image on an external drive) would probably be an even better choice - when asked to give up the system, there's Nothing To See Here.

Re:What does this teach us all?

[Grishnakh]

This sounds like a problem for Linux with a specially modified RAID driver.

Use Linux, with RAID 1 (mirroring). So you have two hard drives with identical contents, identical file access/modification times, etc. However, modify the RAID driver so that it only stores the /mp3 directory on one of the drives.

So when you get a court order to turn over your hard drive to satisfy an RIAA suit, just take out the backup drive (with no MP3s on it) and hand it over. Keep the primary drive safely hidden away.

You'll want to make sure the backup drive is bootable, too, and doesn't have any indication that it was part of a RAID array.

Re:What does this teach us all?

[G00F]

Why not just have mp3/ on another drive, And mount the data manually.

That way the drive was never tampered within any way. Keep it as an external USB flash drive with an ecrypted file system. Could even let them have the whole thing with the flash drive, and jery rig the flash drive to be physicaly unstable if removed.

Not my fault if they are nto carefull with that little USB device sticking out the back that got broke and now they can't see the data. ;)

Re:What does this teach us all?

[Grishnakh]

That'll probably work ok for MP3 storage. But another directory that would need to be kept on a hard drive would be the P2P program and all its associated directories (where it stores partially-complete data, etc.). Most P2P programs I've looked at require enormous space for all the temporary data, and flash drives aren't fast enough.

Of course, this could just be kept on a separate drive and mounted, but it'd be smart to make sure there's no obvious traces on the primary drive that there's another drive which is usually mounted at the /p2p directory, or else they'll be asking for that too.

Re:What does this teach us all?

[Abcd1234]

No, it means using TrueCrypt with a hidden volume. If they ask for the password to your encrypted volume, give it to them, but don't tell them about the hidden volume. Voila, problem solved!

Re:When did no evidence become evidence against a

[vidarh]

The problem with that is how do you set sentencing guidelines? If someone is hiding something cheap they stole from a store that's quite different from someone shredding documents proving they killed several people by being negligent with repairs, for instance. The easiest way to deal with it is to "assume the worst".

I'm not surprised

[Advocadus Diaboli]

since this is happening in a country that goes to war because of not existing weapons of mass destruction.

Sorry folks, what's coming up next? People get arrested because of dealing with drugs even if nobody finds drugs with them. But of course the have thrown it away. Everyone can get sacked for theft, even if he has no stolen things with him, but he could have had and then dumped them somewhere else.

In my country there is a principle that everyone is considered to be innocent until you can prove the opposite. Looks like this principle needs to be re-established in the US as well.

Re:I'm not surprised

[Ihlosi]

In my country there is a principle that everyone is considered to be innocent until you can prove the opposite.

Remember, this is a civil lawsuit and not a criminal trial. There is no "innocent" or "guilty" in a civil suit, just "liable" or "not liable".

Re:I'm not surprised

[NoRefill1005]

If you are going to bash my country at least get the facts right. http://www.breitbart.com/news/2006/06/22/060622055 545.07o4imol.html

Re:I'm not surprised

[dbIII]

We know all about this really old stuff that doesn't work anymore - the British government approved export of mustard gas components to Iraq as late as 1989. The UN weapons inspectors knew about this too - but you don't call it a weapon if it can't be used as one unless you want to put "spin" on a situation. There were many reasons for hostilities with Iraq but chemical weapons and association with Saddam's mortal enemy Bin Laden are ludicrous fantasies. We chose to keep Saddam in 1991 for whatever reasons and even allowed his forces to return to the Kuwait border and recover equipment to put down the rebellions. Since that date Iraq was bombed back into the third world - with no income but the oil for food program sabotaged by bombing the oil pipelines and oil installations. How do you maintain a chemical weapons program under those conditions and why wouldn't you use the things when you are being invaded if you had them? Live with the fact that it was lies and propaganda - a stupid no evidence is evidence tactic which only works if you question the loyalties of those that try to refute it.

Doorframe Magnets

[gknoy]

Unless, of course, they somehow figure out that you had an electromagnet in the doorframe.

I imagine that any reasonably trained police force, when executing such a seizure, would have both the training to expect such a thing, and the tools to detect it. Enough people have to have done exactly this that it'd be stupid not to presume so.

Also, what do you do when they send it out the window? :)

Re:Doorframe Magnets

[e4g4]

Also, what do you do when they send it out the window? :)

What about installing the electromagnet inside the machine (not turned on, of course), and hacking some sort of proximity based alarm system. So when the police/whoever move the machine outside the range of the (well hidden) transmitter, the electromagnet activates and wipes the drive. This would, of course, require a fairlylarge battery to be installed inside the case. One could, plausibly, say that you installed this security system in order to protect yourself from identity theft, in the event that your computer was stolen (and that in the stress of the police raid, the fact that the security system was active completely slipped your mind).

IANAL, so I don't know what the consequences of 'inadvertent' destruction of evidence are...

Destroying the data stopped sharing!

[noidentity]

[...] the Western District of Texas has shown little mercy on a defendant accused by record companies of illegal file-sharing. Knowing that a court order was in place requiring her to turn over her hard drive to be copied, the defendant allegedly used "wiping" software [...]

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>

Given that the record companies' expert opined that the defendant had downloaded over 200 sound recordings during 2005,

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.

Re:Destroying the data stopped sharing!

[cpt kangarooski]

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.

Re:Destroying the data stopped sharing!

[bitt3n]

also, unless she changed the default settings on her P2P so that her download folder and her upload folder are distinct, anything she downloads will get uploaded very quickly.

Re:Destroying the data stopped sharing!

[Pocharngo]

"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."

Well, I have on several occasions received CD:s with MP3 files from friends. If these MP3:s were originally downloaded, do you mean that this wouldn't be infringing under U.S. law?

Re:Destroying the data stopped sharing!

[Slovenian6474]

Correct me if i'm wrong, but i think what he's saying is that YOU wouldn't be infringing because YOU did not make the CD. You just possess it. The friend would be infringing though.

Re:Destroying the data stopped sharing!

[asuffield]

Since when is the recipient of an unauthorized copy guilty of copyright infringement? I though it was just the provider of the unauthorized copy.

She wasn't 'convicted' in the normal sense, she's just being punished for attempting to pervert the course of justice. That effectively precludes consideration of whether or not she committed the relevent unlawful action.

There is, however, the possibility of appeal on the grounds that the action wasn't unlawful in the first place. Hard to say how likely that would be to win.

Still, this was a pretty stupid move for the defendant. There are all kinds of good defenses against the bullshit cases that the RIAA are using, and she just blew her chances of being able to use most of them. She must have had some really incriminating pornography on that drive.

Re:Destroying the data stopped sharing!

[laughingcoyote]

That seems -awfully- slippery. What about if (in our hypothetical scenario of being handed a CD) I actually play it? In that case, there is a copy being made to RAM (which is relatively temporary) or if the system's swapping, maybe to the swap file. Am I "infringing" now?

Even car stereos have some type of temporary buffer in which data can be "held ahead" to prevent skipping when you hit a pothole. By that definition, wouldn't it be illegal to play a CD using any device with any buffering capacity, ever, even if the CD were legally purchased?

And if such buffering is legal, why would it make a difference whether you got the file from iTunes or Limewire as to whether a resident copy in RAM is alright? Would you be breaking the law as soon as you play the MP3 CD from your friend in your car? On your PC? What if that CD were legally purchased instead? If it weren't illegal for you to receive it in the first place what's the difference? What's the difference then between having the information on a spinning disc on your desk or a spinning platter inside your computer?

The whole thing stank of "trying too hard" at the time and it still does. It really seemed the court was biased against Napster and wanted 'em shut down, and ignored the fact that a lot of what happens is technically -not- illegal.

Re:Destroying the data stopped sharing!

[cpt kangarooski]

Am I "infringing" now?

Yes, given the current law.

wouldn't it be illegal to play a CD using any device with any buffering capacity, ever, even if the CD were legally purchased?

No. The fair use analysis is different under those circumstances, and there's an implied license argument that's pretty strong as well. But neither of these are likely to work with unlawfully made copies.

And if such buffering is legal, why would it make a difference whether you got the file from iTunes or Limewire as to whether a resident copy in RAM is alright?

Well, fair use is totally dependant on the circumstances involved. If you're using a copy that originates from Limewire, then that's very bad for your fair use argument since one factor is the effect of the use on the actual value or potential market for the work. Whereas, if it's from iTMS (and you're the one who paid for it), then even if the implied license argument wouldn't work for some odd reason, you're still not trying to avoid paying for a legitimately made copy.

At this point you might be interested in reading the very good essay What Colour Are Your Bits?.

It really seemed the court was biased against Napster and wanted 'em shut down

Well, duh. In fairness, the 9th Cir. was not biased against Napster, but they did perceive Napster to have very unclean hands. That being the case, there's nothing unfair about the court not being lenient to Napster where it has an option to be. And that -- and the fact that Napster really was flagrantly breaking the law for the most part -- is what happened.

In any case, that Napster didn't break every law it came across doesn't mean much. A mugger who doesn't jaywalk isn't going to get off lightly because he waits for the walk signal at the intersection.

Re:Destroying the data stopped sharing!

[laughingcoyote]

Well, as always, the fact that I disagree with you periodically doesn't stop you from coming up with some very clear and insightful arguments.

That being said, I don't see Napster as a "mugger who jaywalked". Maybe, at best, a person who sees so many muggings a day going on outside their bedroom window that they don't bother calling the police because they couldn't possibly report even a tiny fraction of them. Napster neither hosted nor distributed a single copyrighted file during its existence, and no amount of twisted legal logic will change that technical fact-the content was (and still is on any P2P network) entirely under the control of the users.

Stating that Napster "could have" exerted control over such content is irrelevant. Any number of construction companies build and install light poles. While they "could" provide security guards and lawyers to check and ensure that any message posted on the light pole is legally correct and approved, to actually do so is technically cumbersome and difficult. Therefore, we do not require it of them.

Please also note that I'm in strong favor of any not-for-profit copying being fair use, period, whether or not it's -actually- that way under current law. And I don't buy that a friend (or stranger) sharing something back is "profit", I mean by that term a cash reward.

I've read What Colour Are Your Bits. I just reread it as well and loved it just as much this time as the first time. But remember, you are a lawyer, and I'm a programmer-and to me it seems to blow your position away. Xor an mp3 with a webpage and it has no definable form as copyrighted. Define the xor of an mp3 with an arbitrary set of random data as copyrighted and the copyright holder of that mp3 has just copyrighted everything (since with the correct xor that mp3 will result in everything from every webpage in existence to an mp3 of every other song!). By the same token, if Person A's file from Limewire and Person B's file from iTMS are bitwise identical, it doesn't wash with me that the source somehow makes them "different" or makes one OK to play while the other is forbidden. Same with Person A's CD he bought from the store and Person B's copy made for him by person A. Again, the WAV's are (barring copying errors or physical damage, which can also happen to the store CD's) bitwise identical.

It still rather tends to be my belief that digital technology, which brought the cost and time required for making large numbers of copies down to near zero, calls for a radical overhaul to copyright law-not simply a hacking of a status quo intended for paper and plastic onto bits and bytes. Napster, whatever else you might want to say about it, brought this point into immediate and sharp focus. Gnutella made it even clearer-outlaw Napster because the bits at some point flow through their server? No problem, we'll decentralize the network altogether! And the whole issue should bring the issue into clear focus for lawmakers. It never used to be anywhere near feasible for a single person to share a copy of something for free withwhoever in the world may want one. Now it's not only possible but easy and nearly free, even if it's still illegal. And easy and desirable will, in the end, always win over illegal. That means time for a change in the law to reflect reality, not time for a change in reality to reflect the law.

As to Napster, I'm still not entirely sure how they did break the law (or in your analogy, commit any muggings.) They may have been selling brass knuckles in the bad part of town, to be sure, but there's no law against that. (Or in my analogous town there isn't one, I'm sure there is such a law somewhere or another.) The court, rather then responding as it should ("Sorry, might be shady but it's not illegal, if you want that you'll have to go buy a law") seemed to stretch around existing law to say that Napster was somehow responsible for its users. And if that bending of the law was somewhat understandable with a central network, the type involved with the Gro

Re:Destroying the data stopped sharing!

[cpt kangarooski]

Napster neither hosted nor distributed a single copyrighted file during its existenceStating that Napster "could have" exerted control over such content is irrelevant.

They did have the ability to do so. In fact, they had the ready ability to; they could have banned users, and blocked files, but they chose not do so. It wouldn't have been terribly effective IMO, but it wasn't all that difficult. In the end, it cost them.

Xor an mp3 with a webpage and it has no definable form as copyrighted. By the same token, if Person A's file from Limewire and Person B's file from iTMS are bitwise identical, it doesn't wash with me that the source somehow makes them "different" or makes one OK to play while the other is forbidden.

Well, that's nevertheless how it is. It's sort of like how morphine is used in a few medicinal applications. A gram of morphine might be chemically uniform, regardless of who you get it from, but it's legal to get it with a prescription from your doctor (under the appropriate circumstances) and not legal to get it from a drug dealer. I think you missed the point of the essay. The law is interested in many aspects of the transaction, not merely the specific bits at issue.

That means time for a change in the law to reflect reality, not time for a change in reality to reflect the law.

I agree. I'm always pushing for sensible copyright reform, you know.

As to Napster, I'm still not entirely sure how they did break the law

I'll show you:

Plaintiffs claim Napster users are engaged in the wholesale reproduction and distribution of copyrighted works, all constituting direct infringement. Secondary liability for copyright infringement does not exist in the absence of direct infringement by a third party. It follows that Napster does not facilitate infringement of the copyright laws in the absence of direct infringement by its users. ...

We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders' exclusive rights: the rights of reproduction, 106(1); and distribution, 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights. ...

Accordingly, we next address whether Napster is secondarily liable for the direct infringement under two doctrines of copyright law: contributory copyright infringement and vicarious copyright infringement. ...

Traditionally, "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a 'contributory' infringer." Put differently, liability exists if the defendant engages in "personal conduct that encourages or assists the infringement." ...

Contributory liability requires that the secondary infringer "know or have reason to know" of direct infringement. The district court found that Napster had both actual and constructive knowledge that its users exchanged copyrighted music. The district court also concluded that the law does not require knowledge of "specific acts of infringement" and rejected Napster's contention that because the company cannot distinguish infringing from noninfringing files, it does not "know" of the direct infringement. It is apparent from the record that Napster has knowledge, both actual and constructive, The district court found actual knowledge because: (1) a document authored by Napster co-founder Sean Parker mentioned "the need to remain ignorant of users' real names and IP addresses 'since they are exchanging pirated music'"; and (2) the Recording Industry Association of America ("RIAA") informed Napster of more than 12,000 infringing files, some of which are still available. The district court found constructive knowledge because: (a) Napster executives have recording

Courts and Computers...

[segedunum]

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.

Re:Courts and Computers...

[man_ls]

Yes, it is. She was ordered to allow her computer to be searched. At this point, it became illegal for her to modify the contents of the hard drive because it would be violating the court order. She then proceded to erase her hard drive, an illegal action, destroying the evidence against her. This is clearly illegal, and she was treated accordingly.

Just the same as if, when faced with a discovery order, the CEO of a company had a shredding party then turned over a ream of blank paper and said "that's all I could find."

Re:Courts and Computers...

[Dhalka226]

Ssh, this is slashdot. Being reasonable is illegal. Quick, wipe your hard drive before anybody can prove you did it.

Re:Courts and Computers...

[loraksus]

A female lawyer not wearing a skirt to court is contempt in some courtrooms in the South. Judges tend to have a wee bit warped view of the world...

DBAN

[CmSpuD]

Darik's Boot and Nuke - 35 passes of a guttman wipe; they shouldn't have been able to pick data off of that, but would it still go as destroying evidence? Drop a fresh windows install on it and some programs, a bit of spyware and some family photos and it might look convincing...

Re:DBAN

[pointbeing]

The aftereffects of a lot of disk wiping programs are ridiculously easy to spot using forensics tools. If you write a buncha zeroes to a drive and then the binary inverse (ones) and repeat that pattern 35 times you won't see the same data pattern on the drive that you'd see if a file was simply deleted.

When you delete a file from a Windows machine all it does is change the first character of the filename to a Greek sigma character - which the OS understands means that the sectors associated with that file are available to be overwritten. You can still pull data off the drive - which isn't the case if a disk wipe utility's been used.

Even defragmenting the drive doesn't produce the same pattern as a disk wipe utility. Stupid thing to do if you ask me ;-)

Re:DBAN

[Kythe]

One pass would do it, for all practical purposes. There isn't a software recovery program in existence that can recover files wiped even with one pass of all zeros. You need some pretty sophisticated means (hardware-based) to recover anything beyond that, plus a lot of time, effort, money and expertise to use them.

The thing is, a normal hard drive has all sorts of old, deleted files lying around, including temporary files, etc. They have older time stamps on the files, both deleted and non-, to boot.

So a computer forensic team looks at your hard drive with a fresh installation and can tell pretty quickly that it's brand new, and that the drive is either basically unused before a certain date or has been wiped and re-installed.

What's needed is either 1) two separate hard drives, one used for normal business and one used exclusively for filesharing (switch back and forth frequently), which is a pain, or 2) a program that can re-create the appearance of a normally-used drive by creating "deleted" files, deleted temp files, etc., and modify the file dates back to a certain fake install date.

Re:DBAN

[mwilliamson]

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).

Re:DBAN

[jonwil]

Better idea, have 2 hard drives. Drive one contains all the legal stuff (including the OS etc), drive 2 contains the illegal stuff.
If they go after you, remove drive 2 (and all traces there was ever a second drive plugged in) and physically destroy. No way for them to even know drive 2 existed.
Better yet, have a wireless access point with MAC filtering too. That way, you can legitimatly claim that any logs of "username x with IP address y and MAC address z was illegally sharing songs a,b and c" was someone else on your wireless network with a spoofed MAC address used to avoid the MAC address filtering.

That way, all they have is logs that a machine with a given username (and matching account details such as address taken from the ISP), a given IP address (which happens to be the public IP address of your wireless router at the time the logs were taken) and (depending on what sort of info they can get from the ISP) MAC address was sharing illegal content. Then, all you need to do is to convince the court that someone connected to your wireless network, faked your MAC address to get past the MAC filtering and proceeded to share out illegal content. Case closed (at least I assume so, IANAL however).

Re:DBAN

[Sloppy]

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.

Anyone who can write a defragger, can also write a fragger.

In 1988, as a joke I wrote a "simulation" (it didn't actually write any changes to the drive) of a crude "pessimizer" (alternating clusters of each file would be stored half-a-drive-away from each other) for MSDOS. Now I'm finding out there's a market for one that makes a convincingly natural-looking nonoptimal layout? Sheesh, I missed the boat AGAIN! ;-)

So, if someone...

[CrazyDuke]

...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?

Re:So, if someone...

[Anonymous Coward]

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?

Re:So, if someone...

[CrazyDuke]

Perhaps it's just the prospect of the vast majority of my private life being put out into public view because someone claims I did something wrong.

Civil suit, not criminal trial

[Rocketship Underpant]

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.

The only honorable thing to do now is...

[demo9orgon]

s u 1 c 1 d e

(the police-assisted option has never been easier--they're very appreciative of any citizens who volunteer--good training )

Nobody has to suffer a job interview as a felon posthumously unless you're living in Tim Burton's afterlife.

Victor Hugo and Alexandre Dumas have already written about this kind of institutional violence.

These things happen all the time, have always happened in some form since bread existed.

We're all criminals because the state has no power over us unless we are.

Indulgences are not just for the righteous as long as you can pay.

Every form of media now contains it's own Requirimento.

The more things change...

Re:When did no evidence become evidence against a

[Antony-Kyre]

Assuming the worst is a horrible idea. It's innocent until proven guilty. If someone cannot be proven guilty, so be it. It's better to let someone innocent go free than to convict them of something they didn't do. Plus, the right steps to take is to charge someone with obstruction of justice, which is a crime in and of itself I believe.

Don't destroy the evidence, let them do it for you

[trip11]

If you are worried that someone will take your hard drive and try to read the valuable contents on it, I offer a simple, low tech solution. Switch the leads on the power connector! Its as simple as undoing a few screws and switching the 12V and ground leads. Two snips with the dikes, two drops of solder, and you're done. Screw everything back in place and appropriatly adjust the power connector coming out of your power supply. Now I would recomend doing this long before you recieve any sort of court order so they can't claim you were tampering with evidence. When they go to plug your hard drive into the examining system *zap*. "sorry, um you never asked if my hardware was ATX compliant judge" Note: I am not a lawyer and you should not think this would get you off the hook by any means. In fact frying the police department's computer may piss the judge off. Second, this will likely void your warnenty, fry your motherboard, ruin your hard drive, and end up in your death. But hey, this is slashdot, crackpot ideas on how to modify your hardware to screw the justice system seem right up our alley.

This is just wrong in a constitutional state

[da.phreak]

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 ?

Re:This is just wrong in a constitutional state

[erroneus]

CIVIL CASE
Preponderance of evidence

Just look some of that up.

Re:This is just wrong in a constitutional state

[da.phreak]

Yeah you're right I somewhat missed that.

On the other hand I'm not from the US, and as far as I know this basic principle also applies to civil cases in my country.

The basic problem here is that you can get the evidence in a civil case (like keys to an encrypted partition) from that person, and then use it against him in a criminal case.

Re:This is just wrong in a constitutional state

[digitalhermit]

That may work elsewhere, not in the good ole USA. Over here, she should do what the politicians do. Do not deny the evidence, just claim that it's not illegal. Politicians are not caught because they commit a crime, but rather that they try to hide it. *NOTHING* proclaims guilt as loudly as an attempted coverup.

Re:This is just wrong in a constitutional state

[heroofhyr]

I hate to admit it, but it's far from "wrong" in the sense you mean. Imagine if a lawsuit were brought against the CEO of a large company for fraudulent accounting practices, and the CEO went into the office before the trial and dumped all of the records into the garbage incinerator. One would lean towards doubting that he just happened to be doing some spring cleaning briefly before his court appearance. The fact that this woman wiped her hard drive is neither "wrong" nor even surprising. That the RIAA had the naivete (or perhaps arrogance) to ask her to bring her own coffin nails to the court is pretty stupid on their part. Frankly I don't blame her and would probably do something similar if I were in the same situation (luckily the copyright laws here are not yet as rabid as in the US). But I wouldn't expect it to result in a dismissal of the case against me. This sort of action should be one of defiance and protest rather than desperation to escape punishment and little understanding of both tort law and computers. For one thing the hard drive wasn't even necessary to prove the downloading of the files, otherwise the case never would have gone to court as it was never examined by the RIAA prior to bringing the suit. Most likely it was a bait they knew the woman would take (as most people would in that situation, given the fact that only an idiot is going to bring to court with them something that will prove their guilt) and thus save them the long, arduous process of going through a trial.

I qualified my first sentence with "in the sense you mean." I agree that this whole procedure is wrong, but only because I don't feel people should be intimidated and frightened just because they enjoy music. If you download something rather than paying for it, either because you don't want to or for a good reason (like, for example, the fact that here in continental Europe many of the DVDs I would like to have aren't even imported or for sale and on my income simply can't afford to pay excessive amounts to have them shipped from North America) you're a parasite and a leech. If you expect a check to come in the mail every time someone wants to hear a song you recorded 10, 20, 30 years ago, or if you're a manager of someone who does this and you want your percentage of that check for the moderate amount of work you did (or the work done by someone else who then sold you the "rights" to that artist at a later date): you're an upstanding citizen and a role model for the community who is being unfairly persecuted by deviant, criminal masterminds masquerading as witless 12-year-olds with access to the Internet.

Re:This is just wrong in a constitutional state

[Zero__Kelvin]

"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."

Well ... either the judge is a moron or he knows more about the law than you do 8-) You are confusing your own interpretation of the fifth amendment with the actual intent. You have a right to avoid testifying against yourself. You do not have a right to destroy evidence that incriminates you.

That being said, I am no fan of the courts by any means. And remember ... you are innocent until proven guilty, but if you are found not guilty, that does not mean you are innocent. Every lawyer I have ever said this to nodded their head in complete agreement. They seriously couldn't see that this is patently assinine. Amazing.

Re:This is just wrong in a constitutional state

[stubear]

How is this insightful? Are you honestly suggesting that I can commit a crime on my personal property and avoid prosecution because I can claim that any investigation conducted on said property constitutes a violation of my right to not provide witness against myself? This has to be one of the dumbest arguments, and twisted readings of the Constitution, I've read on Slashdot.

Re:This is just wrong in a constitutional state

[Dhalka226]

I think most posters here are missing one fact: The evidence she destroyed was evidence against herself.

I think you're missing the point: it doesn't matter.

First and foremost, she just didn't decide one day that what she did was wrong and decide to "un-do" it, or to remove evidence of it having been done. If that were the case, she probably would have gotten away with it.

Rather, what she did is knowingly defy a court order. The court ordered her to turn the drive over as evidence, and she destroyed that evidence. Not only is it wrong, it is illegal. I'm not sure if they can build a criminal case from it since it arose in a civil suit, but they almost certainly can. And you know what? I wouldn't feel bad for her in the least if they tossed her in the clink for it.

But all of that is also somewhat beside the point because your entire premise is wrong. You have a Constitutional right not to "be compelled in any criminal case to be a witness against [yourself]." That does NOT mean that you do not have to turn over evidence against yourself; evidence has nothing to do with you bearing witness. (Not) bearing witness against yourself is when you get up in the little examination box in court and say, "I plead the fifth."

Likewise, I'm not even 100% sure you have THAT right because this is a civil action; the US Constitution is a document constraining the power of government.

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.

He didn't "miss it." He was applying the law, not your particular interpretation of the law. Saying something doesn't make it so.

Is the next step torturing someone until he provides evidence against himself ?

What now?

Surely it has happened--in the US, even (see the Chicago incidents for proof)--but I fail to see how you made the leap. A court ordering you to turn over subpoenaed evidence without destroying it is not even in the same ballpark as torturing somebody until they tell you whatever it is you want to hear, and you just make yourself look bad by insinuating otherwise.

"Slippery slope" is a logical error of argumentation for a reason, you know. Throwing that sort of thing out there without any connection between it and your evidence means nothing. It's just a way to get a cheap emotional reaction from people to distact them from your actual argument.

Re:This is just wrong in a constitutional state

[DerekLyons]

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.

No, your basic right is to 'not incriminate oneself (via testimony)'. The courts have long held that physical evidence was not (for this purpose) testimony. The Court, in requesting her unaltered hard drive, was doing no different than when the Court collects clothing from a murder suspect to check for blood or asks the bank to provide the records of an individual suspected of fraud.
 
 

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.

The problem lies not with the courts - but with your understanding of the law.

Re:This is just wrong in a constitutional state

[Dhalka226]

Every lawyer I have ever said this to nodded their head in complete agreement. They seriously couldn't see that this is patently assinine. Amazing.

Why is it asinine? It exists to ensure that the government behaves itself in a certain way during the conduct of an investigation and trial. If they tortured somebody until they confessed, wouldn't you expect them to be found not guilty if it ever made it to court? It doesn't mean that they didn't COMMIT the crime. It means that the police could not PROVE that they committed the crime with evidence that was obtained in a legal manner. Along with the protection against double jeopardy, it helps to prevent law enforcement from dragging you into court every ten minutes until they get you convicted. They have to make sure they have a good case before they bring it, because they only get to lose once.

It's not an accident at all that juries decide between "guilty" and "not guilty" and not between "guilty" and "innocent." It is, in fact, the entire basis of the (criminal) US legal system: guilt beyond a reasonable doubt. Anf if guilt beyond a reasonable doubt cannot be proven, they find you... yes. Not guilty.

Makes perfect sense to me. I wouldn't have it any other way.

Re:This is just wrong in a constitutional state

[Zero__Kelvin]

Go back and read what I wrote again. Think about for a while. You completely missed the point. If I am innocent until proven guilty, and I am not proven guilty, that still doesn't mean I am innocent? Hello. McFly ...

Re:This is just wrong in a constitutional state

[da.phreak]

You're probably right about many points and I admit that I mixed things that should not be mixed. Let me elaborate. First, as I posted earlier, I'm not from the US so I have a different undestanding about some things. To some part I applied my understanding of law to the US law. This is confusing and a bad idea.

I'll try to explain with an example. Let's imagine you're living in the US, and someone brings up a civil case against you, maybe similar to this one. You were smart enough to encrypt your data. In the US, you have to hand your keys over to the court civil cases, and only there. If this belongs to witnessing against yourself or providing evidence against yourself maybe is not as easy to decide, but from what you've written this seems to be belong into the latter category (in the US). If the same thing happenes to you in my country, you don't have to give up your encryption keys.

I think this is wrong for the reasons I stated, but still legal in the US. It has further practical implications. Let's imagine you're in a criminal case. Someone wants evidence against you, but it is on an encrypted disk. Obviously he just has to find someone that brings up a civil case against you where you have to give up your keys, and can then use that same evidence against you in the criminal case. In the end, you helped the court to get evidence against yourself.

The UK is heading to the same direction and has brought up a new law: They can put you into jail for 2 years (if i remember correctly) if you don't hand over the keys. Not surprisingly this law came up in the name of fighting terrorism.

Further we should distinguish between applied law (jurisdiction) and the discussion if this law is good,bad,right,wrong or practically useful and so on which belongs into the realm of legislation. I did mix this up a bit. The judge applied law as it is, still I think this law is wrong for the reasons I stated.

You've caught me with my last statement - it was an emotional trick to get attention. Or was it ? On one hand yes, but on the other hand this maybe is not that far if you let fundamental christians run the government. Christians have proven throughout history to be violent, I have no doubt that they will reinvent the inqusition once they gain enough power (just my personal opinion). It surely isn't the next step, that was the trick about it, but possibly the end of many many small steps if you continue that road.

Re:This is just wrong in a constitutional state

[da.phreak]

There's one more reason not to use "information" aquired by torture beyond the fact that it's illegal, and it's quite obvious I think: Under torture you'll say anything. You'll probably give false information because you are guilty but don't want to admit it. You maybe confess although you are innocent, just to get out of the situation. I don't think this is a valid method to get information, you'll get something but not information. But this maybe is the less important reason, the other is the one I already explained.

Re:This is just wrong in a constitutional state

[Kjella]

Likewise, I'm not even 100% sure you have THAT right because this is a civil action; the US Constitution is a document constraining the power of government.

Oh, you have a right to remain silent in a civil case. It just extremely rarely a good idea, because the other side probably has something, some shred of circumstantial evidence that you need to rebutt or they wouldn't have gone to court. That doesn't necessarily imply that you need to give them what they want, but you have to at least offer alternative explainations which are equally plausible.

Re:If you want to understand their view

[Mr2001]

That's a stupid analogy. Science is public knowledge, and science advances when the knowledge is freely used and spread.

Just like culture and human happiness advances when artistic works are freely enjoyed, spread, and built upon to create new works.

Art is an expression of an artists own life, views, beliefs, hopes, dreams etc.

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.

They have every right to protect their work, since it's uniquely theirs.

Uniquely theirs? Ha. Every artist draws something from the work of others; no one grows up in a vacuum.

It's not automatically everybody's right to own it just because they're too cheap to pay for it.

Correct - it's nobody's right to own it. You can't own a number.

Re:If you want to understand their view

[Pofy]

>They have every right to protect their work, since it's uniquely theirs.

According to what? IF they really want it protected, the solution is simple, keep it to themselves. If they want the public to have it, they have to accept they lose much of the control. You can't have it both ways.

>They can choose who they want to view it (e.g. give it away for free, or give it only
>to people who pay).

That is not WHO, that is HOW. The thing is, after that, they lose some control, don't like it, don't give or sell it. Simple.

>It's not automatically everybody's right to own it just because they're too cheap to
>pay for it.

No, but there are many ways to "own" things or get to own things that doesn't involve paying the original creator and they are not by default wrong or bad. This has applied for ages for most products so I don't see why it shouldn't apply to art as well.

Re:Must have been blonde!

[Pofy]

Since when is it a perjury when you are questioned about yourself? Are are you commiting a crime when you claim that you are not guilty and the court later still finds you ws guilty, after all, that must mean you lied. In most countries purjury would be when you witness about someone elses case. Perhaps the US syste is completel different though.

Dumb, dumb, dumb

[99luftballon]

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.

Re:Dumb, dumb, dumb

[man_ls]

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.

Re:Dumb, dumb, dumb

[Winterblink]

It would be an interesting defense, sure. Right up until the point where the judge, having abandoned all logic and reason, defaults your case. Suddenly you find yourself handcuffed and in a locked room with no windows, with a big burly RIAA standing in front of you.

Re:Dumb, dumb, dumb

[GauteL]

"Surely the best defence would be to find out what songs you are being prosecuted for and then buying the album/game/DVD"

No. If you bought the album/game/DVD before you got sued, it may have been defendable, but if you bought it afterwards, any judge can easily see through your motivations. If you want to bring in the album as evidence, the RIAA lawyer will probably ask you to prove that you bought it before you got sued.

Your suggestion is just as dumb as buying all the albums for the copied music after you got sued and claim you owned it all along. Both are likely to be found out, and result in you having a worse case than before.

Re:Dumb, dumb, dumb

[Roxton]

It's a moot point anyways, since the major infringement with P2P isn't possession of copyrighted data, but active distribution.

Re:Dumb, dumb, dumb

[SatanicPuppy]

No need to go that far. Having the media in your possession should clear you of any charges stemming from possessing a copy on your harddrive, through the doctrine of fair use.

Now, if they're after you for sharing copies with the world, you're s.o.l.

Re:Dumb, dumb, dumb

[MonsoonDawn]

I think this sets a very good precedent

This is not a precedent. This is a well established point of law. The defendent in this case is not the first person to destroy destroy evidence and get smacked down for it.

use protection

[hector_uk]

this is why i have clean drives and dirty drives, if ever i got in trouble or whatever i just take the dirty drive to a friends house and put clean drives in all my computers and blame it on the open wifi network (incidentally i use MAC address filtering on my open network, thus the fact that my MAC address is linked to said articles is inconsequential seeing as a third party would change his MAC address to be identical to mine to access my network). hell I even have a spare broken 1.8" HD i can bang into my ipod should the need arise. unless your completely retarded it's easy as hell to think up a way so you can never be beaten in court. and jesus fucking christ why does /. always compress whatever i write into one paragraph

Re:use protection

[Aladrin]

Because you didn't learn to post yet. Either add HTML markup or choose something other than HTML for the format.

Re:use protection

[clickclickdrone]

>why does /. always compress whatever i write into one paragraph
Because you're posting in html not plain text and need to put breaks after each line. Just choose 'plain old text' next to the preview button.

So they didn't take her computer..

[Safiire Arrowny]

Perhaps a better thing to do than wipe the drive would be to take it out and incinerate it. Then obtain one belonging to someone who doesn't have mp3s, and pretend it was yours all along. That idea might take some tweaking, but surely it's better than wiping your drive which is obviously a cover up.

Re:Must have been blonde!

[91degrees]

Are are you commiting a crime when you claim that you are not guilty and the court later still finds you ws guilty,

No. In this case, you are merely making a statement about how you plead Not about whether you are guilty.

I gather, that if you are then asked by the court "Did you commit the crime", and you say "No", then you are committing perjury (assuming you're later found guilty). You can always refuse to answer the question under US law.

Get used to it.

[Nicaboker]

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.

Re:Get used to it.

[shark72]

"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."

Precisely. If we vote by supporting non-label artists and artists from labels that are taking saner approaches (Magnatune et al) we will eventually shift the financial power away from the big labels. If we vote by simply pirating the music produced by the big labels, it's all too easy for the labels to brand us as "pirates."

Don't like the practices of the RIAA labels? Don't buy their stuff... but don't pirate it, either.

Re:Stupid!

[Sillygates]

The sad thing is that a handle is just circumstantial evidence (the defendant could have seen somone else use that handle, and adopted it as her own), and the file shareing programs themselves are totally legal.

Story was from Techdirt.com

[giafly]

TFA just links the site, so here's the original story.

"There are plenty of reasonable ways to defend yourself against an RIAA lawsuit over file sharing. For example, you can show how your IP address is shared by many others and it's impossible for the RIAA to know who was actually responsible. However, one thing you should absolutely not do is erase your hard drive -- especially when there's a court order demanding you produce the hard drive as evidence. Yes, that's what one guy did, and the judge (not surprisingly) has sided with the RIAA and ruled in their favor."

Extremely bad

[bky1701]

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.

Umm , I think a completely blank hard drive...

[Viol8]

...might have just looked a teensy bit suspicious too given the computer
would now be unusable until the OS was reinstalled. A clean install would
have looked suspect aswell IMO.

Re:Umm , I think a completely blank hard drive...

[Itchy Rich]

A clean install would have looked suspect aswell IMO.

Exactly. Is it really that hard to find evidence that shows the date of an installation?

Re:Umm , I think a completely blank hard drive...

[frogstar_robot]

Exactly. Is it really that hard to find evidence that shows the date of an installation?

Probably. This is why a clean install would be the wrong thing to do. Reimaging a drive would be far more ambigous. What you would have then is a drive where most of the files are before x date. That would be suspicious but not as suspicious as running an OEM recovery CD. I can even think of a way to handle that. You need a script that backdates the clock to the image creation date, touches some appropriate files, forward dates the clock a bit then touches more files. The script will repeat the bump-date-touch-move-forward routine until it reaches the present. The script itself should be run from a CD or other media.

Before reimaging, it would be advisable to overwrite the drive with random number. After re-imaging and date-scripting, the install should be exercised with as many apps run and closed as possible as well and creating a deleting files to create plausible on-disk data structures.

Re:Umm , I think a completely blank hard drive...

[gid13]

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.

Re:Umm , I think a completely blank hard drive...

[voice_of_all_reason]

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.

Re:Umm , I think a completely blank hard drive...

[HuguesT]

If she shared them, then it's considered redistributing. She would be accused of bootlegging and the penalties are much more severe.

Re:Umm , I think a completely blank hard drive...

[edmicman]

>Because the majority of The People do not beleive music theft to be a crime 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.

I'm over 18 and don't consider it theft. Copyright infringement, maybe, but not theft. It's like those goofy commercials they're putting at the beginning of DVDs - would you steal a car? Would you steal a purse? Would you steal a cell phone? No, I wouldn't steal any of those. But if I could make an exact duplicate copy of any of them, and the original was still intact, then damn straight I would!

Re:Umm , I think a completely blank hard drive...

[mdwh2]

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.

Re:Umm , I think a completely blank hard drive...

[Genevish]

She "stole" 200 songs, yes? Say 15 albums. What do you think the punishment is for busting a store window and stealing 15 albums?

You're missing the point. If you steal 15 albums from a store, you can then give those to at most 15 people. The 15 albums she stole could have been shared with thousands of people. That's why the fines are so much higher.

Re:Umm , I think a completely blank hard drive...

[sonamchauhan]

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 ...

... Vote for them?

Re:Umm , I think a completely blank hard drive...

[The MAZZTer]

Even better, delete the offending files and then run SDelete several times to overwrite all your free space with random data. Then they can't prove anything (although the inability to find deleted files is suspicious).

Re:Umm , I think a completely blank hard drive...

[stuntpope]

Where I live, the majority of The People also believe that speeding in a car is not a crime, or at least they don't consider it wrong behavior. They still are at risk of getting a fine and/or other punishment. Whether there's a moral obligation to follow an unpopular (or largely disregarded) law is one question, but there is still a LEGAL obligation to obey it, until such law is changed. You don't get to pick and choose which laws are relevant to you based upon which ones contravene your wishes, unless, of course, you are willing to face the penalty.

Re:Umm , I think a completely blank hard drive...

[Viol8]

>if I could make an exact duplicate copy of any of them, and the original was still intact, then damn straight I would!

So money forgery is ok then?

Re:Umm , I think a completely blank hard drive...

[Bodysurf]

"I'm over 18 and don't consider it theft. Copyright infringement, maybe, but not theft. It's like those goofy commercials they're putting at the beginning of DVDs - would you steal a car? Would you steal a purse? Would you steal a cell phone? No, I wouldn't steal any of those. But if I could make an exact duplicate copy of any of them, and the original was still intact, then damn straight I would!"

As would I, regardless of what the law said.

Re:Umm , I think a completely blank hard drive...

[edmicman]

Uggggggh. Some thoughts:

It doesn't matter what you consider it... It is still theft.

No, it is NOT theft. It is copyright infringement. Stop calling it that. It is debatable whether copyright infringement is right or wrong (currently it is legally wrong), but wipe that brainwash out. Copying MP3s or movies is not stealing anything from anybody. If someone downloads a file, the world is no different than it was before. Nobody is out anything.

Victimless crimes are still crimes.

Good luck arguing that one - there's a debate that's been going on forever. You're honestly bringing up the marijuana for personal consumption argument? Yes, it's illegal now, but I'd wager that in the next 20 years we'll see something in the way of government regulation of legalized personal marijuana. Just because it's illegal now doesn't make it right.

As far as making duplicate copies of those physical items.....if I were to make a counterfeit copy, yes, that would be a problem. There's really no good analogy between the physical world and the digital world. If I make a forgery of a bank's property deed, yes, that's a problem. But if I have an exact copy of the property deed, down to the last detail, so that as far as the bank or anyone else is concerned is is as real and legit as the original, what is the problem? Are copied digital files less authentic as the originals? There is a vast difference between stealing and copying!!

sigh....

Re:Umm , I think a completely blank hard drive...

[raehl]

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?

Re:Umm , I think a completely blank hard drive...

[bradkittenbrink]

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.

By that reasoning, the KKK would be perfectly justified in lynching people if they were only popular enough, which they were at one time. While civil disobedience is a noble effort against many unjust laws, there are certain laws that no matter how unpopular they are, need to be there. The key is that we live in a democratic republic, not a raw democracy. Your policy is s perfect recipe for mob rule.

Re:Umm , I think a completely blank hard drive...

[hesiod]

> Is it really worth gambling up to $150,000 per track that you are safe?

A better question is, is $150,000 a reasonable punishment for downloading a song off the Internet? No, it is not.

And why do people still erroneously call it "theft"? That's a rhetorical question, BTW; I know it's so they can make something sound worse than it really is. Theft is a criminal offense. This is a civil suit.

Re:Umm , I think a completely blank hard drive...

[vijayiyer]

Wow. Finally a logical response, so of course it was modded flamebait on Slashdot. Moderators: How the hell can you call a post that says that defying court orders and laws is a bad idea flamebait? This whole thread is absurd, but I hope more dumbasses try to defy court orders based upon Slashdot advice. They're going to be grounded for a long time afterwards.

Re:Umm , I think a completely blank hard drive...

[tmorriso]

There is the whole social contract thing, though. You are definitely obligated to obey the laws of the society in which you live.

Federalist Paper #63 http://thomas.loc.gov/home/histdox/fed_63.html addresses your issue with laws that do not reflect the current opinion of the majority:

"I shall not scruple to add, that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions."

Tyranny of the majority was of great concern to those drafting the US Constitution. One of the premises of the six year term for Senators was to allow them to enact legislation that went against the will of the majority because they were actually wise enough to know that the majority is not always right.

Re:Umm , I think a completely blank hard drive...

[Scaba]

I think he might be a strict Constitutionalist. After all, this country was started by a bunch of guys who felt no moral obligation to comply with laws they didn't agree with, laws that were not serving the majority of the people. So they became terrorists and insurgents and and broke the law and started shooting at the government that had stopped serving them. And then they made it a law here that if you don't agree with this new government and its laws, you should start doing the same (as a last measure of course, when your protestations aren't achieving the effects you desire - but they did add the 2nd Amendment for a reason ;>).

Re:Umm , I think a completely blank hard drive...

[Sporkinum]

My question would be how do they know that the drive is the same physical drive that contained the files? As far as I know, p2p programs don't include any data like that. I would say it would be trivial to duplicate the drive without including the incriminating evidence. To me that says that the drive would be inadmissable as evidence as there is no chain of custody to attest to the veracity of the drive.

Re:Umm , I think a completely blank hard drive...

[dgatwood]

In most places, speeding is not generally a crime. It is an infraction. The legal system draws a very clear line between the two.

Re:Umm , I think a completely blank hard drive...

[discord5]

Because the majority of The People do not beleive music theft to be a crime.

Saying that you didn't know something was a crime won't help you... Not believing something is a crime won't help you either. Ignorance of the law (just or not, which is a whole other dispute) is no excuse for not obeying it. If you want laws to change, defying them isn't the way to go.

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.

That's a good one... Hey, I don't like the way the government I voted (or didn't vote) for is punishing murder these days, so *clickety* *BLAMMO*...

Moral obligation is all fine and dandy, but that won't help you in court. If you're in court because someone sued you for something you shouldn't have done in the first place, saying that you did it out of civil disobedience won't cut you any slack. There are many laws I don't agree with, but if I break them I have to realise that there could be consequences to my actions.

If your elected officials aren't serving you, you either have to get rid of them by using the system (not very likely unless there's a huge scandal, or a military force planning a coup), or you have to wait until they finish their term and use your vote to keep them out of office, and get someone elected who will represent your wishes.

Re:Umm , I think a completely blank hard drive...

[Redlazer]

Well, i have roughly 300 songs on my hard drive.

Now, assuming 1$ per song, that would be 300$.

A pebble compared to 150k, yes, but thats money out of my pocket.

Ive never used iTunes, but i would imagine you have to pay taxes.

Here in Florida, thats 6%. My math skills arent up to par, but that pushed each purchase slighty over 1$, and over 300$.

Yeah, not the greatest argument in the world.

But still - if you look at it bulkwise, its still very expensive, especially considering the capacity of modern devices. To fill up an average CD with MP3s, it would cost about 150$, of average quality MP3's, of average length.

Ouch.

-Red

Re:Umm , I think a completely blank hard drive...

[ClickOnThis]

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.

I agree with you, to a point. However ... there is a bit more to say.

It is the duty of a citizen to oppose an unjust law. History has recorded many such laws, but to give one example: at one time in certain states of the USA, it was illegal to teach black people to read. Obviously the law was unjust, and had to be disobeyed in order to address the injustice. It is indisputable that defying an unjust law can make the world a better place. Here is a somewhat more recent example.

Nevertheless, one must never forget that defying a law is a risky move. To paraphrase the exchange between Toranaga and Blackthorn in James Clavell's novel Shogun, there is no excuse for revolting against a higher authority ... unless you win.

Re:Umm , I think a completely blank hard drive...

[stuntpope]

So do laws prohibiting me from firing a gun out of my window in a densely-populated urban residential area. How dare they!

Re:Umm , I think a completely blank hard drive...

[soft_guy]

Wouldn't it make far more sense to simply not defy a court order or even steal music in the first place?

Tell me, what is it like to work for the RIAA?

Re:Umm , I think a completely blank hard drive...

[Xebikr]

but offering a copy of a CD, even to someone who disagrees with any form of copyright infringement, is considered okay.

Because it is ok. Seriously, I don't think you have any idea how easy it is to violate copyright. For example, I copied a portion of your post. I didn't have permission. You own the copyright. I just infringed your copyright in a very distinct form. So did you when you quoted the post above you. "But it's fair use!" you say. Hogwash. It can only be fair use once a judge has ruled it fair use. Until then, it is infringement. Would it be likely to be ruled fair use? Probably, but it's still infringement unless a court gets involved.

Example #2: Just this last week, I was with two different groups of adults who thought nothing of absolutely, and brazenly, violating a copyright owned by Time Warner. We sang "Happy Birthday to You" in public. Once was at a family gathering in a park. The other time was at my place of employment! Shocker! What a hideous group of dirty, theiving, pirates! Once again, only a judge can determine fair use.

So get off your high "I don't steal music" horse. In the eyes of the law, both the examples I used are copyright infringement. It's people like you who have very little understanding of copyright who think that the comparison of stealing physical property with copyright infringement is valid, or even close. But when you understand how easy it is to violate copyright, it all becomes a meaningless jumble. Stop picking and choosing what forms of infringement are "ok" and either condemn all infringement, or none of it.

Re:Umm , I think a completely blank hard drive...

[LunaticTippy]

That's what the defendant did. There were suspiciously missing files and evidence of a deletion tool being used. They missed some references to filesharing programs, probably in the registry.

Re:Umm , I think a completely blank hard drive...

[Naerbnic]

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.

Unless of course, the act itself is morally repugnant.

By the same principle, if you wished to, oh I don't know, murder your neighbor, there are plenty of laws which contravine your wishes, which by the above logic there is no moral obligation to obey. Morality must then be defined by the majority of the people, and nothing else. But murder is wrong for a whole host of other reasons, not the least of which is that you're taking someone's property (their lives) without their permission. Even if congress passed an "Everyone gets one freebee" law tomorrow (following the people's wishes), it would still be wrong. I realize this is an extreme example, but it demonstrates the possible sorts of problems that such a philosophy can create.

Now I'd be the first to admit that file sharing is not stealing by any technical definition, and thus probably should not be a criminal act, but it is still a form of copyright infringement as many posters here have already said. Now, we could argue the gray areas of file sharing for ages, and the properties and problems of copyright law, but the simple fact that you want to download music is no argument for its morality.

Re:Umm , I think a completely blank hard drive...

[aaronl]

This argument is getting very old. No, it is not theft, it is not dictionary defined as theft, it is not legally defined as theft. Most people, like you, do not know the difference, or have been successfully mis-taught by the copyright lobby that copyright infringment is theft. This clouds the issue and makes destroying the public domain much easier for them, all so they can make a couple of extra dollars.

Here is an example of one legal definition of theft: "the dishonest appropriation of property belonging to another with the intention of permanently depriving that person of it".

The current Merriam-Webster definition of theft is quite similar: "1 a : the act of stealing; specifically : the felonious taking and removing of personal property with intent to deprive the rightful owner of it b : an unlawful taking (as by embezzlement or burglary) of property"

None of these fits downloading music. You have not deprived anyone the *use* of the music by making the copy. You have, however, broken the law, under copyright statute. You have committed an act of copyright infringment.

Besides that, different parts of the world have different rules. It isn't either copyright infringment *or* theft in much of the world. Russia and Sweden have vastly different opinions on this as compared to the US or UK.

If 100% of people don't consider it stealing to be theft, the law gets changed and it isn't theft. The prosecuters wouldn't prosecute, juries wouldn't convict, judges wouldn't hear the cases. Fortunately, 100% of judges and lawyers don't think copyright infringment is theft. This is quite likely because the law says that it isn't.

Re:Umm , I think a completely blank hard drive...

[SloWave]

I'm over 18 and the only music theft that I see is the theft of over 100000 years of music cultural heritage by the media companies and their pathetic attempts to charge us for the use of our own heritage. Don't give me any BS about the stealing from the artists, the real artists are getting screwed by the media companies too.

Re:Umm , I think a completely blank hard drive...

[aaronl]

Simple, your act did not cost them anything. The only even slight argument there is that it cost them a non-existant "profit" that they never possessed to begin with. The argument is the same as "I didn't buy the new CD, but I didn't copy it either. However, by not buying it, I deprived the studio of their profit." Your duplication did not take anything that the creator already had.

Actually, marijuana was not made illegal for a good reason. It *is* illegal now, though, so you shouldn't be expecting the power that the government has as a result to be easily ceded. The group of bright stars that made marijuana illegal also tried making alcohol illegal, passed the terrible 17th and 18th amendments, and were fairly seriously owned by the paper lobbies. Now they are owned by the corn, paper, and oil lobbies. It was all to get hemp banned. If it was about the drug, they would have made THC illegal, instead of a general class of plant.

In the case of the deed, making the copy is forgery. Using the forged copy to take away your property is still theft, though.

Re:Umm , I think a completely blank hard drive...

[fireweaver]

What if you are running an OS that has secure file deletion built in?

Re:Umm , I think a completely blank hard drive...

[2nd Post!]

If she were using iMesh and BearShare, what happened is that she, if you want to use the analogy of stealing, stole hundreds of thousands of copies of 15 songs and then gave those hundreds of copies away before destroying her own copies.

At least that's how it appears when you violate the distribution clauses of copyright by using P2P programs.

Re:Umm , I think a completely blank hard drive...

[Phred T. Magnificent]

That's a fairly silly comparison, really.

Money has value only because people agree to arbitrarily assign a value to it, and they do this because they trust that other people will follow the same agreement. Absent the social agreement, money has no intrinsic value, just as counterfeit money has no value. Duplicating the money, however flawlessly, attempts to cheat by using something with no value (not part of the agreed money system) in place of something with (arbitrarily assigned) value. It's an attempt to defraud people who follow the social agreement that gives money its value in the first place.

Duplicating a document like a passport is also an attempt to defraud, based upon false use of the identity of the owner of the original.

Duplicating a car, were it possible, would create a new object with intrinsic value value, based upon its usefulness. No fraud is or needs to be involved. Likewise, duplicating a stream of bits, whether they represent music, software, or what-have-you, creates a new bit stream with the same intrinsic value as the original (whatever value that may have been).

Re:Umm , I think a completely blank hard drive...

[gid13]

Fine, but then the record companies shouldn't be complaining about "stealing" music in an attempt to stupidly oversimplify things.

Re:Umm , I think a completely blank hard drive...

[gid13]

No, I get that. I don't think you understand what I mean. If sharing is the record companies problem (and it is), they would make more sense if they launched a massive campaign against "distributing" music than if they launched one against "stealing" music. They're trying to oversimplify the issue to convince people that sharing data is wrong by comparing it to something entirely different (stealing) that people generally consider wrong already.

Re:Umm , I think a completely blank hard drive...

[koreaman]

The issue isn't whether she possesses the illegally copied songs. The issue is whether she distributed them. If somebody broke into a record store, stole a bunch of albums, made lots of copies, and offered to distribute them to anyone who asked, her penalty would be pretty steep I imagine.

But it's copyright infringement, no more, no less, and I agree with you that calling it "theft" is inaccurate, misleading, and ridiculous.

Re:Umm , I think a completely blank hard drive...

[greatcelerystalk]

It's not theft, it's copyright infringement. There is a difference. A big difference. Many Slashdotters with an understanding of legal terminology have attempted to explain this before, so I'm probably being redundant, but too many people are painting this issue the wrong color.

If I steal your car, I deprive you of your car. I can use your car, but you cannot use your car. If I download a song or a film, I do not deprive you (as copyright holder) of the ability to use your property in any way. There's a very small chance I will deprive you of a sale, but there's no guarantee that you lost a sale by my download, hence copyright infringement.

Re:Umm , I think a completely blank hard drive...

[gid13]

My entire point is that I DON'T want to use the analogy of stealing. It's a silly, oversimplified analogy, because nobody is deprived of physical goods when you copy data. There is no record store that had hundreds of thousands of copies of these 200 songs and now doesn't have them anymore because of the actions of this defendant. Record companies try to associate sharing with stealing because most people already think stealing is wrong. Sharing data, however, is completely different. You may argue that sharing results in lots of lost revenue for the labels, but that's separate. It is not stealing. And if the record companies insist that it is, they should be punished for this false advertising.

Please note that the above discussion is entirely separate from whether or not sharing data is legal, or should be.

Re:Umm , I think a completely blank hard drive...

[Dragon Bait]

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

I'm not sure where you live, but the U.S. is a constitutional republic.

Even if the U.S. was a "democratic republic" (whatever that is), you would not be free to disregard whatever law "contravene your wishes" - that "form" of government would be call anarchy.

Re:Umm , I think a completely blank hard drive...

[ericdano]

Yup. Great little program!

Re:Umm , I think a completely blank hard drive...

[phulegart]

Here is an example of one legal definition of theft: "the dishonest appropriation of property belonging to another with the intention of permanently depriving that person of it".

By copying the music, you are dishonestly appropriating (not paying for; keeping the money for yourself) property (before sale, the song; after sale, the money) belonging to another (record company/artist) with the intention of permanently depriving (you do not ever intend to pay for that song) that person (record company/artist) of it.

Certainly seems to fit the description of theft.

The big problem here is that, as I have already said, this is a victimless crime. It is similar to insurance fraud. It is still illegal.

Ok. I'll come at it from this angle. These artists wrote their mushc and signed on with these record companies in order to make money. If they were creating the music because they wanted to freely distribute it, they would. Some artists currently DO freely distribute their music. Downloading and sharing those songs is not illegal. But just because you have a tool at your disposal that enables you to avoid paying an artist for the music he (or she) has said that you cannot have for free (unless you are willing to wait for it to play in roataion at a radio station), that does not make it LEGAL. Just because you CAN do something, does not mean you SHOULD do something.

Re:Umm , I think a completely blank hard drive...

[andreMA]

So money forgery is ok then?

That would be called "counterfeiting", although I think your use of the word "forgery" is appropriate: both are forms of fraud, in which one represents something as something that it isn't.

Nobody is misrepresenting a shared MP3 as anything other than what it is: an (almost always) imperfectly duplicated unauthorized copy. Is that wrong? Sure. Is it theft? No.

Re:Umm , I think a completely blank hard drive...

[Zimzat]

legal music is only $1 a track on iTunes, more than reasonable.

Well, iTunes might be a viable alternative for some, but not everyone. What about people who don't have a Macintosh or Windows XP? I only have access to Windows 98 SE. It's also pretty hard to play your "legal" music in Linux when you have to make it "illegal" to do so. On top of that, I entirely disagree with how much artists get short-changed when buying from iTunes and other places.

The only answer for me is to either buy the entire CD (a waste of money when I only want one or two songs off the entire thing), or listen to Pandora.

Re:Umm , I think a completely blank hard drive...

[gethoht]

You can do a clean install.... just change the date in the bios before you do it. Then the file dates won't look suspicious

Re:Umm , I think a completely blank hard drive...

[aaronl]

No, those are two separate things.

1) You have illicitly obtained the song. You have not deprived anyone of the song by obtaining it, since you have a duplication without taking away the original.

2) The creator never had your money, so you cannot take it away from them.

If you took a CD from a store, then you have taken property and deprived the owner of it while simultaneously costing the store the money they could have sold the CD for. This is simply theft.

If you duplicate a friends CD, you have duplicated property and not deprived the owner of it. This is copyright infringment. Hence copyright infringment is not theft.

You can't steal something they don't have to begin with, which is why copyright infringment cannot be theft under the legal, or dictionary, definitions of theft. You decided not to pay someone for something. You found another way to obtain that something, without taking the owners something away. Due to current law, your method of obtaining that something is illegal, and termed copyright infringment.

Copyright infringment is *closer* to a victimless crime, but it can be argued either way. Insurance fraud is definitely not a victimless crime. By abusing insurance, you cost all other insured parties money by forcing the insurance company to raise their rates to cover the pay out.

I never said that copyright infringment was legal, or right; it is not either! Copyright provides additional incentive to create while enhancing the public domain. There are valid reasons for copyright to exist.

Re:Umm , I think a completely blank hard drive...

[ClickOnThis]

One of the premises of the six year term for Senators was to allow them to enact legislation that went against the will of the majority because they were actually wise enough to know that the majority is not always right.

[emphasis mine]

I don't think senators are fundamentally "wiser" than any other elected officials. Rather, the six-year term allows senators to be somewhat more insulated from the temptation of doing what gets them re-elected, instead of what's right. At least in theory.

Bicameral legislatures (i.e., "lower" and "upper" legislative chambers) are common in other democracies besides the US. In some of them, members of the "upper" house are actually appointed rather than elected, for a similar reason: to provide a separate chamber of debate that is insulated from the influences of re-election that can corrupt a lawmaker's decisions. Appointed members are generally worthy and venerable (although obviously some patronage occurs) but the point is that these people are not really any "wiser" in a fundamental way.

Re:Umm , I think a completely blank hard drive...

[phulegart]

So, if I take a blank piece of copy paper from a desk, there is nothing wrong with that. If I take a piece of paper from a desk that has someone's credit card information on it, but it is not the ORIGINAL document with that information, I'm only taking a copy. Your argument says there is nothing wrong with that.

Remember, what I DO with that credit card information is another matter altogether. If I do nothing, but keep it handy so I can admire it in the privacy of my home, then there is no reason why I should not be able to continue to take copies of people's personal information without their knowledge or consent, because I am not intending to do anything illegal with it. Your personal opinion about what you THINK I'm going to do with that information is irrelevant.

The creator may never have had my money, but they did have the song. My duplicating it without ther knowledge, does not validate my duplicating it. Because they are selling the song, in order for me to posess it legally in any form, I must purchase it.

Re:Umm , I think a completely blank hard drive...

[BalanceOfJudgement]

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.

Thank you. What most people forget is that law, justice, these things are a consequence of the social contract.

One side breaks it (government - those in power) the other side is under no obligation to maintain their part of the bargain.

But don't take my word for it, read the works of Hobbes and Locke, who put in far better terms than I could.

Re:Umm , I think a completely blank hard drive...

[aminorex]

Well you can't vote for the best candidate, because they keep killing them. Like JFK, RFK, Wellstone, Carnahan... And of course if you do vote for a candidate which has been selected for the official list of two practically equivalent options, it doesn't mean that your vote will be *counted*. The U.S. hasn't had a legitimate presidential election outcome since 1996, for example.

If you're looking to legitimize the raw exercise of the sword on the grounds of democratic mandate, I don't think you'll find adequate grounds south of the 49th parallel or north of Costa Rica. The principal distinctions between, say, Cuba and the U.S. appear to be the length of the tyrant's tenure and the health and wealth of his slaves. (The slaves in Cuba are generally healthier, and those in the U.S. are generally wealthier.) In both cases the masses labor largely for the benefit of the state. In both cases the masses cower in fear of their protective big brother. In both cases there are no firm protections of inherent and inalienable human rights. In both cases there are innocent people imprisioned indefinitely on political grounds, many on the same island, in fact. In both cases the official policy is one of suppression of disfavored religious groups by force of arms.

Re:Umm , I think a completely blank hard drive...

[aaronl]

Either way, you've taken the piece of paper off of the desk without consent. That wasn't *your* piece of paper, so it's theft. That probably wasn't your point, though.

There isn't anything illegal about having personal data about someone. There is something illegal about the misuse of that data. However, there are other laws at play with personal data, and various privacy laws. That makes it substantially different than a copy of some software or music. Not to mention that you probably had to take those documents without permission, thereby depriving the owner of their use, and then you would have to copy them, and then you would have to return them. That is still illegal for many reasons that have nothing to do with copyright law. One of those reasons is that step 1 is, in fact, stealing the document in the first place, even though you return it in step 3.

Your duplication of the song does not deprive the creator of the song. That's why it isn't theft. If you had to go to the creators house and steal a CD with the song on it in order to get the song, then that would be theft. You would have taken the song (on the CD), and by doing so, the creator would no longer have the song (on the CD).

Re:Umm , I think a completely blank hard drive...

[smoker2]

Then who would pay the $1 billion for the FIRST car?

The government ?

Given how much money they extort from car owners already, it would pay itself off very quickly. Insurance (+tax), petrol (+tax), yearly test fees (+tax), Licence plates/car tax (+tax), plus all the raw materials to build it (+tax).

Maybe a car wasn't such a good analogy, huh ?
Or maybe, as we are now supplying the raw materials, the damn cds should be slightly cheaper perhaps ?

Apropos nothing, I remember the days when you could go into an off licence (liquor store to you) and fill my own container with wine or cider. AND it was cheaper that way. Now when we really need to be "green", such a practice has died out.

Re:Umm , I think a completely blank hard drive...

[IthnkImParanoid]

I'd guess a bunch of engineers/mechanics would get together and build one as a hobby, like people I know already that buy older cars for a couple hundred bucks and fix them up on weekends. I'm guessing if we were able to go around duplicating food and objects and such, we would have much more spare time, unless we all had to work to process and deliver the energy required to duplicate everything.

Re:Umm , I think a completely blank hard drive...

[nasor]

"Stealing is taking something without permission."

But you aren't taking anything. You are creating a copy. There is an obvious and clear difference. If I examine your car and then build an exact copy of your car, would you consider me to have "stolen" your car?

Re:Umm , I think a completely blank hard drive...

[tmorriso]

I should have been clearer with my pronouns. "They" was not referring to Senators as wiser, but to the drafters of the US Constitution. Until 1913 US Senators were chosen by the State legislatures, not popularly elected.

Re:Umm , I think a completely blank hard drive...

[gweihir]

Even better, delete the offending files and then run SDelete several times to overwrite all your free space with random data. Then they can't prove anything (although the inability to find deleted files is suspicious).

Careful with that. That is possibly what was done here. The deletion date is in the directory entry, not the data sectors! And the other evidence is in obscure places like the registry.

As to that a clean install would look suspicous: Yes, it would. But there would be no proof left.

Re:Umm , I think a completely blank hard drive...

[phulegart]

so it seems that you are implying that if an item is not unique, then it is OK to steal it, as long as the person you steal it from cannot tell that it is missing. Do you know the difference between manslaughter and murder? Intent. If one cannot prove intent, one cannot prosecute for murder. Intent can be proven by past actions, up to a point. However, if a defendant suffers remorse and changes their mind, immediately before their actions cause the death of another individual, that can still make the difference between murder and manslaughter. Part of the problem here also, is that you are working with an outdated and archaic definition of the word "theft". Theft was defined before it was possible to produce an unlimited number of copies of something, each being indistinguishable from the original. However, the spirit of Theft does cover this. If you steal an ear of corn from a field of corn, it is still stealing. It does not matter if it will never be missed. It does not mater if it is such a small crime. It is still theft. If it is overlooked by the farmer that grew the corn, that is up to the farmer. Also, what you are implying, if a record producer manufactured an unknown quantity of CD's, meaning that somehow a production run did not get tracked or noticed, then someone taking one of those CD's without permission would be stealing it. It does not matter if the loss of that CD would not affect projected sales; without knowing how many CD's there were to sell, there would be no way of knowing how much money would be made off selling that CD. Stealing the CD does not deprive the creator of the songs on it. It does not even affect the retailer, for in this instance, the CD was stolen from the manufacturer. It is still stealing.

Re:Umm , I think a completely blank hard drive...

[DavidTC]

No. Just because you aren't under the moral obligation to follow the laws probiting murder, doesn't mean you aren't under a moral obligation not to kill people.

To rephrase in a way that makes a bit more sense:

If someone random person on the street demands I do something, I am under no moral obligation to do that thing just because they say so. Right? I think everyone would agree that people don't have to do things just because people asked.

If the random person is an old lady, and she's asking for help to fight off an attacker, I'm still under no moral obligation to do that thing because she says so.

I am, however, under a moral obligation to help a defenseless old woman being attacked.

We can be under no moral obligation to listen to what the government, or anyone, says to do, and yet be under an moral obligation to do certain things. Even if they government says otherwise, or even the same thing!

Notice I'm not taking a stand on copyright infringement here. I'm just pointing out that no one, ever, us under a moral obligation to follow the law, unless, perhaps, they were the ones who created it, but that doesn't mean that the law can't match our preexisting moral obligations.

And people don't even always agree with the laws about murder, especially WRT self defense.

Re:Umm , I think a completely blank hard drive...

[aaronl]

Access to the original work does not mean that you had to steal the work the get access. Say your friend goes and buys a CD, and then makes a copy for you, there is no theft involved. Now pretend that your friend is some random person on the Internet hosting a torrent.

Re:Umm , I think a completely blank hard drive...

[aaronl]

No, I'm saying that unless the act of you taking the item means that the first party no longer has the item, that it isn't theft. If you take a paper off of someones desk, they no longer have the paper. If you download a copy of a song, then you have the song, and the first party still has the song, and so on. There is no deprivation of property at work in the latter example, and so it does not constitute theft.

Intent has nothing to do with this.

Besides that, in your example, if you didn't cause the persons death, then there is no murder *or* manslaughter. There may be attempted murder/manslaughter, or conspiracy to commit murder/manslaughter, charges.

I'm not working with an archaic or outdated definition of theft, either. I'm working with the current, and exact, definition of "theft" as it is both legally defined and dictionary defined as part of the english language. The word simply does not mean what you want it to mean.

Copyright was invented in response to easy reproduction of a work. Seeing as to how movable type was invented in the 13th century, I would doubt that nobody ever thought you could easily duplicate a work before the late 20th century. It just wasn't considered theft to do so, not 200 years ago, and not today. It's infringing upon the artificial legal concept of copyright to duplicate a protected work.

Again, when you take the ear of corn from among the many, *you have still deprived the owner of the ear of corn*. They no longer have it, and it is because you took it. This is exactly the same as stealing a CD from an unknown number. You still took that CD from someone, and now they don't have it. The songs are not being stolen, the CD is, and now there is one less CD, and so it is theft. Downloading a song does not make there be one less song, it does not deprive the creator of their music, your act does not create an additional cost to the creator, none of this. Nothing that is required for the action to be theft.

So no, it is NOT still stealing; it is still copyright infringment.

Re:Umm , I think a completely blank hard drive...

[Lisandro]

>Yes, it's illegal now, but I'd wager that in the next 20 years we'll see something in the
>way of government regulation of legalized personal marijuana.

Dream on. Just because dope smoking students, hippies and rastas want it legalised doesn't mean the whole population thinks its a good idea. It was made illegal for a good reason.

        Which is...?

Re:Umm , I think a completely blank hard drive...

[fmoliveira]

There is the pirate party. Even if they never win, the main parties will have a measurable way to know how many votes they are losing for it, and it may be effective to change them.

Re:Umm , I think a completely blank hard drive...

[10101001 10101001]

Theft is the act of stealing. Stealing is taking something without permission.

Congratulations. Now let's try to relate this to copying a CD. Note, IANAL.

Situation 1: I take a CD from someone without the permission.
Conclusion 1: I stole a CD. Ie, I commited theft.

Situation 2: I borrow a CD from someone with their permission, I could copy the data to a new CD. Finally, I return the borrowed CD.
Conclusion 2: In most of the US (all?), this would be copyright infringement. The owner of the CD still has their CD, so it wouldn't be theft.

Situation 3: I go to court and claim I own the copyright to music on a CD, even though I never made the work (directly or indirectly) and the work was never legally transfered to me. The court ends up siding with me, as the opposing side doesn't show up.
Conclusion 3: I stole the copyright. I am guilty of fraud legally.

Situation 4: There is only one copy of a copyrighted work made by John. I take that copy without his permission with intent to destroy it.
Conclusion 4: I stole John's copy. John still owns the copyright on the work, even though the work may no longer exist.

Hopefully this will help clear up some things. Copyright is a right that exists even when copies of a work don't necessarily exist. To claim that copyright infringement is theft is to ignore how copyright behaves rather differently than physical property.

Re:Umm , I think a completely blank hard drive...

[mdwh2]

So get off your high "I don't steal music" horse.

Eh, what?

I can see your points and generally agree, but I fail to see what my post had to do with being on a high horse. My point was that people do not view copyright infringement as theft (whether or not they view copyright infringement as wrong in itself). You see to agree with me by providing examples where people do it all the time (unless you're saying that singing Happy Birthday is equivalent to looting a shop). Nowhere in my post did I say that some forms of copyright infringement are okay, and others aren't.

As for your examples - well, it's actually Slashdot that are performing the redistribution of my text, and it would be hard for me to claim I didn't intend them to have my permission when I posted the information on the site. As for the second example, I think that any sensible copyright laws should have fair use provisions, that include at the least non-commercial singing of a song.

Well, actually any sensible copyright law wouldn't let a song written 71 years ago, and when the authors are long dead, still be under copyright...

Re:Umm , I think a completely blank hard drive...

[Xebikr]

Re-reading my post, it does sound harsh. Sorry. I misconstrued your statement as one equivicating stealing with copyright infringement. More info on the Happy Birthday copyright issue here.

DBAN anybody?

[bigtomrodney]

If you're going to be engaging in such nefarious activity, or just in general are a clean freak when it comes to offloading hardware - dban.sourceforge.net

There is absolutely no recovering from a full sweep of that. There would have been no traces of deleted files if that had been used.

Solution

[$uperjay]

Keep your mp3s on a separate hard drive. Minimize references to this hard drive by the rest of your OS. Keep a tiny folder of legal music or video as red herring on your main drive.

Shit, I think I may have just violated some acts here.

Not Fair

[Anonymous Coward]

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?

Re:Not Fair

[91degrees]

So, you can probably demonstrate that you do this.

Re:Not Fair

[cdn-programmer]

What about those of us who never downloaded anything ever?

How do you prove a negative? I'm a mathematician!

This is where the theft analogy falls apart

[zoeblade]

If copying a copyrighted song counts as theft, does deleting the evidence count as giving it back? Shouldn't that warrant a reduced sentence?

Re:This is where the theft analogy falls apart

[plasmacutter]

but that's not really how it works with shoplifting (not that I support or agree with the RIAA's insistance that infringement = theft at all).

When someone is caught shoplifiting it doesnt matter if they decide to give it back, theyre still subject to prosecution.

The same with grand theft auto.. stealing a car and then voluntarily giving it back to the owner after youre caught does not absolve you of the crime.

Re:If you want to understand their view

[bky1701]

So you dont believe in intellectual property or copyright at all eh?

I guess it's hard to know about intellectual property when you lack the first part of it.

I didnt realsie that there were so many communists in the USA these days.

You mean those Russians and Chinese who like to build walls and missles and talk odd? No, I never noticed many myself.

It seems you want tor edistribute the hard work of others without their consent.

I know, he's evil. I bet he didn't even ASK Ikea before having his yard sale!

Sounds like you dont want anyone to produce new music, movies, games or software, as there will be very little of any produced when there is sod all payment for the product.

Yeah, that's how the communists here are. Wait, didn't I already explain that? Hmmm...

Go on, tell me how the 'open-source' movement is going to fund the next lord of the rings movie, we could all do with a good laugh.

You mean like those render servers that run Linux? Or the people who use blender for modeling? Yeah, that's real funny... I guess...

I bet you have never created anything of value in your entire life, yet are happy to leach off the work of others.

I made this post, but then again only time will tell if it has any value or not. Oh well, I guess we can't ALL be overpaid RIAA plebes.

Re:Must have been blonde!

[zakezuke]

What she should have done is:

3. buy a new drive and format it

That's all well and good, except for the fact that most hard drives purchaced these days have a mfg date and default warranty experation date. You could get lucky and find a drive old enough to fool the court, but not very likely.

A used computer doesn't have zero'd sectors

[BlueCoder]

This is how they determined she wiped her computer. A computer would normally be filled with all sorts of random junk, not zero'd out, or ramdom data. Just do incremental backups people or download all your crap on an external drive.

And I've said it once and a million times because it's happens to me every so often. There are lots of hacks out that that while they won't break the security of your computer, it will give the hacker some user level access. Just recently I discovered my honeypot VM was being used as a redirector and remote for BT and to send mail through my ISP.

But another poster is correct, destruction of supposed evidence isn't evidence. It may be contempt but it's not evidence. And contempt is a crime punishable by jail time. This judge overstepped himself.

Technically if she were guilty all she would have needed to do is go on irc and have them infect her computer. Any date time stamps on infected files are irrlevent as trojans modify those times and real hackers update their trojans to stay ahead of detection programs. All it would take is one well publicized example of this and every RIAA and MPAA suit would be dismissed before it ever got to trial. They would have to reasonable prove the computer was secure before it got to trial.

Computers are not easy to secure.

Re:sick of it

[moxley]

Amen Brother.

Next time you reinstall windows or linux...

[eagl]

Make sure you retain a lawyer the next time you reinstall windows or linux, because you never know if the RIAA is going to hit you at random.

I recommend suing Bill Gates the next time he buys a new hard drive, on the theory that he's deleting evidence. No actual proof is required, merely wiping a hard drive (identity theft protection, right?) is PROOF he's up to something!

time to play grumpy old man

[swestcott]

I rely don't get it every one is giving tips on how to break the LAW she was under an order to provide evidence she is lucky she is not in jail for this. Disobeying a judges order is a serious offence even in a civil trial now I don't agree with the heavy handed way the RIAA is handling all theses cases and 200 songs in the grand scheme of thing is rely not a big deal.

grumbel grumble damn kids GET OFF MY LAWN

Murder analogy/Did she really tamper with evidence

[sowth]

I'm not so sure your analogy with murder fits. She could receive a judgement of $30 million. (200 songs times $150k) That amounts to a lifetime of slavery to the RIAA, not much different than life in prison (maybe worse), so it could be as bad as murder (though no death penalty, but wait a few years ;-).

Also, I question wether she really did try to erase evidence. If you read the article, it says: "...the record companies' expert opined that the defendant had downloaded over 200 sound recordings during 2005..." (emphasis mine.) She could have removed the file sharing program and deleted the music several months ago, possibly before hearing about any court case, and the computer would've overwritten most of the data by regular operation.

In fact, how can we really know from the story if she really was using a file sharing program at all? From all the other news stories I've read, I wouldn't be surprised if they wrongly accused her, searched her hard drive, found nothing, then said: "well, she must have wiped it." I don't even see her side of the story here...

I don't get it...

[Hashi Lebwohl]

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?

Re:I don't get it...

[lawpoop]

Probably the evidence was the logs of the downloads correlated with her IP address or username on the filesharing network.

Re:I don't get it...

[Ravensfire]

If you read the court order, the judge noted that the plaintiff's case was largely dependant on the evidence on that hard drive. Without that evidence, the case was significantly harder (if not impossible) to prove. The judge also held that the actions by the defendant were deliberate and that the defendant knew she had an obligation to preserve the evidence.

With all that, it's hard to see how the judge could have done anything other than what he did.

-- Ravensfire

Re:I don't get it...

[BalanceOfJudgement]

With all that, it's hard to see how the judge could have done anything other than what he did.

While I see where you're coming from...

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.

Re:I don't get it...

[monkeydo]

It is called spoliation, and there's probably something similar in your juridiction. In a civil case, there is what's known as "discovery" when the parties must produce all relevant evidence in their possesion and provide it to the other parties. If you've destroyed evidence, then it is called spoliation. Depending on how and why the evidence was destroyed, there may be a range of penalties. If the destruction was innocent, the judge just might decide that the evidence just isn't available. If the destruction was not so innocent, the judge can instruct the jury that they are to assume that if the evidence had been available it would have been inculpatory, or as in this case, simply grant judgement for the other party.

A defendant (or plantiff) shouldn't be able to benefit by destroying all of the evidence against him. If that were the case, we would never be able to decide lawsuits.

Re:I don't get it...

[badbrownie]

You can't give them the minimum penalty in that case as that would result in anyone who would be found more than 'minimally' guilty wiping their drives in order to downgrade their liability. The only way to prevent that is to give them the maximum penalty. It's exactly the same at a parking garage. If you lose your ticket, they don't charge you the minimum, they charge the maximum.

Re:I don't get it...

[BalanceOfJudgement]

Eh.. I know, and while I understand the reasoning, I simply cannot accept its consequences in this case. $30,000,000 for 200 songs? That is not reasonable by any stretch of the imagination.. and that tells me there's something wrong with the law that allows it to be $30,000,000.

It would make more sense to judge based on actual damages and not on the industry's extortionist attempts at rewriting US copyright law. But, that's just me talking into the wind.

Re:sick of it

[LaughingCoder]

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.

Re:Don't destroy the evidence, let them do it for

[MirthScout]

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.

Guilty of what?

[SamSim]

Guilty of what? It's not a crime to have porn.

Re:Murder analogy/Did she really tamper with evide

[The Warlock]

Fun fact: In Windows, if you delete the folder for a program (or if the program has a poorly written uninstall program), program configuration stays in the Registry. (Kind of like forgetting to delete config files in /alt under *nix). That's what happened here.

Moral of the story: nuke the drive from orbit; it's the only way to be sure.

Purjury must have some damn harsh punishment!!!

[sowth]

The punishment for purjury is worse than a 30 millon dollar (200x$150k) judgement??? HOLY CRAP!

Re:Purjury must have some damn harsh punishment!!!

[rm999]

Yes.
http://money.cnn.com/2004/07/16/news/newsmakers/ma rtha_sentencing/

Re:Purjury must have some damn harsh punishment!!!

[sowth]

So you think 5 months of prison + 5 months of home confinement + 2 years probation + $30k fine is worse than a 30 MILLION US Dollar judgement?

In case you don't understand our numerical system here, a million is equal to a thousand multiplied by a thousand.

You must make a huge shitload of money to think such a huge judgement is preferable to a few months in prison. Bill Gates, is that you?

Re:Purjury must have some damn harsh punishment!!!

[rm999]

Wow - I was just humoring your original statement without realizing you were actually serious.

First, 30 million dollars is an upper-limit. That means 30 million dollars max penalty. The RIAA has to argue what the *damages* were - no rational person would agree that those were actual damages. Again, an upper-limit.

Second, if she can't afford the 30 million dollars (if the court was actually stupid enough to allow that big of a ruling) then there's not a whole lot the RIAA can do. You can't squeeze blood from a turnip.

Third, prison sucks. Watch a movie about prison, read an interview by martha stewart, whatever. It sucks. I would rather be broke and free than a billionare and in jail. Even if it's "only" for 5 months. Martha Stewart is forever an ex-convict.

Re:So what?

[nelsonal]

When you are under a court order to turn something over to them in its current format you better keep the old one even if you replace the drive. Until noted by the courts with a summons you are free to delete files willy nilly (until windows stops working, I guess).

This is why you keep a second boot drive and USEit

[plasmacutter]

Perfect way to avoid detection.

When you get your computer, get a second boot drive and mirror the installation you have.

One random day a week load this second boot drive into your computer and actually USE it for that entire day.

if you receive a subpoena, replace your normal boot drive with your semi-sanitary mirror, bury the original hard disk in a tupperware container someplace really hard to find until they inevitably dismiss your case for lack of evidence.

Re:Stupid!

[plague3106]

What if she had done this before the court order though?

Re:Stupid!

[Cro Magnon]

More severe cases only put the files into the Windows waste basket and emptied it.

I can't help but wonder if anyone ever tried to put the files into the wastebasket and DIDN'T empty it.

Re:If you want to understand their view

[Kombat]

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?

How do they know the files she had were songs?

[1cebird]

How would they be able to prove that a downloaded and deleted file, say formerly "Eagles - Hotel California.mp3", is really the song it appears to be? It could be some spin-off work that is free domain--or something else altogether. Somehow I doubt their P2P spies actually check the content they see being retrieved.

I think that courts should be required to actually play back every bit of data that is presumed to be illegally in the defendent's possession as proof. 200 songs would only take what, 13 hours of gruelling torture, being exposed to someone's poor taste in music? Maybe by then the court would be so sick of being forced by the RIAA to listen to music that they would get thrown out on their bleeding ears.

At least in the U.S.

[WhiteWolf666]

The better answer is to use encryption.

Nested TrueCrypt volumes should do the trick. While some of the more paranoid may believe that the NSA can break into TrueCrypt type stuff (I don't), the powers that be surely aren't going to blow their load on a simple RIAA anti-P2P case, now are they?

Re:If you want to understand their view

[tomhudson]

"That's a stupid analogy. Science is public knowledge, and science advances when the knowledge is freely used and spread.

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."

Since when is science "public knowledge" that's free for everyone to use. Last I heard, there were trade secrets, patentable IP, etc.

Then there's the question of science as an art form. Ask any c or assembler programmer - there IS such a thing as elegant code. It IS just as much art as science, it IS a unique expression, and yet its also a good feeling to try to give it back to the community at large, to share it, etc..

Good science in any field is more of an art form than a lot of the crap out there that passes as "art."

Or, of course...

[Kythe]

...simply don't worry about it, since the chance of a given file sharer being contacted with a demand for money, much less dragged into court, is on the order of your chances of dying from some fairly rare causes.

If you are guilty and you know it

[jpyeron]

1) mirror the old to the new,
2) wipe the old,
3) set clock (back in time)
4) install on old
5a) set clock
5b) copy files or install app
5c) repeat
6) buy used cds of all songs on old

Re:sick of it

[MemoryDragon]

You just forget one thing, that the us slowly but surely develops into a central managed economy, monpoloies are not broken up nowadays but they are on the edge of getting way too much political influence, companies do not plan by the market but by quarters which is even worse than the communist five years plan and instead of trying to avoid monopolies, country sanctioned monopolies in form of trade laws and patents are plastered all over every free economy there still is. And what is left of a free economy is sued into oblivion by the existing political and economical oligarchy. I think the US is more stalinistic (not communistic) than eastern europe (at least poland or hungary) ever was....

Re:If you want to understand their view

[goldspider]

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?

WTF a joke

[cdn-programmer]

This judge does not deserve to be re-elected.

I am so glad I am not an American - yet I am - by birth. I'll look to be the first one to miagrate to Mars.

Too many conspiracy theorists

[jbirdkerr]

There are too many folks looking for some conspiracy in this whole ordeal. Sure, the method that the record companies use to recoop their supposed losses is a little less than scrupulous. However, it's not like they're just randomly targetting someone. They found out she was downloading copyrighted material (which is currently illegal) and sent out a court order to have her HDD seized, etc. It was only after learning of this court order that the defendant attempted to erase the incriminating material. Look at the timeline before jumping to conclusions, folks! In addition, keep in mind that this is a civil case, so the court will have to find liability on the part of the defendant first. Deleting stuff after learning of a court order is not exactly a practice that would inspire a best-faith relationship with the courts.

Re:Too many conspiracy theorists

[NewYorkCountryLawyer]

"They found out she was downloading copyrighted material (which is currently illegal) and sent out a court order to have her HDD seized, etc."

These assumptions on your part are not accurate, and may be the result of having read fifth hand accounts of the court's decision, instead of the decision itself.

In fact they did not find out about any downloading, on her part or anyone else's. All they knew is that a computer linked to her account had copyrighted files on it which were in a shared files folder that the RIAA was able to access one day through iMesh. They did not know if the files were obtained legally or illegally. They did not know if anything was done with them which was illegal. The judge even noted that the RIAA's own evidence was "scant and piecemeal".

Neither did they get a court order seizing anything. A lawsuit was commenced. As part of the pretrial discovery process, the RIAA sought, and obtained, an order directing the defendant to permit plaintiff to make a mirror image of her hard drive.

In his decision the judge expressed anger that defendant had used a defragmentation utility subsequent to the Court's order, and prior to the mirror imaging.

It is not clear to me when the judge is talking about "wiping" and when he is talking about "defragmenting".

I wonder if the programmers out there can help me on that one.

Re:Too many conspiracy theorists

[jbirdkerr]

Sorry for my incorrect verbage. However, both articles I read stated that the court order required her to produce the drive (or at least a copy) as evidence. And from what I read, I gathered that she did something to tamper with said evidence. She may very well have "wiped" and/or "defragged" with no intention of harming any files that could be considered eveidence, but under the circumstances this definitely would look suspicious.

Re:Too many conspiracy theorists

[NewYorkCountryLawyer]

No problem. There's no way you could have gotten to the decision without first clicking through to the linked source, then clicking through to their linked source, then clicking throught to their linked source (my blog post), and then clicking through from there to the litigation document. That's a bit much to ask of any reader.

More importantly, have you had a chance to read the decision? Can you tell if the judge is mistaking a defragmentation utility for wiping software? Can you distinguish between when he is talking about wiping and when he is talking about defragging? I'd really be curious as to what the technical folks can tell me about that.

To me the most interesting legal point is the judge's observation that the RIAA's own evidence was "scant and piecemeal". Isn't a plaintiff supposed to have something more than that before dragging someone through the mud by naming them as a defendant in a federal lawsuit?

Re:What they should have done

[cdn-programmer]

What "registry". Surely she would be smart enough to not use anything by M$. If not - then maybe its her own damn fault.

Someone had to say it....

[NoRefill1005]

This breaking news just in............The RIAA experts also found this message. "This copy of Microsoft Windows XP is not genuine". Bill Gates has now joined the lawsuit.

ewwwwhhh!

[cdn-programmer]

The normal reaction from 90% of the women I know is that if something they don't want comes into their lives - they tend to say ewwwwhh! and try to get rid of it as quickly as possible.

Sometimes the reaction is to vomit.

Denis Richards did a really nice vomit scene in Star Ship Troupers.

A wiped hard drive is clearly not evidence of anything other than she wanted to keep the slate clean.

Of course - maybe the powers who run /. are toying with us and there is evidence of what was on the HDD before it was wiped.

Uh, viruses?

[Ender77]

She could have wiped her drive because she cought a virus. She was using Imesh and Bearshare after all.

Wiping.... or Defragmenting?

[NewYorkCountryLawyer]

Are you folks clear that the judge was talking about wiping vs. defragmenting? Here's the actual decision.

Insanity Clause for Computers

[GnuTzu]

So, Windows would be the OS of choice for people who want to plead insanity for their computer?

Innocent Until Proven Guilty

[iviagnus]

What happened to, "Innocent until proven guilty?" I would hazzard that if her hard drive was wiped, and neither the court nor the RIAA could then prove her guilt, she should be considered innocent. Is this the United Soviet Socialist Republic or the United States?

Re:Innocent Until Proven Guilty

[cdn-programmer]

The USA has put a greater percentage of the population and hense more people behind bars than the Soviet Union ever did. Of course - most of these people were black. :-)

Re:Innocent Until Proven Guilty

[Tim C]

At the very least, she's guilty of destruction of evidence. I don't know what the penalties are for that (IANAL, etc) but I wouldn't be surprised if they're rather more serious than those for copyright infringement.

Re:Don't destroy the evidence, let them do it for

[jimicus]

Seeing as the circuit board in question generally has the power connector soldered directly onto it, that's a non-issue.

However, "buying another drive of the exact same model" is interesting. Seems to me that if you combine the "switch the power connections" with "use an antiquated hard drive which they will almost certainly be unable to source another of" would solve the problem.

Suddenly I forsee a huge market in 20 year old 5MB hard drives.

Here's a thought

[jimicus]

This would be highly illegal, but it's a thought.

Given the scenario of "subpoena'd to produce hard disk", who's to say it is impossible that the week before the subpoena was served, the previous hard disk failed and was replaced? Unfortunately the failed disk has been disposed of.

Re:Here's a thought

[cdn-programmer]

That would be dumb. Failed drives can be read just as Nixon's tapes were read....

Re:Here's a thought

[jimicus]

This is true. See the second half of my comment - "so it was disposed of". What are they going to do, visit the local landfill and search for the drive?

Re:Here's a thought

[cdn-programmer]

It would have to be disposed of innocently - not with intent. The issue here is the intent to get rid of the stuff. Had she done this before she was served then she could argue she didn't know what was going on, had no idea she was doing anything illegal, somehow got the idea that maybe there was something not quite right about the situtation and got rid of everything because she was being a good girl.

After she has been served that being a good girl argument becomes harder to make. But she certainly can say all her friends told her to just get rid of it.

She'll have a decent case if she is deaf. Or if she like me doesn't even own a CD player that works.

Re:Here's a thought

[surprise_audit]

I'm still wondering why the subpoena wasn't delivered by a big hairy cop who immediately took the PC away. Seriously, the court effectively just sent a note saying "please send us your computer"?? That's practically *begging* for evidence tampering...

Re:Here's a thought

[jimicus]

It's a civil case, not a criminal one. In a civil case, everyone is expected to play by the rules.

Frankly, it wouldn't surprise me if the entertainment industry had a few words somewhere to ensure that things were worked this way. Means that the chances of someone trying to destroy the evidence and thus earning a default judgement go through the root.

Re:Here's a thought

[surprise_audit]

Civil case or not, the fact remains that a good proportion of people, when faced with a "send us this thing that will incriminate you" demand, will take steps to make that thing disappear. I'm not saying she was right - I think she was really stupid - but that's got to be the #1 reaction of any normal person: "how can I minimise my liability?" If the demand isn't immediately followed up by confiscation of the evidence, stuff will go missing.

Re:Here's a thought

[jimicus]

And my point was, in this case it's in the prosecution's interest for things to go "missing" because it means a default judgement - always assuming that the defendant does a lousy job of making things go missing, which in 98% of computer-related "destroy the evidence" cases could be fairly safely assumed to happen.

Re:If you want to understand their view

[TheSkyIsPurple]

>Correct - it's nobody's right to own it. You can't own a number.

Can I have your bank account number, pin, and social security number? since you have no right to own them

Single Mom

[cdn-programmer]

What is even better is that the court and the RIAA are now going after what appears to be a single mom.

If they throw her in Jail there will be two kids in the "system". If this was a winders computer - likely - then it likely could have been owned.

This is like being charged for child pornography because a child molester calls you and you answer the phone. Of course the USA courts have thrown a number of single mothers in Jail because they took a message for a boyfriend who was dealing in drugs.... and they didn't know anything. There have even been movies made on this. In some respects the USA justice (sic) system is really sick.

The clear answer is that she probably didn't know it was there. If it was there, her boy friend probably put it there and she probably just tried to get rid of it because she probably loves her kids and wants to raise them.

Re:Single Mom

[cdn-programmer]

Perhaps it looks obvious.

There is no evidence she downloaded anything. The RIAA has sued dead people. The only evidence is that someone might have used her computer for something and the something is not anymore clear than the someone is. When you connect your comnputer to the net you connect every keyboard in the world to. This means you litterally invite every kid in every bedroom in the world... and it is little different than if you just give them the keys to your house and go to the restaurant for dinner.

Windows is not secure.

If this was a windows machine then the RIAA should have to prove first that it wasn't owned and 2nd that she actually was doing the downloading and prove this via evidence that does not come from her machine.

IMHO - her reaction to get rid of it as fast as she can is a normal reaction and it was probably her friends who told her to do this. My son and daughter would come to this conclusion.

My brothers and sisters would also come to this conclusion - IE - just get it out of your life as fast as you can.

She should have been more cleaver and organised for one of her friends to break into her house and steal the damn thing and then report this to the cops as a theft.

If this goes to anything more than a light slap on the wrist then the judge should be kicked off the bench in the next election. Its too bad we can't do this in Canada... yet most of the judges I've dealt with have actually been pretty good.

Re:Stupid!

[denebian devil]

What if she had done this before the court order though?

The court order was to sanction here *after* she destroyed the evidence. Once you are made aware that you have been sued in court (i.e. served), you *cannot* destroy evidence that is pertinent to that suit. If the other side finds out you have done this, they can file for sanctions. No court order needs to tell you that this is so, because these are the standing rules of the court (of course different from place to place depending on where you have been sued).

But IANAL ;)

Re:Stupid!

[QCompson]

I can't help but wonder if anyone ever tried to put the files into the wastebasket and DIDN'T empty it.

There's a difference?

Why do people still download illegal music?

[williambbertram]

Trust me, I couldn't care less if the entire music industry went belly up worldwide, but it amazes me that people find it necessary to download illegal music. The entertainment industry LOVES music thieves. They love the free media coverage. They love the money handed to them by our legal system. They love the increased sales that P2P brought about. They love the fact that they FINALLY had a reason to impliment DRM. Most of the songs people steal are looped endlessly on local radio stations, the rest being available on iTunes for a buck or two. Why risk being sued by entertainment industry sleazebags when you can get almost the same level of enjoyment legally, and at little or no cost?

Re:Why do people still download illegal music?

[williambbertram]

Flaming aside, you seem to be missing the reality of things. Our government and legal system backs the music industry 100%. If you think that massive amounts of people violating the law will in any way CHANGE the law, then I invite you to look at the history of P2P music downloads. Massive amounts of people downloading illegal music did not change the law then, and it never will. I agree that music prices are insane, but illegally downloading music only makes the situation worse. So go ahead and download illegal music to your hearts content, but don't expect anyone to care it / when you get slapped with a ridiculous fine.

Re:If you want to understand their view

[Anonymous Coward]

Why are you trying to compare art and science to child porn and treasonous documents?

You've taken two points from the GP post and placed them so out of context as to make your whole post meaningless.

Way to further the discussion.

Don't forget the time stamps

[Brit_in_the_USA]

If one were going to do a wipe then complete reinstall then one must also remember the timestamps on the files.

In a purely theoretical sense one could set their BIOS clock back a good year or so, install there OS, move it forward a few days, install some apps, move forward a few weeks, install some more apps etc. Finally setting the bios clock back to the correct time.

I think the catch would be to not go online as cached web pages may have dates in them (like news articles).

Could anyone tell in this scenario that it was a recent install?

Re:Don't forget the time stamps

[Shadyman]

Unless, of course, you clean out your cache every once in a while, then timestamps would be more recent.

Re:This is why you keep a second boot drive and US

[nova20]

Better idea. When subpoenaed, take your computer and move out of the country until the statute of limitations is up. Then they can't touch you!

Using the same logic...

[skogs]

Using the same logic, one could sentence a man to prison/death for throwing away the gun used to commit the crime. Evidence destroyed/unavailable, you must be guilty.

No need to prove anything, just prove that they were paranoid.

I know this is a bit extreme, but really, applying the same rules to any other investigation would never be allowed.

Re:Stupid!

[KDR_11k]

I think he means before the serving.

Oops! Hard Drive's Empty!

[Greyfox]

They must have wiped it! The absence of evidence is not the evidence of absence! Any jackass can claim to be a "Computer Forensics Expert" and say damn near anything about a computer that they want to. The vast majority of users don't know enough about computers to be able to put up a reasonable defense. And even if they did, no judge is going to be able to follow the technical discussion. And planting evidence could be as easy as modifying a date stamp or installing a software package and putting someone else's name on it.

This is civil court...

[RingDev]

There is no guilt, there is liability. Based on a perponderance of the evidence, the court must find it likely that you are liable for the situation. OJ wasn't guilty of killing Nicole, but he was found liable for her death. In this case, the defendant wasn't guilty of CR violations, she was liable for CR violations.

-Rick

ummm... fuck you?

[Ender Ryan]

No, really. Don't be such an asshole. When she learned she was being sued by the RIAA, she was probably pretty desperate. $3,500 is a lot more than your average american has in the bank. I make very good money myself, and $3,500 would cripple me financially for at least a year.

It was a bad move for sure, but she probably couldn't afford to pay $3,500. Now they're possibly going to RUIN HER LIFE unless they are "lenient."

Most Are Missing the Reason for Default Judgement

[Fargazer]

I am seeing a lot of posts about how the person in question should have wiped her drive in a better way. The judge didn't sanction her through default judgement because she wiped her hard drive (regardless of how obviously or subtly she did it); the hard drive wiping is merely a manifestation of the real reason - interfering with his order to preserve her hard drive for evidence (and most likely honking off the judge in the process).

A judge in the U. S. judicial system is the closest thing to an absolute dictator Americans have; it's NOT a good idea to flaunt their instructions or orders. It wouldn't matter if she used DBaN, had electromagnets in the doors, or played games with the power leads; the point is that once the judge ordered the disk to be copied for evidentiary purposes, she was supposed to turn the hard disk over. She didn't just passively obstruct the order by failing to give up the hard disk, she willingly and deliberately performed actions to prevent the order from taking place. IANAL, but I stronly suspect the reason the judge went for the "nuclear option" was because of the willing and deliberate nature of her obstruction.

There may be a better way to set a judge totally against me than lack of respect for him and the entire judicial institution he represents, but darned if I can think of one offhand.

If she had used DBaN to wipe her disk at the very first contact by the RIAA, before this even went to court, I suspect she would not have been hit near as hard by the judge, if at all. Now, her best shot is probably to hope a higher court can rule the action was disproportionate, given the typically weak state of the RIAA's case when actually brought to trial. Unfortunantly, she's now got to overcome any judge's reluctance to give a break to someone who in their eyes has no respect for their position or institution.

Re:If you want to understand their view

[PiGuy]

Just like culture and human happiness advances when artistic works are freely enjoyed, spread, and built upon to create new works.

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.

A simple cost-effective solution

[DigiShaman]

Even if she did pirate songs from P2P, she can still get off the hook far cheaper then paying a fine from the RIAA. Just go out and purchase all the CDs and DVDs of the content you downloaded. Because you now own the physical media, she can claim fair-use. At this point, the argument would have to be made if she purchased the media before or after the downloading. Much harder to do.

Re:A simple cost-effective solution

[Legion303]

There's probably a reason you aren't a lawyer.

Re:A simple cost-effective solution

[DigiShaman]

Ya, because laywers fuck people over. I on the other hand, do not.

Re:A simple cost-effective solution

[Legion303]

"laywers fuck people over. I on the other hand, do not."

You would if you advised a client that fair use had fuck-all to do with P2P. On the bright side, you wouldn't be a lawyer for long.

Re:A simple cost-effective solution

[DigiShaman]

I'd be a better lawyer than you, that's for damn sure!

Point being, fair-use DOES come into play with P2P so long as you own the original media. For example, it's perfectly LEGAL to download an MP3 of a song (or album) from a P2P network as long as you actually own the original media.

Now you might prefer to rip your own disks to MP3s, but others find it too troublesome. For these people, it's easier to download the songs (obviously they're not entitled to remixes unless they own the original CD containing that too).

After doing a little research, I did find that it's illegal to copy a DVD even as a backup! Thus, you can't download a movie in any video format as it would have required it coming form the DVD source directly...assuming it's from DVD. Now, if the original source was from VHS, Film, etc, it's LEGAL as long as you own the original media. So my idea of going out and purchasing DVDs is worthless if the movies she/he downloaded originated from a DVD source.

Re:A simple cost-effective solution

[Legion303]

"fair-use DOES come into play with P2P so long as you own the original media."

Better check your definition of "P2P" there. *My* point being that owning the original media doesn't give you the right to distribute it worldwide, and any judge in the land would laugh you out of court for even thinking about the fair use doctrine.

woops, let me try again

[Ender Ryan]

I'm sorry. You only said it was stupid, which it certainly was. I was conflating your post and another in my mind when replying. So take that post, sans the inflammatory "fuck you" and "asshole" bits :)

Re:Your own analogy falls apart, copying is not th

[thesandtiger]

You're missing the point:

Downloading the songs/infringing copyright is what was wrong, not simply having them. Deleting them undoes having them, but it does not undo downloading them and infringing copyright.

The defendant was being sued for downloading the songs, not having them in her possession. The hard drive was simply more (but not the only) evidence that she had downloaded them. The downloading was the violation - the possession was just evidence.

I don't disagree that the system in this area is insane, but that doesn't prevent me from being able to see that the problem wasn't the possession (her having them was really just evidence) but the act of downloading them. Deleting them just wiped some evidence and violated other laws - it didn't go back in time and nullify her previous acts.

Little People

[wonkavader]

As horrifying as this is for her, I don't disagree with the judgement.

But this never happens to big companies who do this sort of thing ALL the time. Obfuscation, evidence tampering/hiding, and perjury: it's never dealt with severely, and a judement like this would be (practically) unheard of.

With a small number of exceptions, the civil legal system works, today, for the rich and the encorporated. He who has the most money wins.

Re:Stupid!

[denebian devil]

Serving and Court Order are not the same thing. His sentence was clear. The article refers to a court order, the poster refers to a court order. I can only assume he meant what he typed unless he says otherwise.

Bankruptcy?

[davidwr]

A severe judgement will force the defendant into bankruptcy.

Fortunately, even under the new bankruptcy laws, retirement assets and a certain amount of home equity is exempt.

Unless the defendant has substantial assets or a high-enough income to be ineligible for chapter 7, the record companies won't get a lot. The defendant will just have bad credit for the next 10 years.

Victimless Crimes

[phulegart]

Is driving faster than the posted speed limit a crime? Is it any less of a crime because "everybody does it"? Will mentioning that to the cop who pulled you over and gave you a ticket get you out of the ticket? Did you hurt someone when you parked too far from the curb and got a ticket? How about when you parked in front of that fire hydrant and got a ticket? THAT is a good one, especially considering that what the fire department would do to the car would be MUCH worse and more expensive if there was a fire and they needed that hydrant. How about that ticket for blowing through the red light/stop sign at that early morning hour when noone else was around?

would you steal a car? Would you steal a purse? Would you steal a cell phone? No, I wouldn't steal any of those. But if I could make an exact duplicate copy of any of them, and the original was still intact, then damn straight I would!

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.

Re:Victimless Crimes

[Bodysurf]

"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."

How could you make "exact copies" of passports, jewelry, etc.???

Re:Victimless Crimes

[voice_of_all_reason]

Victimless crimes are still crimes.

Sounds like that chinese propoganda poster "Civil disobedience is still disobedience." This is how we go about forcing change to unjust laws. Must I trot out the fact that helping slaves escape and women to vote was also once illegal?

And while your example of stock certificates and deeds is admittedly clever, those that duplicate them are doing so with the intent to deprive the owner of the original stock/property. Not so with piracy.

Re:Victimless Crimes

[phulegart]

You have never heard of "counterfeiting"? Shall we flip back through slashdot here, to the submitted articles about how new passports are going to include embedded digital data to make them harder to steal and copy? How about the technique of tagging unique and expensive jewelry with miniscule identifiers to attempt to make them impossible to copy AND make them easier to ideitify if stolen?

Don't start to think I'm proving your argument. Techniques like these to foil those who would attempt to copy passports and jewelry are still at the crawling (as opposed to walking or running) stage.

Forgers who specialize in creating copies of works of art will go to extremes to make them indistinguishable from the original. They will make their paints by hand, using the same ingredients and methods that the original artist used. They will use antique and/or aged canvases. They will create the equivalent of a "clean room", except that the closed environment will be one that attempts to mimic one the original painting was created in (industrial pollutant free, etc.). They will even paint on top of less valuable, but still original valid works by the same artist, if that artist had a habit of painting on top of previous works.

Are all of these "exact" copies? The word "exact" is actually irrelevant. It does not matter if you can make an Exact copy of a twenty dollar bill. If your copy is ALMOST perfect, but with only one flaw, you are guilty of counterfeitting. If your copy is EXACTLY perfect, you are still guilty of counterfeitting. A piece of Jewelry might actually be much easier to copy (without the laser ID tag), but that doesn't make it any less illegal to copy it to avoid paying for it.

If you want to copy music without breaking any laws, there is a way. Learn to play some musical instruments. THEN you are crafting the music and recording it yourself. You are performing it in private, you are not making any money off of the performance or song, and you have a copy of the song you wanted. That would be much closer to what you were implying about the "Exact" copy comment.

If you could drop a diamond ring into a machine and get exact dupicates, sure that would be akin to getting exact duplicates of digital music files. But a chisel to cut a stone with is a tool. A grinding wheel is a more advanced tool that can accomplish the same task faster and more efficiently. A hand operated printing press is a tool that can be used in counterfeitting. A mechanical laser printer is a more advanced tool that makes the same task much easier and more efficient. A tape recorder with a microphone is a tool that can be used to copy music. A computer that can just reproduce unlimited copies of a single file is just a more advanced tool accomplishing the same task. Just because the tool is more advanced, that doesn't make the crime any less of a crime.

Re:Victimless Crimes

[phulegart]

Must I trot out the fact that helping slaves escape and women to vote was also once illegal?

Yes, you must. Because until the laws were changed, these two things were illegal. Even if we can NOW look back and shake our heads at how wrong we were to keep slaves and keep women from voting, THEN these were punishable crimes. Why not trot out how at one time, saying that the world was round was punishable by death? Why not trot out how at one time saying that the Sun revolved around the Earth was once punishable by death? Because the same concept still holds true. We can look back now and say that those punishments were wrong. 20/20 hindsight is a wonderful thing.

If a law is wrong, there are three options. Obey the law, change the law, or move to where the law does not apply. Breaking the law and not getting caught does not make the action legal.

And while your example of stock certificates and deeds is admittedly clever, those that duplicate them are doing so with the intent to deprive the owner of the original stock/property. Not so with piracy.

Incorrect. Stealing the original stock certificate or deed is intending to deprive the owner of the original. Duplicating them is intending to provide others with objects of the same value as the original, while leaving the original alone. In the case of a property deed, it is true that there is only one piece of property. However, using that duplicate deed and "selling" the property would not result in the original owner losing the property. It would only result in the buyer being ripped off.

Artists create the song. Record companies spend the money on the studios and the recording, paying all the salaries of the people involved in the process. They pay for the production and initial distribution. Piracy for the purpose of selling, is making money off of the work done by the artists and record companies (or designers and software companies), without any of that money going back to the people who did the actual work.

Is scalping concert tickets legal then? How about selling "fake" concert t-shirts?

We may have to go through the process of breaking laws to attempt to get them changed, but we are still BREAKING LAWS to do so. If everyone jumps on the bandwagon, then sure, law makers might get with the program and repeal the offending laws. I don't see that happenning. Just because it is easy to copy music digitally, that doesn't make it right. All of this got started because MP3 compression algorythms were pirated originally. They were not released as open source. That Pandora's box was already opened.

If John Smith designed a revolutionary new home construction device, it does not matter if it costs a million dollars to duplicate, or if it can be duplicated for free. John Smith should still be able to decide if it should be freely available. If Mr. Smith decides that he should get paid by people who want one of his devices, then he should get paid. Until AFTER the laws have been changed, anyone who duplicates his work to avoid paying him is breaking the law and should face punishment.

Re:Victimless Crimes

[Bodysurf]

"If you could drop a diamond ring into a machine and get exact dupicates, sure that would be akin to getting exact duplicates of digital music files. But a chisel to cut a stone with is a tool. A grinding wheel is a more advanced tool that can accomplish the same task faster and more efficiently. A hand operated printing press is a tool that can be used in counterfeitting. A mechanical laser printer is a more advanced tool that makes the same task much easier and more efficient. A tape recorder with a microphone is a tool that can be used to copy music. A computer that can just reproduce unlimited copies of a single file is just a more advanced tool accomplishing the same task. Just because the tool is more advanced, that doesn't make the crime any less of a crime."

That sounds like the same doubletalk the British Government was giving the Colonies prior to the American Revolution.

Re:Victimless Crimes

[phulegart]

labelling it "doubletalk" sounds more like trying to justify criminal actions with obfiscation. Exactly how is what I said "doubletalk"? In what you quoted, I merely demonstrated how improvements in tools have made many different kinds of duplication much easier. Making the duplication easier does not make it more legal, if the duplication was illegal in the first place.

Re:Victimless Crimes

[jthill]

Victimless crimes are still crimes.

They're not crimes. They're illegal, but should not be because they're not crimes. There's a reason we have two words here. We have a word for trying to eliminate distinctions from the language. And we have a word for inability to recognize them.

Re:Victimless Crimes

[DavidTC]

How the fuck did counterfieting get in here?

You morons talking about it do realize that the crime in counterfeiting isn't duplicating the thing, right? It's legal to duplicate deeds and watches and blue jeans and paintings and pretty much everything. You want a fake Rolex? You want a hand-painted copy of the Mona Lisa? I can buy them, unlike the universe you apparently live in where it's magically illegal to buy copies of things that aren't under copyright.

The crimes is passing them off as originals. Some stuff just because of general trademark law. Some stuff that wouldn't be protected under trademark law has had specific laws passed because of their high value (like paintings and other works of art). But all of them can be exactly duplicated, although sometimes you have to alter a trademark or two, as long as they are presented as copies. There is almost nothing it is flatly illegal to duplicate.

Even stuff that it's actual illegal to duplicate at all, and the only example I can think of currency, is because of the incredibly high likelyhood that it was duplicated to pass off as the real thing, not because there's some sort of societial problem in letting people have things that look like currency, beyond them using it as currency. (There's a guy out there that hand-paints one side of fake Euros, sometimes modifying them with his picture, sometimes using the real picture, and trades them for good and services. He's getting away with it because he doesn't pretend they're real Euros, and other people couldn't use them anyway as they're one-sided.)

I.e., it's not anything to do with the right 'not to have things duplicated'. It's entirely fraud. Someone says it's X, when it's really a copy of X.

As absolutely no one here has even vaguly mentioned their intention to duplicate music CD, print up labels, and sell or give them away as if they were the real thing, 'counterfeiting' is entirely out of place in a copyright discussion. Just because you can commit fraud and copyright infringement at the same time doesn't make them relevant to each other.

The only place 'counterfeiting' is really relevant when discussing copyright is software, usually Windows, that comes with computers, that is an illegal copy. (And that is almost entirely fucking Microsoft's fault because they got OEMs to stop handing out Windows CDs, or replace them with 'restore' CDs. If when you got a computer you expected a holographic Windows CD to come with it, almost no one could get away with selling illegal copies with computers.)

All copies of downloaded software and music and movies and whatnot, or purchased in open air markets on CD-Rs, even ones with fancy custom labels, are pretty much known to be illegal, so 'fraud' and 'counterfeiting' don't enter into it. (And the downloaded ones are free anyway.)

And I can't even imagine how you think it's illegal to duplicate expensive jewelry. What kind of crazy-ass law would that be? You think it's illegal to see a nice piece of jewelry you like, be it on someone or in a jewelry store, take a picture of it, and take that picture to a jewelry and say 'Make me this'? You honestly believe that's illegal? What universe do you live in?

Re:Victimless Crimes

[Bodysurf]

"labelling it "doubletalk" sounds more like trying to justify criminal actions with obfiscation. Exactly how is what I said "doubletalk"? In what you quoted, I merely demonstrated how improvements in tools have made many different kinds of duplication much easier. Making the duplication easier does not make it more legal, if the duplication was illegal in the first place."

That's what I am talking about -- more doubletalk.

Let me make it real simple for you: The more easy -- actually, the less effort required -- to duplicate something, the less illegal it becomes.

We are closely approaching the point where things such as copying CDs, DVDs, etc. are almost NOT illegal (note: not legal, but not illegal either). I'm not talking about commercial copying -- I'm talking about personal use copying.

Hope that helps.

Re:Victimless Crimes

[phulegart]

you are absolutely right. How stupid was I? I mean, I didn't even realize that the Metallica songs I was downloading, were really done by Jim Bob's Garage Band. I mean, legal copies of the tunes would be ones that were paid for. SInce these weren't, but they are identical in every respect to the ones that were paid for... they must have been made by someone else.. My bad.

Re:Victimless Crimes

[DavidTC]

What kind of nonsense are you talking about? Seriously, that doesn't even make any sense, and it's not any sort of response to what I said.

I started on an actual reply, but realized all I was doing was repeating the exact same thing I'd just said. If you actually want to address the point I made that general 'counterfeiting', aka, copying things, isn't illegal, I'll respond. Like I said, it's always the fraud that's illegal.

Now, if you go to iTunes and purchase a Metallica song and it's actually a sound-alike band covering them that iTunes is (legally) selling because it's cheaper, yeah, you can call that 'counterfeiting' or 'forgery' if you want.(1)

But that doesn't really have a lot to do with copyright law.

1) It's legally just fraud, by fakery, because both 'counterfeiting' and 'forgery' are both limited to specific types of fakes being misrepresented as the original, but whatever, I don't care enough to worry about that misnaming.

Re:Victimless Crimes

[Pseudonym]

Why not trot out how at one time, saying that the world was round was punishable by death?

When? And where?

A much better method.

[LWATCDR]

While I do not condone breaking copy right laws I am driven to solve problems even if they are hyothetical in nature.

Seems to me that a much more secure way would be to use an USB external hard drive with an NTFS partition and a UBB flash drive with a copy of Linux on it.
Boot from the USB pen drive when you want to use P2P and you would still have all your data available on the other drive when you boot from you main drive.
The main drive in your computer would never have any evidence of downloaded files or of p2p software.
The external drive could be completely and securely wiped and then a back up image of your main drive stored on it. I mean that is what external drives are for. Or it could just be lost. A properly configured NSLU-2 would also work well for this. When they ask for your computer just give them your computer. The NSLU isn't a computer it is NAS device.
Of course the best thing to do is stay on the good side of the law until it is fixed.

Very poor logic here...

[BobBoring]

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.

Re:Very poor logic here...

[voice_of_all_reason]

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.

Think seriously about what actions you are defending.

Re:Very poor logic here...

[Dhalka226]

I can't believe you are the only one who replied to the GP with, you know, reality. Thanks for saving me the time of doing it myself. (Though you probably should have left off that last paragraph--true or not, it distracts from your spot-on points.)

Re:Very poor logic here...

[DavidTC]

We stopped having an obligation to follow the law the moment they made it illegal to tell juries, if they do not agree with the law, about their right to find people innocent even if they had clearly broken the law.

Or, rather, we've always had the option to break the law, and turn ourselves in, and have that law be judged by society whether or not it was just. When the legal system stops lying to juries, I'll turn myself in and see if society honestly thinks copying music is worth that much punishment.

I'm dead certain it doesn't.

Re:Very poor logic here...

[Pseudonym]

You are legally and morally obligated to obey the law or to change it.

One of the ways that is morally acceptible to change an immoral law is to disobey it. However, it is immoral to do this in private. Civil disobedience must be done in the open, and the disobedient citizen should be prepared to wear any legal consequences.

There are, in the world, laws that are so immoral that it's worth spending time in jail to have them overthrown.

no, she's not lucky. jail would be better

[Ender Ryan]

The only point I personally care about is the "punishment" she's likely to receive in this case. She would be LUCKY to do jail time in this case, instead of being financially ruined FOR LIFE quite possibly.

Tyranny of the majority

[baomike]

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.

Re:Tyranny of the majority

[voice_of_all_reason]

Then maybe we shouldn't be a democracy anymore. At the very least, let's stop bullshitting ourselves.

Re:Tyranny of the majority

[aminorex]

I don't recall any popular vote in favor of interning people of Japanese ancestry.

Given the propensity of dictatorships like the U.S. has been since 1862 to commit genocide over and over again with no redress or repercussions, I'll take my chances with democracy.

Re:Tyranny of the majority

[Big_Al_B]

Then maybe we shouldn't be a democracy anymore.

Me? I would have thought the Voice of All Reason had at least a high school quality civics education. I stand corrected.

Settle down and read this:
http://www.wallbuilders.com/resources/search/detai l.php?ResourceID=4

Re:But what if this happened to me....!!

[freakmn]

Copy + Paste.

I use the same method at home too.

[BobBoring]

Five pound drilling hammer and a center punch.

Just drive the punch through the top of the drive and out the bottom of the controller and you're done.

Re:child porn and osama bin laden OH MY

[Kombat]

Nice ad hominem examples there.

Actually, they were, at best, red herrings. Don't use big words if you don't know what they mean. Logical fallacies are pretty basic material. The fundamentals are available on Wikipedia.

The poster was claiming no one can "own" art because it's just numbers, and you can't own a number. I responded by illustrating some widely-accepted examples of where "numbers" can indeed be treated very seriously, given particular numbers' unique meaning and traits (such as, happening to be the exact value that matches a Metallica MP3, or a Word document containing state secrets).

Re:Most Are Missing the Reason for Default Judgeme

[Quila]

it's NOT a good idea to flaunt their instructions or orders

Unless you're SCO, which has somehow managed to survive three years of it.

Re:Stupid!

[a_nonamiss]

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?

I hope you don't attempt to...

[wfolta]

... make your living creating or selling things that can be cloned. You'll find little satisfaction that your "original copy" is unaffected by those not-stealing your works.

Degaussing is Overrated!

[Petersko]

Unless you take the shielding off of your drive, the data would probably be just fine. That's why I recommend pissing on the drive instead. Sure, the data remains intact, but who'll touch it?

Re:Stupid!

[thePowerOfGrayskull]

If you have to wonder, you're a lot more optimistic than I am.

Re:If you want to understand their view

[jdbear]

First, let me say that I'm not against the concept of copyrights. That having been said, the artists are not the ones who ownt the copyrights, it's the publishers who do that. Also, art existed before copyrights. Since art existed first, then copyrights came later, then how would arts disappear without copyrights? There seems to be a flaw in your logic, somewhere.

Copyrights exists to encourage artists by assisting them in making a living from their works. This is not a bad thing, but it can be abused. I believe that in order for copyrights to work the way they were intended, they have to be limited to a relatively short time period (say, the original 7 years,) and apply only to the Creator of the work, not some huge corporation that buys up all the rights to all the art they can, then charge everyone to have access to that work.

Just my opinion.

What if she had used encryption/

[Froeschle]

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.

Re:What if she had used encryption/

[bhadreshl]

You could also conveniantly "forget" your passphrase.

Re:If you want to understand their view

[Anonymous Coward]

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?

If I need to hide something...

[CYDVicious]

I keep a 20gb drive setup with WinME and configured to be 100% legit and free of any convicting software that I just plug in and remove the other drives. WinMe has so many holes in it, that the court automagically rules in favor of trojans and backdoor usage. ~CYD

Holy crap.

[nukeade]

By the way, the discussion was about ownership in terms of copyright, not ownership in terms of posession.

~Ben

What's the problem here?

[nonlnear]

She was incredibly stupid to wipe the whole drive after receiving a court order to surrender it. If she had a clue, she would have wiped the relevant files, free space, and the pertinent logs.

The judge was actually doing her a favor. If the case were to remain open with her having disposed of key evidence in direct violation of a court order, there could be an obstruction/felony contempt charge waiting for her. By closing the case without the evidence, she avoids a worse fate. This way there might not be criminal charges.

I want the RIAA to lose as much as the next guy, but poo-pooing a judge for exercising good sense doesn't really help the cause.

Re:sick of it

[Chrontius]

Because standing near the death throes of a giant hurts.

I forsee two things happening eventually, if they keep this up long enough - suicides, then bombings. Both occur when people have nothing left to lose. These lawsuits are scaled such that they ensure that the unlucky SOB has nothing left afterwords. There are large numbers of people targeted by them. Eventually, they'll nail someone who isn't quite stable.

It makes me sad, but I really believe this is true.

Stupid RIAA meets Stupid Woman

[paladinwannabe2]

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.

Destroying a hard drive

[chortick]

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.

Re:Destroying a hard drive

[outsider007]

Actually it was a bunch of hackers outside in a truck that EMP'd it.

Re:Destroying a hard drive

[DavidTC]

Why the fuck would you want to do that? That just renders the electronics unusable without touching the data!

Re:Destroying a hard drive

[WhiteDragon]

In Cryptonomicon, the server was nuked by hackers across the street in a van, with a big EMP cannon. However, as others have pointed out (and was complained about by the owner of the computer in the story), an EMP will fry the electronics without deleting the data. In the story, after the computer was fried by EMP, magnetic loops in the door of the building wiped the drives as the computer was being removed. In reality, no external magnetic or electric field will really affect the data on the platters much, because it takes something like a magnet strong enough to twist the hard drive case before the bits will all be erased. Remember, magnetic fields decrease with the cube of distance, and read/write heads are *very* close to the platter. I think it takes about 12-15 Tesla (an EXTREMELEY powerful electromagnet) to wipe a drive at a distance.

Re:Destroying a hard drive

[chortick]

I was certain that the story included magnets in the cabinet destroying the drives, not the EMP across the road. My choice of 'EMP' as a description was perhaps unfortunate. I assumed that inverse-square (I see you wrote cube... is it the surface area or volume of the physically analagous sphere that determines field intensity?) would make a simple magnet impractical, but what about some sort of resonant effect from multiple magnets? How about induction? How hot would a drive need to get to clear the data?

Re:sick of it

[smellsofbikes]

>Do you honestly think that if you take away the incentives to *get rich and famous* that there will be better movies and albums?

Piffle.
Sophocles wrote some truly amazing plays. Michelangelo made some truly gorgeous sculptures. 2000 years apart, and neither had copyright protection. Didn't stop them making art that makes anything produced in the last 400 years of copyright protection look pretty lame. For all of recorded history and plenty of unrecorded history -- like cave art in France -- people have been making beautiful artwork. You're claiming that suddenly, after 20,000 years of making beautiful art, people are going to stop, just because other people can copy them?
Ridiculous.
Now if you're claiming that a small group of people who stand to make millions of dollars releasing crappy pop tunes are going to stop if everyone can copy their work, well, then you're probably right, and the faster that happens, the better.
However, claiming that without copyright protection people will stop creating art is like claiming that if you charge people for air they'll stop breathing.

UPS it

[sgt scrub]

She should have sent it UPS overnight. Everytime I send something overnight it gets smashed, bent, stabbed, or soaked.

Re:Don't destroy the evidence, let them do it for

[bLindmOnkey]

great idea! considering that it is also possible to read the platters of an unmangled hard drive even with a fried board. Then again, This could require professional data recovery where it costs $1 for every 1mb recovered.

Just take the computer to...

[Blackhood]

...Bestbuy. The Geek Squad will rip out your hard drive, tell you it was bad, pocket it, and make you pay for a new one. Plus labor.

Seems like a cheaper alternative than paying the **AA.

Share Ratio is usually what? 10? $750-$30k is nuts

[EMIce]

Even for those with a fast cable connection, what is the share ratio on a typical p2p download? I practically never exceed a ratio of 10 and I get around 1 megabit for upload speeds, which is probably more than most cable/dsl customers.

Now if someone is downloading pop music the ratio achieved will typically always be much, much lower, because well, it's popular stuff and therefore prone to having an assload of seeders. These copyright laws were originally aimed at bulk pirates turning a large profit, like the guy selling CDs on Canal St. in NYC Chinatown.

One has to consider what the retail value is of the goods a typical person on the receiving end of an RIAA lawsuit has distributed/shared? At $1 per song it might amount to $10, but more likely half that or less. A greater than 10 share ratio pretty unrealistic in 99% of cases.

What this really is, is cruel and unusual punishment being used to set an example of some poor schmucks to enrich a few people who were already rich enough to manipulate the leviathan to tap the rest of our's hard earned money in the first place. It's true we are not forced to buy their music, but the punishment just doesn't fit the crime.

All this is aside from the fact that the relevance of copyright, which was supposed to encourage access to works, is undergoing challenges in the information age. When copyright was formed nobody claimed the incentive to create works would be greatly diminished without it, just that fewer works would be hoarded by a select few. Well, it's become a lot harder to hoard information and congress needs to wake up and realize it is time for a policy change.

Re:Stupid!

[thparker]

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?

OK, it's Slashdot, so obviously I'm going to answer even though IANAL. I have, however, had work product subpoenaed in cases involving my clients in the past. There is a lot of misinformation in this thread, and confusion about being served, receiving a "court order" and being subpoenaed. Service is a generic term that applies to the process of delivering court documents to a party in the action. It could be the lawsuit itself, it could be a subpoena to appear in court, or it could be something related to document production.

The key here is the subpoena or an anticipated subpoena. A subpoena for document production will specify exactly what you are being asked to provide. Once you've received the subpoena, you are clearly obligated not to destroy any of the requested documents if you have them. You haven't been subpoenaed, so you're clear in this respect. There is a grey area where you aren't permitted to destroy documents when you know there's an investigation. This was a key element in the DoJ's lawsuit against Arthur Andersen for shredding Enron documents -- that they knew that an investigation was being performed and that their responsibility to not destroy documents existed prior to their receipt of the subpoena.

(In case you don't know the whole story -- Arthur Andersen started shredding documents when informed by Enron that the SEC had initiated an investigation and stopped shredding documents the second they received a subpoena. They were convicted of obstruction charges. Those charges were overturned by the Supreme Court on the basis of improper jury instructions. The Supreme Court left open the question of when a company has a duty not to destroy documents. It is safe to say that this obligation pre-dates the issuance of a subpoena in some cases.)

There is nothing illegal about routinely shredding business documents you are no longer using. There is nothing wrong with some guy deleting files from his computer that he is no longer using. The case in this article is about someone maliciously destroying files they knew were relevent to a court proceeding with the intent of obstructing their prosecution. It's a pretty straightforward set of facts and not at all similar to what you've done.

Re:Must have been blonde!

[Jerry Smith]

3. buy a new drive and format it

That's all well and good, except for the fact that most hard drives purchaced these days have a mfg date and default warranty experation date. You could get lucky and find a drive old enough to fool the court, but not very likely.

Boot from CD and randomise empty space on suspect drive, times 32. Might take a few days, but hey... :c)

Just to add...

[Kythe]

...I agree with you that copyright law, as it stands, prohibits copying without the author's permission (except for certain instances), regardless of whether money is involved.

However, much of recent law, designed to implement draconian criminal punishments for those who copy without making money off the action, is based not on fundamental, original notions of copyright, but new ideas about intellectual property pushed by those who stand to profit off of those changes.

Re:Impossible not to commit a crime

[lardbottom]

Careful! 1 step further and you'll be in the Paranoia universe.

Truth is, that the government owns your children (they are a US commodity) and it's illegal not to put goop in their eyes the moment they are born. "Hello! Nice to meet you (splortch) OH SORRY!! :) It's for some disease which we know you don't have but someone arbitrarily decided to put in place because it used to be bad. Oh, and bad news - in the next 4 years we're going to stick you with lots of needles filled with vile substances that have only a tiny amount of quality control placed on them. and THEN you'll have to pay TAXES." (that's when the baby starts really crying)

There's thousands of moral and ethical problems with the law. People refuse to see it as a guideline to life. I could mention religious books which fit this bill also, but that would be trolling, now, wouldn't it ;) Enforcement of the law is an elective process. It is still illegal to be caught driving a cab without a bale of hay in England, I think. Don't get me started on Patent law, OMG.

BTW - I agree with you.

I'm not defending anyone's actions...

[BobBoring]

I'm attacking his logic.

BTW -1 for your reading comprehension.

What you quoted me as saying is a matter of fact not an opinion of the morality or immorality. It is a fact contempt of court gets you in trouble with judges.

For example this case from SFGate on a case of ringing cell phones in an Indiana courtroom.

Link to SF gate article

In Indiana Judges can punish you on a whim with 40 hours of community service for not turning off your cell phone in their courtroom. In Texas judges can lock up up indefinitely for any slight they consider contempt without appeal. Is that moral or immoral? I don't care. Is it legal under the current laws? Why yes it is.

Re:I'm not defending anyone's actions...

[aminorex]

And it is contemptible behaviour that elicits contempt for the courts.

She may have had good reason to

[ac7xc]

If she had something incriminating on her HD that could have put her in prison she may have had a good reason to destory the data on it.

Re:child porn and osama bin laden OH MY

[Ender Ryan]

Actually, they were, at best, red herrings. Don't use big words if you don't know what they mean. Logical fallacies are pretty basic material. The fundamentals are available on Wikipedia.

You're right, it was an appeal to emotion, and red herring, which often overlaps with ad hominem, but not really in this case. Don't be such a douchebag =P

Note that I don't really disagree with you, I only took issue with your silly argument, invoking child porn and Osama bin Laden(in a single post!) and attempting to conflate two different concepts. Ownership and significance, or "seriousness."

Whether one can own a number is strictly a value judgement, one in which I agree with your point of view, to an extent. But child porn and Osama just don't come into it.

Magnet?

[MasaMuneCyrus]

Couldn't one just use a large magnetic (from unitednuclear, or some other such company), and shove it up against the harddrive? Then you could just say that the HDD stopped functioning, and they likely couldn't pin it on you, without reasonable doubt that you just enjoy magnets (who DOESN'T enjoy large magnets?)...?

Re:If you want to understand their view

[Colde]

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?

Re:Don't destroy the evidence, let them do it for

[gardyloo]

Whooosh!

Wait, I'm confused...

[fudgefactor7]

Ok, let me get this straight in my own mind--and if I'm off here someone kindly correct me--but she may or may not have downloaded some songs, fine; but then she gets hit by the RIAA saying "pirate! gimme yer drive, lolzors" but the court didn't come get her drive, they asked/subpoenaed it--making it her responsibility to hand it over. Right?
 
Why didn't the court come and get the drive themselves? That seems to be stupid. Plus, we are, under the Fifth Amendment, permitted to not testify against ourselves; and it could be argued that providing evidence not previously siezed under court order might violate her Fifth Amendment right to self incrimination.
 
I see this going nowhere for the RIAA and the court on appeal (and, oh, yes, there will be an appeal--you can count on that.) Plus, she could say she removed only private records, such as bank records or financial transaction records not under subpoena, and the "wiping" was a result of a previously installed--but long forgotten--program that overwrites the blank space on a drive. Or perhaps she (or soemone else) ran the Windows XP commandline of "cipher /w:c:" and it did the job.
 
Regardless...why didn't the court/RIAA physically retrieve the drive themselves? WTF?

The easiest way

[phorm]

Stick in a drive from another machine that has no shared files on it. The drive shows indication of use, but no unusual deletions etc.

An even easier solution.

[rolfwind]

Swap hard drives with another computer.

Re:An even easier solution.

[Reziac]

And I was thinking similarly... keep your nefarious activities confined to a removeable HD, that the rest of the system will not miss if it is removed and shoveled into a hole in the back yard, or pitched into the river.

Capitalism and Copyrights

[LucidWanderer]

How is it that a system which provides for nearly unlimited wealth for a single entity is persisted by a government whose foundation is freedom for all? I say nearly unlimited, in that as soon as the lawyers were able to put words to a "potential" for wealth, companies gained domain over the immaterial world of a possible future... but in the present, and through very real monetary sanctions. The purpose of those sanctions are not to protect the songwriters, or even the consumers -- but purely the economic system itself.

I do not agree with the rigorous and nearly always profit-motivated process by which copyright infringements and patents are prosecuted. A better system, perhaps, would involve limited rights -- providing provisions for initial sales, creation of hard copies of certain quality, and of verifiably value-creating processes... To monopolize the information itself, the songs, the government effectively suffocates innovation and creative freedom.

IP was as much of a bust to humanity as it was a boon to business. They should learn a thing or two from the Slashdot system, and apply it to IP. The real property is attention and culture-shares, not data or copying.

Re:If you want to understand their view

[QCompson]

Dude, everyone knows the best way to win an argument in the 21st century is to drag in terrorism and child porn.

Example:

Debater A: Drilling in the Arctic Wildlife Refuge is only a temporary band-aid for America's growing energy problem. It will do nothing to stop our dependence on foreign oil.

Debater B: If you are so against drilling in the Arctic for oil, please explain why you want the terrorists to have all our extra oil money so that they can continue to murder innocent civilians. In addition, what about child porn? 5 out of every 4 Eskimo children have been sexually abused due to the thriving Alaskan child porn trade, which exists because Alaskans can't make enough money off of oil revenues. Tell me sir, why do you support terrorism and child porn?

Swap HDD's

[4D6963]

In her place, I would have swapped my hard disk with one from another of my computers that doesn't not contain any copyrighted material. There's no way in the world they could find that the copyrighted material they're looking for has been deleted, and it looks right if you have an OS on it with quite some stuff done on it, like, not a fresh and clean install of Ubuntu.

The other good thing is that you don't have to wipe your original hard drive :-P

Re:Stupid? or MSFT?

[ripcrd]

How do they know it wasn't just a failure of Winders XP? It happens to people I know all the time. Poof, it's all gone. Time to reboot and reload or restore. Nothing strange to see here.

Re:Admission of guilt, or taking the 5th?

[shark72]

On behalf of all Americans, I hereby apologize to the world for our collective utter ignorance of our own laws.

"Why isn't action protected by the 5th amendment??"

This is what the fifth amendment of our constitution states (boldface mine; as our founding fathers did not have a "B" button on their 18th century word processors):

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

It's Godwin Time!

[spun]

You have to obey the law whether you like it or not.
So you're saying that if you had lived in Nazi Germany, you would have ratted on Anne Frank? Sometimes you have to disobey an unjust law.

Re:sick of it

[vga_init]

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?

Yes, absolutely. It's a fatal mistake to assume that everything needs incentives like that in order to work. Music is natural for humans, and being a good musician has rewards far greater than wealth and fame; in fact, there once was a time when being a musician was not a very lucrative business, but you can't say that the art suffered at all. As a matter of fact, there are billions of people that adore older styles of music; most of the artists weren't that wealthy at all.

Were you not paying attention during the last 50 years as one centrally-managed economy after another failed?

What does that have to do with music and how much musicians get paid? You can't just make some sort of vague blanket statement about communism and expect us to learn anything except for the glaringly obvious fact that you're a United States citizen. It's like saying that because Adolf Hitler was a vegetarian, you must denounce vegetarianism as a doomed practice because "where were you when nazism 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? ... Incentive breeds competition, which leads to dramatic product improvements and innovations. If you take away the incentive, everything stagnates.

Are we even talking about music anymore? There are some things which benefit from competition--art is not one of them. In fact, it hardly seems possible for art to be competitive--it's just art. When you place it in a competitive market, the larger effect seems to damage the art itself; just look at the entire broken music industry and how it's breaking our legal system. Which of us who loves music honestly would want to be a musician in this day in age? People are hauled into court for downloading and sharing music! I think it's high time we rethink things thoroughly, and you're not contributing to this process by crying wolf every time anything remotely remindes you of communism.

Dumb RIAA

[MrEcho.net]

You would have thought they would have ceased her harddrive when served her papers.
Its called data integrity. If your going to do a case on someone your going to want proof of data on the harddrive.
If you wait a few months or a year down the road and you expect the data to still be there, your nuts.
What IF she did a format or wipe, or its not even the same harddrive BEFORE she was served her court papers?
That would pretty much make this case void, no real proof that she ever had these files on her computer.

All these cases are very iffy, so little proof that these people truly had these files on their systems.
They think a program listing files from an dynamic IP is a copyright violation, they need to get their heads checked.

To all pirates - How to ....

[future assassin]

When building a new pirate computer make sure you have two hd's installed with a freash os at the same time. One you use as a stored away "backup" incase your current drive fails When RIAA knowck on the door just install and show them the untouched drive and tell them you never touched the computer since the install date.

Re:Stupid!

[BalanceOfJudgement]

Thank you for that information. I regularly Erase my harddrive after deleting financial documents, and once in awhile just to erase web surfing cached stuff. I ALSO erase stuff I have reason to believe is a copyright violation, so if someone were to do a forensic examination of my harddrive, they'd see lots of sectors that have obviously been erased (random HDD noise is just noise; erased sectors have very clean sets of 1's and 0's).

When I saw this article, I wondered what the burden of proof would be - is the mere existence of Erasure software proof of wrongdoing? Obviously not, but it would SEEM to be given the standard of judgement used by the judge in this case.

So your post is helpful. If I had mod points I'd mod you 'informative.'

Re:Impossible not to commit a crime

[cptgrudge]

But how many of those crimes are of the "must be witnessed by a police officer" type or the "pay the fine and go" type? What things are slashdotters doing that they'd actually have to serve jail time?

I suppose we could say copyright infringement by means of illegal downloads, since there is a criminal component to that. Those "unenforced laws" that are still on the books? Speeding? I think they'll probably revoke your license before you get to the serving jail time for repeated offenses, unless you keep driving without a license. I did know a guy that indirectly went to jail for speeding, but that was only because the exasperated judge didn't know what else to do after dozens of speeding tickets, multiple driving without a license, and multiple driving without insurance.

Most of the low level crimes that we are probably guilty of would result in jail time after many times getting caught. Slashdotters aren't so stupid as to not learn their lesson the first time, are they?

Easy solution?

[HyperJ]

Why not just go and buy the original CD's? Surely if you own the media already then you would legally be allowed to download it?

Court order

[AgentFade2Black]

If you get a court order with the wrong date somewhere in the order (in the future), can't you say that the order makes no sense, because the crime couldn't have taken place yet?
From the order: Data was first deleted in December 2006.

Date has not yet occured, therefore, one could argue that the order is irrelevant.
Like most here, IANAL.

Maybe she did?

[jgoemat]

Maybe she wiped a hard drive from a different computer, or just bought an unformatted one and sent it. How would the court know? Isn't giving over your hard drive so that the entire contents can be copied a little unusual though? On a person's private computer they could have many personal unrelated things. In the SCO vs. IBM case they didn't get unfettered access to IBM's hardware. I couldn't be without my hard drive long enough to send it in to have copied as I work from home. I could get another computer setup maybe, but that is a huge pain and would cost me money. What about private letters and pictures that have nothing to do with file sharing? I don't want some RIAA people looking at naked pictures of my wife, or going through my private email for the last 7 years. That would be as bad as giving them a blank search warrant and letting them tear up my house.

Re:Maybe she did?

[4D6963]

Maybe she did?

No she didn't, RTFA :-)

Maybe she wiped a hard drive from a different computer

wiped? from a different computer? Is it me or does it neither makes sense nor have anything to do with what I said before? Or did you mean swapped instead of wiped? That'd make more sense. Anyways, I don't see what your concerns about privacy or your needs have to do with it ;-) remember, you're not doing anything wrong, so you have nothing to hide, mostly not the naked pictures of your wife

Re:Maybe she did?

[jgoemat]

No she didn't, RTFA :-)

wiped? from a different computer? Is it me or does it neither makes sense nor have anything to do with what I said before? Or did you mean swapped instead of wiped?

How do you (or they) know that? All the article says is that she wiped her hard drive before giving it to them. So we know two things:

1. She gave them a hard drive
2. They determined the hard drive she gave them was wiped

I mean 'wiped' and not 'swapped' because it doesn't say she gave them the entire computer, just the hard drive. So she could still be using her old computer and have just sent them a different hard drive (from a different computer or a new one purchased form a store).

Number 2 is a little fuzzy. If she wiped the entire hard drive, there would be absolutely no way to tell what was on it before. Wiping using certain tools could be detected because they leave patterns on the hard drive. Some methods write over all the data on the drive several times using different patterns of data each time. This helps because even overwriting data with 0s is not entirely secure. The magnetic head on the hard drive doesn't move in exactly the same place every time and some data may be missed, or even though the hard drive will read 0s, more sensitive equipment may be able to determine what the data was before.

Forensic hard drive examination is used a lot, they have specialized equipment that reads magnetic patterns the hard drive platters directly when removed from the hard drive. These magnetic patterns are much more detailed than what a hard drive head reads from the platter. Once they have this detailed information, sophisticated algorithms can many times detect what the data was prior to being overwritten.

Think of it this way, imagine you have a phonographic record, and the elevation is what is used to represent data instead of magnetism. Let's say that something flat with the disc represents '0' and a peak at 1mm represents a '1'. The record will NOT have perfectly level '0's and '1's. The hard drive head will detect anything above say 0.5mm as a '1'. Let's say you have the following elevations: 0.9, 0.2, 0.8, 0.9, representing 1011. If this is overwritten with '0's, the actual elevations may be changed to 0.3, 0.1, 0.3, 0.4. Using the algorithms (which can include statistical calculations and making combinations until the checksum for the sector is valid), they can determine that since the 1rst, 3rd, and 4th bits are higher values than the second bit, the pattern could be 1011. If the 4th bit is a parity bit, that would match up and be a possible value prior to wiping.

Since all I know from the article is that she gave them "a hard drive", she may not have even removed it from her computer. She could have taken a hard drive from a different computer, or purchased one from CompUSA. Then she could have "wiped" it using wiping tools to leave the patterns they detected, and sent it to them. From what I read, she could still be using her original hard drive, with all her downloaded music. Let's she didn't just 'send' them the hard drive, they actually took it from her computer. They still noticed it had been 'wiped'. She could have removed her hard drive prior to delivering the computer to them and put a different hard drive in, then wiped that hard drive. So her original hard drive could still be in her possession.

Re:Maybe she did?

[4D6963]

If she wiped the entire hard drive, there would be absolutely no way to tell what was on it before

Oh yes there is. That's actually quite a concern for intelligence agencies. There are stories about it sometimes on Slashdot, like this one or this one. Anyways in that case what you need to read the data is a gauss meter iirc.

Guilty with No Evidence

[Nom du Keyboard]

Here's another case where you're guilty because of the lack of evidence. Clearly the RIAA did not have conclusive proof before they filed the case, could not get conclusive proof from the defendant, and won anyway! This has just got to get stopped at some point.

Re:Impossible not to commit a crime

[rifter]

It's for some disease which we know you don't have but someone arbitrarily decided to put in place because it used to be bad.

Yes, asshole, it's called chlamydia, and if they don't put that goop in the baby's eyes it could go blind because of it. It's certainly not eradicated and the doctor certainly doesn't necessarily know for sure that there is no infection present.

As for the other injections the only reason you can afford to be so flippant about them is the fact we all have them and those diseases are not causing regular deadly epidemics -- specifically because we do have them. I think a little poke in the arm is a small price to pay to no longer have to worry about things like diptheria running rampant. Yes, they are legally mandated. Do you know why? Because people like you wouldn't do it otherwise, and the rest of us don't want to deal with piles of dead bodies because of your ignorance/laziness/stupidity/conspiracy theory.

Re:If you want to understand their view

[Mortamer2k]

IANAL, but freedom of speech does not apply to speech that incites violence, and if it can be proven that the number did just that, their would be no problem charging "Osama." However, theirs nothing about freedom of speech that excludes numbers that transform into audio people might enjoy. I think it's a good argument but public policy and the ignorance of the potential jurors would probably say otherwise.

Re:sick of it

[LaughingCoder]

What does that have to do with music and how much musicians get paid?

I was reacting to the OP's suggestion that we should cap how much musicians get paid. You disagreed vehemtly with my argument, and raised many valid and excellent points. So now I have to ask, do you then agree with the assertion of the OP (the one I quoted and disagreed with)? Specifically:

Put actors and actresses and music artists at a cap of 150k

Do you really think that is a good idea to cap how much money artists can make? Will that solve anything? If so, how will that make movies and music better? By your assertion true musicians do not care about money. So how exactly does a salary cap help to improve the arts? Answer: It doesn't. It's just another simple-minded approach borne from jealousy and a distorted sense of entitlement. What the OP really meant was ... I should get whatever music and movies and games I want for free because, well, because I want them. And by (over-)paying those greedy artists and corporations, I am prevented from getting what I want for free.

It never ceases to amaze me how quickly folks suggest that things would be much better if only other people's salaries were capped (or confiscated/taxed and re-distributed). It always seems like a good idea, that is until someone comes along and caps YOUR salary. Then it's UNFAIR!

That's overly complicated

[nasor]

Wouldn't it be much easier to just do all your illegal stuff on the second drive, then pretend that it never existed if the RIAA asks for evidence? There wouldn't be any complicated copying/re-dating of files, etc.

Re:If you want to understand their view

[Hatta]

Can I have your bank account number, pin, and social security number? since you have no right to own them

Here's a consistant solution that will work for bank account numbers, and for listenable/viewable numbers. If you don't want it shared, don't share it. Once you tell it to someone else, it stops being a secret. If you're publishing CDs full of your bank account numbers and selling them I won't have any sympathy for you when they're copied. Same thing with musical numbers.

Re:sick of it

[Grishnakh]

There's a difference between art and technological innovation, and you seem to be confusing the two.

Looking at art in the last 50 years, I don't see much art that's worth anything. There was some good music back in the 70s-80s, but that's about it. Art, as in the kind painted on canvas, has all been crap for the last century or so. You want good art? Look at the masters like van Gogh, da Vinci, Renoir, etc. They all lived long before the last 50 years, and their art is what's in museums and private collections, valued at millions. Show me anything made in the last 50 years that approaches that.

"Incentive breeds competition..."
Huh? Since when did artists compete with each other? Here again, you're talking about free market economies promoting technological innovation and somehow attempting to apply this to art as well.

"If you take away the incentive, everything stagnates."
Sorry, but no. Things stagnate when innovation or art is stifled in some way, either because people are too busy struggling to survive to bother with creating new things, because they stopped caring, or some other reason (too afraid of lawsuits?). People have been creating art since they lived in caves; they didn't need to get paid to do it. Of course, it helps the good artists when they're paid, but when too much money is involved, a lot of bad artists get involved just to make a buck (e.g. Britney Spears).

Fit the crime?

[JD-1027]

...what we're talking about is potentially ruining someone's life.

But think of the damage she caused. She potentially took a few dollars from the music industry. Don't you get that? Of course we should ruin her life.

Re:Stupid!

[Iron Condor]

There is nothing illegal about routinely shredding business documents you are no longer using. There is nothing wrong with some guy deleting files from his computer that he is no longer using. The case in this article is about someone maliciously destroying files they knew were relevent to a court proceeding with the intent of obstructing their prosecution. It's a pretty straightforward set of facts and not at all similar to what you've done.

But this presumes a certain order of things. Here I am, having seen the light about my copyright-violating ways, deleted everything, even ran a disk-cleaner to make sure there's no trace of this evil, filthy pirated stuff on my disk -- and as I'm watching it do its job, the doorbell rings and it's the mail guy and he hands me an envelope and I sign for it and open it and it turns out to be a subpoena regarding my P2P activities.

Who exactly determines when I erased the contents of my HDD? The article makes it seem as if they 'just kinda knew' that the deletion happened as a response to being served, but how would they know that? Who carries the burden of proof here? "Yes, I had BearShare installed once because I was curious what the hubbub was all about but then I deleted it again and all the deliberately erased space on my HDD is just where I tried to make sure my tax-data was securely erased" (or whatever). How would anybody know?

This article sure makes it seem as if the mere suspicion that someone might have deliberately destroyed evidence got them defaulted.

wiping hard drive

[gtchen66]

I don't get it. I regularly re-image my hard drive. I don't do this to remove evidence of activity, but because Mirosoft Windows seems to get cluttered with all sort of junk and crap the longer it runs. I even keep a logbook of every program I install and when I do a reimage. Sometimes a system restore works. Other times, I've had to format and then do a system restore. Bottom line is that there is a legitimate reason for doing restore, especially with a operating system like Microsoft. Does this mean I'm automatically guilty of a crime -- because there's no evidence?

Hmm, encryption...Idea!

[JD-1027]

Could you set the password to your encrypted drive to ISTEALMUSIC and plead the 5th if they ask you to reveal your password so they could check your drive?

Sorry for using the word "steal", I hate that as much as anyone else, but the password IVIOLATECOPYRIGHTLAWBYDOWNLOADINGMUSIC didn't fit the post as well.

Re:Hmm, encryption...Idea!

[mwilliamson]

This brings up an interesting point concerning the 5th...if decrypting required by subpoena in a civil case would implicate the user on related criminal charges, can this be a defense against having to decrypt? I have a gut feeling the user would still have to decrypt, but whatever is discovered would not be admissiable in criminal court. IANAL, however. If I were, I'd probably have a little more money, and know the answer to this.

Re:Don't destroy the evidence, let them do it for

[StewedSquirrel]

Ummm... i'm not sure how many MP3s would fit on a 5MB hard drive...

Nor where you might find a Pentium D system with an 8-bit ISA slot to run the old MFM controller cards....

nor the drivers for Windows Vista....

But uhhh I guess if you have sensitive uhhh text, maybe you could store a bit of it in something like that.

Provided it doesn't uhhh... crash. Then your sensitive text is uhhh... crashed too.

then again, they can just read the platters in a cleanroom, defeating the whole purpose of this discussion in the first place...

which brings us back to.... booby traps?

Someone bring me some thermite.

Stew

you bought a knife...

[Simonetta]

By the same twisted logic, the RIAA could say that since you bought a knife six months ago, then you are responsible for every stabbing in the city for the past six months. Real, serious legal systems have long Latin names and judicial processes for this type of questionable legal behavior. The USA is in the process of going from a judicial system based on 'due process' to one based on financial resources. Trial by money with the more money that you have to 'contribute' to the legal process - how many lawyers and legal services that you can buy - then the more likely you are to have any legal situation decided in your favor.

    Although everyone agrees that this is an undesirable situation, no one seems to be able to halt the process.

    I suspect that people will hire mafia-type organizations to deal with the RIAA. Someone gets a shakedown notice from the RIAA, and they pay $500 to an anti-RIAA mafia group instead of paying thousands to the RIAA. Then this mafia group threatens to use violence against the individual lawyers of the RIAA unless the shakedown case is dropped for the individual who hired the anti-RIAA mafia group. Since the RIAA is simply selecting people at random for extortion anyway, then they will just choose someone else from the phonebook. In this situation, what usually happens is that the mafia group will simply start killing the RIAA lawyers themselves and take over the extortion of the public directly, therefore getting money from both sides of the deal.
File sharing will continue as it always has.

Illegal prime number

[jonbnews]

This has been an issue for a long time. See http://en.wikipedia.org/wiki/Illegal_prime.. It's a (relatively small) prime number that represents the DeCSS source code. By strict interpretation of various laws (DMCA etc) even this wikipedia page is illegal since it provides the number.

saddest thing is

[xiaoren]

If this poor gal lived anywhere besides the US, she would probably be just fine.

Pretty simple...

[Kaenneth]

If the RIAA sends someone a note saying that they wern't supposed to have particular files, and use particular files; what's wrong with deleting those files and programs?

Also, If an authorized agent of the RIAA is asking you for a copy of music that they own, why is it a violation to provide them a copy?

as an example:

1) NASA makes a video of people on the moon
2) NASA then loses the origional
3) NASA requests copies to be returned
4) Guy with a movie studio offers to send them his copy

1) RIAA member makes a CD of someone performing a song
2) RIAA member is worried about who has it
3) RIAA member requests a copy from my computer
4) My computer offers to send them a copy

The distinction is, that by searching for querying, and requesting copies; then when someone provides the owner what they asked for; they sue... Isn't that entrapment? I wouldn't send them anything if they hadn't asked for it. I wasn't advertizing or offering it, they requested it.

Media does not equal content

[1960LP]

You are confusing content with the delivery system. The fact that CDs are a bunch of numbers is trivial. A CD, tape, book, or DVD is just a delivery system for the content. The creation of a song, book, movie or any other art begins long before it is stamped on some media to be sold. For most artists there are years of effort involved in mastering their field and creating the content. Just because that content can be translated into a number does not in any way mean that you, or anyone else, has a right to that content for free against the artists wishes.

Re:Salem Witch trials?

[Jtheletter]

Being an AC you'll probably never see this but you're way off base. The defendent apparently didn't wipe her drive, merely a portion of it, some other posters have discussed this at length. In any case, whatever data trail she left was sufficient to prove evidence was destroyed.

Re:sick of it

[NeutronCowboy]

Actually, a lot of the art and science that came out of the Soviet Block is absolutely fascinating and engaging. Check out some of the short films that were made there (not the government propaganda crap, but actual movies by actual people). They might not be as slick as MI:III, but they certainly have meaning and soul. Or, if you are into science, check out their space agencies, aircraft, mathematicians and papers published. There is a reason why the Progress 21 module is the official supplier of the ISS.

Come to think of it, I'm starting to like the idea of a centralized economy for art and science. It seems to produce quite a bit of stuff that we don't get. Then again, we aren't really a free economy either.

It seems like she was complying with the RIAA...

[Maltheus]

...by choosing to no longer share those files. Perhaps they should bring the judge up on the same charges for wanting a copy.

Re:sick of it

[DamnStupidElf]

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.

The incentive to get rich and famous only works for the smart people, and they will inevitably realize that the true way to get rich and famous is to control the works of others. There's really no other way, talent is only worth so much and fame only lasts so long. But the ability to control other people with laws and contracts can be indefinitely extended (How long are copyrights now? Patents?), providing an exponentially increasing revenue base. So, if you're smart, and you don't mind controlling other people to make money, the choice is clear. Create arbitrary laws that allow you to provide exclusive access to information, and literally make money out of thin air. Music especially is a zero cost endeavor for the industry. Artists do all the hard work with money on loan from the record company, and only if they're massively successful do they even make enough money to pay off those loans. The record company wins every time, unless the artists default on their loans and go bankrupt. The record companies don't search for bleeding edge, meaningful art. Art of that calibre causes reactions in people that's bad for marketing. Instead, the record companies control the ratio of bad-band image to generic pop appeal to market to the largest consumer groups it can think up. There is nothing creative or artistic about what the people actually making money from art do. They are pure businessmen, and as such it makes no sense to defend them on the basis of artistic expression or any other social ideal.

A command economy fails for exactly the same reasons: production is commoditized and restricted to fit within a given worldview, just like the pop music charts. There is a very real and very valid reason that the music and movie industries are struggling, and that reason is very obvious to most people. By artificially restricting their production domain to a 80 year old business model, the *AA's are being completely left in the dust by new art forms and markets. They only maintain their current position by weilding their current economic power to further restrict the free market to their production domain. They are a virus replicating with the money produced by hard working artists and the well trained consumer market they created. Everyone works for their entertainment, but it doesn't make sense for all the money to flow through a single industry before getting to the actual entertainers who get a pittance. The music industry today perfectly matches the description of a command economy. Ask yourself what that means for their future and the quality of their products.

Free markets do not need artifical restrictions.

don't kill the install - use VMware instead

[misanthrope101]

You don't have to sacrifice your installation. But this IS a good reason to run any iffy programs from a Virtual Machine, possibly stored in a Truecrypt container. Power off, unmount, delete, and you're done. If you use hidden containers, you don't even have to delete. Of course, if it's a Windows VM, you might want to have a license...

Re:Stupid!

[thparker]

Who exactly determines when I erased the contents of my HDD? The article makes it seem as if they 'just kinda knew' that the deletion happened as a response to being served, but how would they know that? Who carries the burden of proof here?

No, it doesn't seem as if they just kinda knew. If you read the actual court decision, the plaintiff's expert testified to exact dates that data was deleted. And the defendant didn't argue against this, instead claiming that it was caused by an automated disk defrag program -- despite a weird 4 day, 4 hour and 30 minute interval.

I don't know how they claim to have identified when deletion occurred, but as I said before: Straightforward set of facts -- plaintiff had expert testify to when data was deleted (which was clearly after the hard drive was required to be turned over), defendent stipulated that data had been deleted and made a weak excuse for it.

Re:Stupid!

[zenhkim]

> I can't help but wonder if anyone ever tried to put the files into the wastebasket and DIDN'T empty it.

Hmmm... The closest thing I can think of would be Oliver North. During the Iran-Contra operation in the Reagan years he oversaw the shredding of paper documents and the deletion of computer records to cover the operation's tracks. Little did Ollie realize (but any computer geek could have told him) that when he gave the computer a "delete file" command it didn't actually destroy the file; it merely tagged the file's directory entry as "Vacant -- space now available for overwrite". Thus, when the Iran-Contra scandal broke, federal investigators found a virtual treasure trove of incriminating computer data; all they had to do was "undelete" the files, as it were.

Bet the expression on Ollie's face must have been priceless when he found out.... ;)

Re:If you want to understand their view

[TheSkyIsPurple]

Just to be a pain =-)

>If you don't want it shared, don't share it

Are you sharing your PIN if you don't complete obscure the viewing area when you type it in? How hard do you have to work on your numbers in order not to share them?

What about transitive sharing? I give my social security number to a loan company... they accidentally share the document somehow. You shared it, so you no longer own it... then they "shared" it...

Re:This is why you keep a second boot drive and US

[zenhkim]

> When you get your computer, get a second boot drive and mirror the installation you have.
>
> One random day a week load this second boot drive into your computer and actually USE it for that entire day.
>
> if you receive a subpoena, replace your normal boot drive with your semi-sanitary mirror, bury the original hard disk in a tupperware container someplace really hard to find until they inevitably dismiss your case for lack of evidence.

Damn.... I've had redundant, mirrored hard drives for years (got over a baker's dozen of them right now!) and I never thought of using them in that manner. I do have a couple of HDs specifically reserved as "testbench / crash-and-burn" units, one primary and one backup: if a tricky install or suspicious download fucks up the drive, I simply shut down, erase drive, clone from the backup, and reboot. Malware and crudware, kiss my ass!

Very cool, plasmacutter. Everyone, mod this dude up.

Oops

[LuminaireX]

Hmm... so "intentionally wiping" the hard disk is a no-no if you're being sued. OK, plan B - if I ever have to surrender my hard drive, I won't intentionally format it. Rather, I'll accidentally trip on the stairs and drop it on my way out. When I picked it up, I accidentally dropped it in the pool. And then I accidentally dropped it under my car tire and ran it over - repeatedly. Then dragged it a couple miles on the freeway. Good luck copying that one guys Or just give them a different hard drive.

Did SHE do it?

[NewYorkCountryLawyer]

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.

Re:Don't destroy the evidence, let them do it for

[infidel13]

Except that the plaintiff would sue for their legal fees (including having the lawyers hire data-recovery folks) and you'd eat that bill, too.

Did we forget about this?

[LifeNLiberty]

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Re:If you want to understand their view

[cbhacking]

Bull shit!

By your argument, you're credit card info, social security number, date of birth, home address, IP address, username(s), password(s), encryption key(s), emails (and addresses), photos, documents, "confidential" information, and anything else that is stored on your computer or can be represented numerically is, in effect, public domain. I have a great interest in these numbers, and since you don't "own" them, I have as much right to them as you do.

In case you're going to present some ridiculous argument, such as that I would undoubtedly use those numbers for illegal and malicious purposes, consider that I could (as a goodwill gesture to the businesses involved) send copies of this info to every malware writer, spammer, phisher, and company that profits from it. Since the numbers are not my property any more than they are yours, I cannot be held responsible for their use. Nonetheless, I have done nothing illegal as there is no law (AFAIK) against sending numbers to corporations or private individuals. You could charge them, or even me, with identity theft, but you would lose; your online identity consists of numbers (well, Binary digITS) and thus cannot be owned. What isn't owned can't be stolen, so there's no case for theft.

Of course, if your objection is that the woman was intentionally making these numbers available, whereas you are attmepting to hide "yours", I remind you that they are already available. Every single value entered in your computer is intentially placed in a storage device capable of being remotely accessed. Every time you file taxes, open or close a bank account, or buy something with plastic, you're giving out these numbers. You may trust that the people or devices which receive them will keep "your" numbers private, but to that person or device, you are simply a source of numbers. Although you may not choose to give the numbers to me (just like that woman probably wouldn't specifically upload files to the computers of ), as you have no ownership of the numbers, you cannot dictate what anybody else does with them. Thus, even if you refuse to give me the numbers I want, you can't stop me from using them should I acquire them anyhow, nor can you stop anybody else from giving them to me.

Please... don't tell me you honestly believe what you posted. I like to think my species is smarter than that.

P.S. Apologies for the assumtion of US citizenship. Adapt the category of numbers that I have requested as appropriate for your situation.

Simple solution

[Anonymous Coward]

Don't download songs. The Internet is for porn anyway.

Re:If you want to understand their view

[Mr2001]

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?

Well, it's funny that you picked that. The harm in child porn comes from the child abuse that's perpetrated in order to make it, not from the content itself - much like the work that artists are trying to get paid for is the work they perform in order to create the original content, not the act of making copies (which is what they actually end up getting paid for under the current copyright regime).

In theory, with an advanced enough renderer and enough effort, you could recreate every shot of a child porn movie as CGI and it'd be absolutely indistinguishable from the original. It'd even be representable by the same number. And IIRC, the US Supreme Court has slapped down every law against "virtual child porn", so it'd be legal to share that number as long as you could prove it was rendered by a computer.

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.

Try taking that advice yourself. You're the one bringing up admissibility of evidence, I'm just saying you can't own a number, and it's ridiculous to share information with the public (by broadcasting a song over the air, for example) but still expect to control its distribution.

Re:If you want to understand their view

[Mr2001]

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.

Who says you can't make money from creating art without copyright? Just because the common business model today is "write something, then charge for distributing copies of it" doesn't mean that's the only way it can work, or even the best way.

Really, this comes up all the time in such discussions, and it seems completely absurd to me. Imagine if you woke up in an alternate universe where, say, accountants spent their days picking companies and auditing them without being asked, but didn't share the results until the companies paid them, and the accountants argued that it should be illegal to share these financial details because they couldn't think of a better way to get paid for their work! Ridiculous, huh? But that's basically how the argument for copyright goes. In our universe, many artists think the only way they can get paid is to make it illegal for people to share their work, but they overlook the very simple alternative: find someone ahead of time who will agree to pay you for your effort.

Re:If you want to understand their view

[Mr2001]

By your argument, you're credit card info, social security number, date of birth, home address, IP address, username(s), password(s), encryption key(s), emails (and addresses), photos, documents, "confidential" information, and anything else that is stored on your computer or can be represented numerically is, in effect, public domain. [...] Of course, if your objection is that the woman was intentionally making these numbers available, whereas you are attmepting to hide "yours", I remind you that they are already available. Every single value entered in your computer is intentially placed in a storage device capable of being remotely accessed.

You're ignoring the difference between broadcasting information indiscriminately to the public at large, and sharing information discreetly with individuals under the shared presumption that they won't share it with anyone else (except as necessary to complete your transaction). You can't broadcast a song to the public over the radio and expect to still control its distribution.

Re:Must have been blonde!

[Pofy]

>I gather, that if you are then asked by the court "Did you commit the crime", and you
>say "No", then you are committing perjury (assuming you're later found guilty). You can
>always refuse to answer the question under US law.

I admit I don't know much about US law in this case but it seems that if what you say is true, perjury applies to yourself on trial as well. Do you know were I can find the laws covering perjury by the way (US law) would be interested in looking at them?

Very true.

[BobBoring]

I concur. Civil disobedience is a valid tool for change. The parent to which I replied contained a glaring non sequitur. Simple because one thinks the majority of a people believe a law is immoral does not invalidate the law. The law must be formally removed from the books. To do otherwise would break down the 'rule of law' by having sections of the law that are selectively enforced or ignored.

Civil disobedience raises the awareness of the population to bad laws. Juries can then elect to find the protestors innocent based on the facts of the case. This puts pressure on the courts and legislative branches to revise or repeal the statute in question.

I've got some thoughts and ideas to share

[endersthoughtfulbrot]

Disclaimer: I write this not in the spirit of "let's break the law"
but in the spirit of fun and thinking outside the box. Hope I'm not
breaking the rules here, I would just like to chat about my thoughts.

  I've been thinking about this topic over the past few days, and I
had some questions and ideas for anyone who wants to debate on this.
Questions are these.. How do they know the date that the files are
destroyed? Is there a a way to bypass this short of changing your the
cmos date in your computer?

  And for the ideas... I may be full of crap, but I hope to inspire
debate on this... if there was some way to bypass the system saying
exactly when files are written, wouldn't it be a great idea if someone
programmed a privacy utility that didn't necessarily write a pattern
to the hard disk, thus making it obvious that files were wiped, but
rather moves files that you currently have to take the place on the
disk where the mp3's or other files were written thus making it appear
that your drive is simply a bit defragmented.
  You could even have it done several times with different files if
you're really paranoid...
  I would even suggest that the program be a standalone executable
rather than something you would install into your system, and the
thing would self destruct by overwriting itself in the same manner...
  [TANGENT] i mean... hmmm couldn't a program create another process
which would destroy the first for the purpose of stopping the first
being used so that it could be deleted. [/TANGENT]
Sometimes I really wish I knew how to program.

  And for my second idea:
  How about a second hard disk where all the mp3's and whatnot could
be downloaded to... simply install whatever p2p program, keeping the
default selection for the shared folder, then throw a few obscure GPL
liscensed mp3's and what not into it...
  Then go to options and change the shared folder to your second hard
drive... Proceed to download merrily away until the RI double A catches
ya, and demands you hand over the hard disk.
  Go back to options, and change the shared folder back to the original,
fire up a dos prompt, and do a "del /w metadata.xml" or whatever the
name of the metadata file is, thus overwriting it with zeroes... then
change directories to "C:\Documents and Settings\(username)\Recent" do
a "del /w *.*". Wiping these tiny files with zeroes I would think would
be a lot more undetectable than wiping lots of mp3's using a pattern.
Correct me if I'm wrong, please.
  Shut off your comp, unplug the second hard drive and put it away. Turn
your comp back on to allow windows to unload the second hard disk driver.
Shut your comp back down, unplug the wanted hard drive, and present it to
the RIAA. They ask you about the p2p software you have installed, tell
them that its to help distribute the GPL mp3's you have in your shared
folder (remember those?) Well why isn't there a metadata file on
whatever files were uploaded? "Gosh Beaver, I guess no one liked them
enough! Gee whiz!"
  I know I'm probably missing a few details here, and maybe my
understanding on the technicalities could be deepened... So feel free
to respond!!