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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.
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...
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.
...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.
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.
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
If copying a copyrighted song counts as theft, does deleting the evidence count as giving it back? Shouldn't that warrant a reduced sentence?
I think copyright infridgement should be just that: I infringed someone's copy rights. I think it should apply when I'm trying to earn money using someone's work without their authorization, or when I'm trying to claim the copyright on something ilegitimately.
I think those concepts should be clearly separated from "getting a song at no cost from some other peer". Maybe you'd like to claim it's also ilegal, but I don't think "Copyright infrigdement" can apply to both.
PS: The difference? The money involved.
My 0.02 cents
Examine the word; copyright. It refers to the right to copy. If you don't hold the right to copy something and you copy it anyway, you have committed a copyright violation. Money is not a factor.
I'm not saying I agree with the way it works but there you have it. And the penalty isn't for how many MP3s you may have downloaded to your drive, it is for how many times they might have been downloaded from you. It is pretty harsh.
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.
>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.
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.
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.
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.
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.
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. --
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.
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.
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.