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P2P Defendant Destroys Evidence, Case Defaults 813

Posted by CowboyNeal
from the wrong-ways dept.
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."
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P2P Defendant Destroys Evidence, Case Defaults

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  • Stupid? (Score:5, Interesting)

    by mseeger (40923) on Friday August 25, 2006 @02:59AM (#15976383)
    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? (Score:5, Informative)

      by StrongGlad (687909) * on Friday August 25, 2006 @03:11AM (#15976415)
      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 [moxieproxy.net] (please be gentle with my server :-).
      • Re:Stupid? (Score:5, Informative)

        by gweihir (88907) on Friday August 25, 2006 @04:26AM (#15976606)
        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? (Score:4, Funny)

          by hcob$ (766699) on Friday August 25, 2006 @07:21AM (#15977118)
          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: (Score:3, Insightful)

        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? (Score:5, Funny)

      by m874t232 (973431) on Friday August 25, 2006 @03:16AM (#15976422)
      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! (Score:3, Informative)

        by mseeger (40923)
        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

  • Any lawyers here? (Score:4, Insightful)

    by grimJester (890090) on Friday August 25, 2006 @03:00AM (#15976385)
    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? (Score:5, Interesting)

      by pgpckt (312866) on Friday August 25, 2006 @04:53AM (#15976669) Homepage Journal
      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.
  • by tacarat (696339) on Friday August 25, 2006 @03:00AM (#15976386) Journal
    I'm guessing she actually just flushed the files before SWAT moved in.
    • Re: (Score:3, Funny)

      by DigiShaman (671371)
      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 ;)
  • What the? (Score:5, Interesting)

    by CRC'99 (96526) on Friday August 25, 2006 @03:00AM (#15976387) Homepage
    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".
    • by bky1701 (979071) on Friday August 25, 2006 @05:35AM (#15976781) Homepage
      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...."
  • This seems bogus. (Score:5, Interesting)

    by commodoresloat (172735) * on Friday August 25, 2006 @03:01AM (#15976389)
    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?
    • by raehl (609729) <raehl311&yahoo,com> on Friday August 25, 2006 @03:12AM (#15976419) Homepage
      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. (Score:5, Interesting)

        by commodoresloat (172735) * on Friday August 25, 2006 @03:47AM (#15976498)
        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: (Score:3, Insightful)

        by kestasjk (933987)
        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 reas
        • Re: (Score:3, Funny)

          by Jekler (626699)
          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
  • by Denial93 (773403) on Friday August 25, 2006 @03:16AM (#15976424)
    [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.
  • Virus? (Score:5, Funny)

    by rm999 (775449) on Friday August 25, 2006 @03:18AM (#15976427)
    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.
  • So my (Score:5, Funny)

    by jlebrech (810586) on Friday August 25, 2006 @03:19AM (#15976430) Homepage
    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 (Score:5, Funny)

      by shawb (16347) on Friday August 25, 2006 @03:34AM (#15976461)
      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.
  • by NineNine (235196) on Friday August 25, 2006 @03:31AM (#15976454)
    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...
  • by damburger (981828) on Friday August 25, 2006 @03:50AM (#15976504)
    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.
  • by castlec (546341) <castlec.yahoo@com> on Friday August 25, 2006 @03:52AM (#15976515)
    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: (Score:3, Informative)

      by Tim C (15259)
      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.
  • by noidentity (188756) on Friday August 25, 2006 @04:00AM (#15976530)
    [...] 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: (Score:3, Insightful)

      by cpt kangarooski (3773)
      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 fo
  • by segedunum (883035) on Friday August 25, 2006 @04:00AM (#15976532)
    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.
  • So, if someone... (Score:5, Interesting)

    by CrazyDuke (529195) on Friday August 25, 2006 @04:08AM (#15976554)
    ...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?
  • by trip11 (160832) * on Friday August 25, 2006 @04:16AM (#15976574) Homepage
    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.
    • 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.
      • by jimicus (737525) on Friday August 25, 2006 @08:19AM (#15977435)
        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.
  • Dumb, dumb, dumb (Score:5, Interesting)

    by 99luftballon (838486) on Friday August 25, 2006 @04:34AM (#15976624)
    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: (Score:3, Insightful)

      by man_ls (248470)
      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 decisi
  • by zoeblade (600058) on Friday August 25, 2006 @06:00AM (#15976848) Homepage
    If copying a copyrighted song counts as theft, does deleting the evidence count as giving it back? Shouldn't that warrant a reduced sentence?
  • by eagl (86459) on Friday August 25, 2006 @06:41AM (#15976952) Journal
    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!
  • by plasmacutter (901737) on Friday August 25, 2006 @07:13AM (#15977087)
    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.
  • by paladinwannabe2 (889776) on Friday August 25, 2006 @10:26AM (#15978602)
    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.

"The way of the world is to praise dead saints and prosecute live ones." -- Nathaniel Howe

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