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P2P Defendant Destroys Evidence, Case Defaults
neoflexycurrent writes "A court in Texas has thrown the book at a defendant accused by the RIAA of file sharing. The court determined that she had intentionally wiped her hard drive clean, so it entered the most severe sanction possible — default judgment against her. The record companies now just have to ask the court how much they want in damages."
destroying evidence after receiving a court order is always a stupid thing to do. The question for me is: How did they proved the data was destroyed after the defendant receivced the court order?
Regards, Martin
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.
I'm guessing she actually just flushed the files before SWAT moved in.
"Common sense will be the death of us all"
Wouldn't a more believable reply have been "My computer crashed and it wouldn't boot up. The only way I could get it going again was to get a friend to reformat it".
Sendmail is like emacs: A nice operating system, but missing an editor and a MTA.
The court rendered default judgement because it determined that the plaintiff acted in bad faith, showing "blatant contempt" for the court and a "fundamental disregard for the judicial process." This makes no sense. Charge her with contempt of court and obstruction of justice, fine. The article claims the court wanted to deter her from doing it again and set an example by punishing her -- I'm sorry, but a week in the can will do that trick just fine. Contempt and obstruction are serious criminal offenses. But rendering default judgement here is tantamount to saying that the lack of evidence here is evidence in itself. On top of it, the court implicitly endorses whatever the hell value the plaintiffs decide to attribute to the allegedly "stolen" songs (and the court's decision can be cited in future cases as evidence that said value is reasonable). I realize the judge wants to "set an example" that evidence-tampering is wrong, but you do that by using the criminal sanctions that are already available for evidence tampering. I'm not ANAL, and I'm not a lawyer either, but this is a strange governmental endorsement and protectionism of a corporation's interests in a supposedly free market, no?
Just because it's hard to come up with certain information doesn't mean it shouldn't be "Free". Consider all the work that went into calculating the speed of light, or pi, or the age of the universe... now imagine if everyone who wanted to use any of those figures had to pay the heirs of the people who discovered them!
Visual IRC: Fast. Powerful. Free.
[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.
blow your mind already
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.
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.
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.
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...
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
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.
No chance. The record company is crushing somebody, destroying their life just because they can and they think it will scare people into paying their information tax. They are terrorising people. Sooner or later, someone is going to start bombing these companies.
If we can put a man on the moon, why can't we shoot people for Apollo-related non-sequiturs?
If we have reason to believe that we will in the future be charged, keep a clean hardrive that is "mirrored." If she had spent the extra $80 to have a second hard drive, installed windows and other programs, she could have turned in that hard drive and disposed of the original.
When I tell an object to delete this, am I killing it or telling it to kill me?
Bah, the judge is just miffed that he didn't get a copy of all her music. She did the right thing by putting an immediate stop to such blatant file-sharing, by the courts even!
</sarcasm>
Eh? Since when is the recipient of an unauthorized copy guilty of copyright infringement? I though it was just the provider of the unauthorized copy.
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.
...has a porn collection, gets their hard drive subpoenaed, had a file sharing client installed at somepoint on the PC, and deletes the pron because they feel they don't want their fetishes being a part of the public record; they are guilty by default?
Any sufficiently advanced influence is indistinguishable from control.
Your confusion stems from the fact that the person is not being prosecuted. Remember, copyright infringement is not theft, nor a criminal act. It's a civil offence. This is a civil suit.
Corporations love civil suits. Individuals can't afford to fight them, and seemingly logical courses of action (like cleaning your hard disk) will get you in trouble if you don't know the intricacies of the law -- and law in modern democracies is designed to be incomprehensible to the people it governs. The requirements for a guilty verdict in civil suits are much lower than for criminal trials, and no right to a jury is guaranteed in many states.
He who lights his taper at mine, receives light without darkening me.
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.
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 ?
Just like culture and human happiness advances when artistic works are freely enjoyed, spread, and built upon to create new works.
Hoarders love to repeat that romantic gibberish, but sorry: information is information. The bytes on a CD are, guess what, information. If you call someone on the phone and read them off the list of digits, eventually they'll be able to put together their own copy of the song. The desire to prevent someone from sharing those digits is no more justified than the desire to stop them from sharing the digits of pi.
Uniquely theirs? Ha. Every artist draws something from the work of others; no one grows up in a vacuum.
Correct - it's nobody's right to own it. You can't own a number.
Visual IRC: Fast. Powerful. Free.
In terms of a defence wiping your hard drive is pretty much an admission of guilt. You're saying to the court that you don't want to allow them to see any evidence and it's hard to see how the judge could have done otherwise. But it sets a worrying legal precedent. I use Eraser software to regularly overwrite deleted sectors of my hard drive and it could be argued that if I deleted a downloaded song and then overwrote the sector repeatedly I was tampering with evidence. Surely the best defence would be to find out what songs you are being prosecuted for and then buying the album/game/DVD. Arguing in court that you tried the music and so bought the album, thus actually profiting the RIAA and its minions, would make an interesting defence.
I'm still impressed by what can be considered copyright infringement under the US law, and how exaggerately high the compensation for damages can be.
If they were to be fair, I think they should charge with $1 for each Mp3, since that's what it would cost her to buy them through iTunes (or maybe $2, or $10, since she could make copies, but nothing near $150,000), and the costs of the trial.
My 0.02 cents
Artists/bands don't have to back the RIAA, record companies back the RIAA. Personally I don't agree with pirating of music. Bands/Artists make so little off sales it's rediculous. You want the RIAA to go away? then get every band and artist out there to NOT sign on with a major record label that is part of the RIAA and to NOT sign on with any that have talked with or are considering working RIAA. Until then this is what we get. Or until there are enough counter suits against them that they get the point.
So many choices, so little tolerance.
This could EASYLY mean anyone who has ever deleted an MP3 from a P2P network (but it can't be proven it was from one, now can it?) can have the book thrown at them. We all know how Oses handle files - does the cache count? How about if you burn it on a CD? In any case, you are "distorying evidence", and, IANAL, but I would think it counts as such even before they suspect you. In other words, most everyone on the internet can be punished identically to this defendant.
Frightening indeed.
Great Intellect...
If copying a copyrighted song counts as theft, does deleting the evidence count as giving it back? Shouldn't that warrant a reduced sentence?
Great Intellect...
I think copyright infridgement should be just that: I infringed someone's copy rights. I think it should apply when I'm trying to earn money using someone's work without their authorization, or when I'm trying to claim the copyright on something ilegitimately.
I think those concepts should be clearly separated from "getting a song at no cost from some other peer". Maybe you'd like to claim it's also ilegal, but I don't think "Copyright infrigdement" can apply to both.
PS: The difference? The money involved.
My 0.02 cents
Examine the word; copyright. It refers to the right to copy. If you don't hold the right to copy something and you copy it anyway, you have committed a copyright violation. Money is not a factor.
I'm not saying I agree with the way it works but there you have it. And the penalty isn't for how many MP3s you may have downloaded to your drive, it is for how many times they might have been downloaded from you. It is pretty harsh.
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!
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
I truly do not understand the legal system in the US of A. I live in Australia, and I'm sure that this situation could not happen here. I'm sure that 'destruction of evidence' is indictable here, but I cannot see how that something that is not there (ie the data in question) can be construed as destruction of evidence. If it was 'there', then it's evidence, if it's 'gone', then who knows what the evidence was?
I'm in to sadism, bestiality and necrophilia. Am I flogging a dead horse?
Put actors and actresses and music artists at a cap of 150k anything higher than that is just a little bonus. They shouldn't be expecting millions on a small amount of work. This goes for athletes as well. Maybe if we do that, there will be better movies and albums out there.
Huh? Do you honestly think that if you take away the incentives to *get rich and famous* that there will be better movies and albums? Do you really believe that? Were you not paying attention during the last 50 years as one centrally-managed economy after another failed? Did you not notice that the products produced in those countries were orders of magnitude worse than those produced in free market economies - and losing ground with each passing decade? Did you notice that virtually all innovation sprung from countries with free market economies? Incentive breeds competition, which leads to dramatic product improvements and innovations. If you take away the incentive, everything stagnates.
With the RIAA and MPAA if they had it their way, we wouldn't have CDs or DVDs to burn on.
But we do have those, so they didn't have their way. So what exactly is the problem? Their power fades with each passing year. We are witnessing their dying gasps.
The more you regulate a company, the worse its products become.
In order to prevent a crime you must make the penalty equal or greater than the gain divided by the chance of getting caught. The retail value of the songs may have been $500 or so, but since everyone knows the chances of being caught are nil piracy occurs frequently.
Degaussing scares the bad magnetism out of the monitor and fills it with good karma.
That would probably only destroy the circuit board on the drive. The data on the drive platters should still be fine. They'd just buy another drive of the exact same model swap in the good circuit board and access your drive anyway. OK. They might have to do that several times until they notice what you've done to the power connector but they would get the data.
>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.
I have a photographic memory for numbers. I know almost a hundred of them.
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.
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.
VLC FOR MAC IS DYING! IF YOU DEVELOP, PLEASE SAVE IT!!
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.
I can't help but wonder if anyone ever tried to put the files into the wastebasket and DIDN'T empty it.
Slow down, cowboy! It has been 4 hours since you last posted. You must wait another few hours.
The bytes on a CD are, guess what, information. If you call someone on the phone and read them off the list of digits, eventually they'll be able to put together their own copy of the song. The desire to prevent someone from sharing those digits is no more justified than the desire to stop them from sharing the digits of pi.
What if those digits, when fed into a JPG renderer, form a picture of child porn? Is that OK in your mind, since it's really just a number? In fact, an entire child porn movie could be represented as a single (albeit, very large) number. So that makes it exempt from regulation, in your eyes?
An email sent from Osama bin Laden to Ramzi Yousef, telling him where to find the bomb supplies, and which flights to bomb, could be represented as a single number. Are you arguing that such an email should be inadmissible as evidence of charges of terrorism, because it can be depicted as a number?
Don't be ridiculous.
Correct - it's nobody's right to own it. You can't own a number.
Uhm, can you be charged with distributing child porn if that "number" happens to form a JPG image of underage sex acts? If that "number" happens to be the binary representation of a Word document containing classified government tactics for fighting the war on terror, you don't think you should be charged with treason for giving it to Osama bin Laden? After all, "it's just a number," right?
Like woodworking? Build your own picture frames.
The entire purpose of copyright, as allowed by the U.S. Constitution, is to facilitate creators of works to earn money off their creations for a time. So yeah, copyright is about money (as a means to encourage further creative work).
Good or bad, copyright is, indeed, about money.
Kythe
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).
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.
Proud neuron in the Slashdot hivemind since 2002.
Your fantasy that artists should be forced to share their creativity with the rest of the world without compensation for their efforts is every bit as romantic as the grandparent. And by "romantic" I mean nauseating.
"Every artist draws something from the work of others; no one grows up in a vacuum."
Everything ANYONE does draws something from the work of others. Does that mean that NOBODY is entitled to compensation for ANYTHING?
"Ask not what your country can do for you." --John F. Kennedy
She "stole" 200 songs, yes? Say 15 albums. What do you think the punishment is for busting a store window and stealing 15 albums? I'd wager it's far less than $150,000 per song. If the record companies are going to oversimplify things and call it stealing, they should be forced to accept the same penalties as judgement.
If she shared them, then it's considered redistributing. She would be accused of bootlegging and the penalties are much more severe.
Based on that very simplistic definition, any use of a work in digital form would then be a violation, since copying is necessary step involved in its intended use.
Please stand clear of the doors, por favor mantenganse alejado de las puertas
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.
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
I think you mean the majority of the people under 18. Most adults would consider it theft whether they'd do it themselves or not.
In my experience - rubbish.
Large numbers of adults of all ages are copying music to each other, especially using more traditional methods such as tape/CD copying. These same people would consider it abhorrent to steal something.
For most people, saying "Would you like this CD? I just nicked it from the shop the other day" would be unthinkable, but offering a copy of a CD, even to someone who disagrees with any form of copyright infringement, is considered okay.
If they really charge some poor woman $150,000 USD for down/uploading 200 songs... I'm going to snap, and murder some people.
Ok. So maybe not. I have too much to live for. But, with the level of injustice rising so high, I can see someone with less to lose to do something like that. Easily.
I mean... what we're talking about is potentially ruining someone's life.
Sticking feathers up your butt does not make you a chicken - Tyler Durden
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.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
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.
I am trying to think of a trivial crime that could get me a free flight to Australia. :-)
We live in a democratic republic -- therefore if elected officials are not serving the people and allowing laws which directly contravene your wishes, you are under no moral obligation to obey them.
This is very poor logic on your part. It contravenes my wishes that you are wasting my air by breathing but the elected officials have passed laws prohibiting me from killing you, therefore, living in a democratic republic I have no moral obligation not to kill you anyway?
You can vote out the people passing the laws you don't agree with, or you can get them to repeal the laws you don't wish to follow but you have a legal obligation to comply with the whole body of law no matter how morally objectionable you may find specific items. By claiming one individual's wishes out weights the collective rights of the elected government, you violate the basic principle of a representative democracy. Law is a set of compromises with which everyone disagrees at one point or another. You are legally and morally obligated to obey the law or to change it.
You try your logic in a court of law in almost any country in the world and you will be in the same situation as the person in the article, i.e. getting the book thrown at you. In Texas the judge would additionally cite you for contempt of court and could fine you and throw you in jail. You can be held indefinitely for contempt of court. The judge could have you sit in shackles and a pink jumpsuit the corner of his courtroom every day until you apologized and begged him pretty please to release you. If you acted out or disrupted the sessions he could have the bailiff taser you into submission and drag you to the holding cell for the rest of the day and add days, weeks or months to your sentence as punishment for every occurrence.
Though with most filesharing software you automatically share the files with everyone else. She could have had thousands of songs, and thousands of people could have downloaded from her.
Emphasis mine. This is the problem as I see it with the damages being awarded for these infringement cases. Even if you prove the person had copies of the songs on their computer and were obtained through copyright infringement using a P2P service, where is the proof that thousands of others actually copied the songs from the defendent? And what about if the sharing feature of the P2P app is turned off? The courts are not in the business of punishing "could have" cases (except for this recent NH judgement which is rediculous, with the dissenting judge plainly stating no crime was committed or proven). So perhaps I should say the courts shouldn't be in the business of punishing "could have"s except where laws already allow for that sort of thing (e.g. attempted murder). But there are no laws that I am aware of that make the potential to copyright a crime. Otherwise, anyone owning a copy of a piece of media could be prosecuted because simply having the media would meet the low standard of having the ability to infringe copyright. IMHO if the RIAA wants damages of $150,000 per song they need to demonstrate that the defendent caused that much damage, not that they "could have" caused that much damage. If I own a gun and I'm arrested for some other crime, say tax evasion, can I also be convicted of attempted murder because I could have shot someone?
-- I'm not a pessimist, I'm a realist. It's not my fault that life sucks so much. --
That's what it used to be called. Just because the majority want it or not want something can be a factor, but
watch what you wish for.
Think about 1942 , west coast, being of Japanese ethnic origin.
You too could be tomorrows NON-majority.
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.
It was a joke, dumbass.
But if I could make an exact duplicate copy of any of them, and the original was still intact, then damn straight I would!
Then who would pay the $1 billion for the FIRST car?
paintball
OK, but this applies directly to me. This is not a hypothetical question, but an actual one. I have (seriously) just decided to wipe all of my hard drives clean of the (many) songs and movies I downloaded. Not particularly because I fear the RIAA or MPAA, but because I just don't enjoy it anymore. I own all of the music that I listen to and all of the DVD's I watch, and was just downloading stuff for the technical challenge. I was downloading as recently as about a month ago, but last week, I ran DBAN on all of the hard drives which contained the data.
So as a serious legal question out there to people who are in the know, what if the RIAA or MPAA logged my IP address last month and are in the process of subpenoing my ISP? That process can take over 6 months. Are they going to say "He erased his hard drives, so he must be guilty." They can't determine when I erased them, so are they going to claim that I destroyed evidence after I get the letter in 5 months? Can a guy really have a change of heart and do the right thing, only to get more severely punished than if he had kept up the offensive action?
-Arthur
Cave ne ante ullas catapultas ambules
What if she had simply encrypted the entire partition?(This is trivial to do with many Linux distributions) In such a case could she have simply given up the hard drive and not give the password. In such a case all the data would be intact. It would just be up to the authorities to decipher it. Would having to give up the password amount to self encryption? Another question is, would she even have to give up the password in such a case? IIRC the the up-and-coming Windows Vista OS will support encryption as well, and I am sure many people will use it. I think it will be interesting to see what the US government's response to this type of thing will be.
Look, I despise the RIAA as much as the next Slashdotter, but I can't fault the Judge's logic in this case. The Judge requested evidence, the woman destroyed the evidence, and I don't think that anyone here even has 'reasonable doubt' that the woman wasn't pulling songs off BearShare. If I were the Judge I would find her guilty as well.
You are reading a copy of my copyrighted post.
I don't see any mention of one of my favourite novels, Cryptonomicon by Neal Stephenson, in which at one point a server is stored in a cabinet that effectively EMPs the machine if it's improperly removed. I've always wondered how practical that might be. I suppose you would need a heck of a lot of power available.
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.
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?
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.
Proud neuron in the Slashdot hivemind since 2002.
Swap hard drives with another computer.
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?
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."
Sitting in my day care, the art is decopainted.
Now examine the term of the copyright at the time the first US law on it went into effect. And examine the penalties. Now examine the current term of the copyright ant panalties.
It shouldn't take you long to decide that the system is broken.
I think we've pushed this "anyone can grow up to be president" thing too far.
The problem is that "copying" the file without redistribution or profit is confused with "copy"right when it really is petty theft.
No, it is not. Copyright violation is not theft. Period. End of story. If copyright violations were theft, then we wouldn't have any copyright laws, because theft is already illegal (in case you hadn't noticed yet). It was already illegal long before the notion of "copyright" ever entered any legal text. As a matter of fact, copyright laws were created exactly because the existing laws about theft were not applicable in copyright cases.
The easiest way to demonstrate in a conversation about the RIAA that you don't even understand the problem at hand is to equate copyright violation to theft.
The notion of theft requires that something be removed somewhere. If I go to your house in the night and I take your car away: that is theft. But if I go to your house in the night and make a copy of your car and then I drive that car all over the neighborhood: that is NOT theft. We can haggle all day what precisely it is, but nothing was stolen from you, you still have everything you had before, therefore no theft has happened.
You can steal a CD. That would be theft. But making a copy of a CD is not. That's what copyright law is all about. That's why these legal cases exist. That's why there's legal struggles to redefine copyright in the age of the internet. Because all those age-old laws about "properety" and "theft" do not apply.
We're all born with nothing.
If you die in debt, you're ahead.
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?
If corporations are people, aren't stockholders guilty of slavery?
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.
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.
The *purpose* of copyright is to promote the progress of science and useful arts. Copyright does this *by* giving exclusive rights to the author or inventor of a work for a limited time. So, while money is a likely byproduct of copyright, to say that was the purpose of copyright under the Constitution is to ignore what it clearly states. But, of course, it's easier for artists (and their publishers) to show that they're not being paid than it is to show that they're promoting the arts and sciences.
Eurohacker European paranoia, gun rights, and h
The problem is that "copying" the file without redistribution or profit is confused with "copy"right when it really is petty theft.
Are you accused of copyright violations when you shoplift a CD from a store? No.
Are you accused of copyright violations when you sell said stolen goods? No.
Then what is the difference?
The difference is in the legal definition of theft.
In the UK, this is defined in the Theft Act 1968:
"(1) A person is guilty of theft if he dishonestly appropriates property belonging to
another with the intention of permanently depriving the other of it; and 'theft' and 'steal'
shall be construed accordingly."
The US has a different law but uses the same definition. The key point is it is theft if, and only if, you permanently deprive the other of it. When you steal a CD from a shop, they no longer possess that CD. That is theft. When you download a song or copy a CD, the other person still has the CD. That is the difference.
If you then try to sell it it makes no difference, because you have already stolen it. Same law (probably a harsher sentence though).
Copyright laws are completely separate to theft. They allow the owner to control when you can copy their work. They can give you permission (e.g. to publishers so they're allowed to create the copies to sell) or not (by default). They exist because theft does not cover copying work, because the original still exists.
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..
... 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.
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
The higher the technology, the sharper that two-edged sword.
Frankly, I didn't see ANY evidence in the court's decision that SHE did it. I think she had teenage and adult children who may have done it. Why should she be punished because of something they may have done? The judge takes a pretty big leap from the fact that it was done to the unsupported conclusion that it was the defendant who did it.
Ray Beckerman +5 Insightful
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.