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."

Stupid?

[mseeger]

Hi,

destroying evidence after receiving a court order is always a stupid thing to do. The question for me is: How did they proved the data was destroyed after the defendant receivced the court order?

Regards, Martin

Re:Stupid?

[StrongGlad]

The record companies' expert witness examined her hard drive, and somehow determined that two "disk-cleaner utility programs" (as the court put it) had been used to delete data intentionally. Specifically, he noted that iMesh and BearShare were installed at one time, and were configured to use the handle, "ugotburnedby21".

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

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

Re:Stupid?

[gweihir]

The record companies' expert witness examined her hard drive, and somehow determined that two "disk-cleaner utility programs" (as the court put it) had been used to delete data intentionally. Specifically, he noted that iMesh and BearShare were installed at one time, and were configured to use the handle, "ugotburnedby21".

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

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

Re:Stupid?

[hcob$]

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

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

Re:

[sabernet]

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

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

[frogstar_robot]

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

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

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

An even easier solution.

[rolfwind]

Swap hard drives with another computer.

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

[gid13]

She "stole" 200 songs, yes? Say 15 albums. What do you think the punishment is for busting a store window and stealing 15 albums? I'd wager it's far less than $150,000 per song. If the record companies are going to oversimplify things and call it stealing, they should be forced to accept the same penalties as judgement.

Re:

[HuguesT]

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

Very poor logic here...

[BobBoring]

We live in a democratic republic -- therefore if elected officials are not serving the people and allowing laws which directly contravene your wishes, you are under no moral obligation to obey them.

This is very poor logic on your part. It contravenes my wishes that you are wasting my air by breathing but the elected officials have passed laws prohibiting me from killing you, therefore, living in a democratic republic I have no moral obligation not to kill you anyway?

You can vote out the people passing the

Tyranny of the majority

[baomike]

That's what it used to be called. Just because the majority want it or not want something can be a factor, but
watch what you wish for.
Think about 1942 , west coast, being of Japanese ethnic origin.
You too could be tomorrows NON-majority.

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

[edmicman]

>Because the majority of The People do not beleive music theft to be a crime I think you mean the majority of the people under 18. Most adults would consider it theft whether they'd do it themselves or not.

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

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

[mdwh2]

I think you mean the majority of the people under 18. Most adults would consider it theft whether they'd do it themselves or not.

In my experience - rubbish.

Large numbers of adults of all ages are copying music to each other, especially using more traditional methods such as tape/CD copying. These same people would consider it abhorrent to steal something.

For most people, saying "Would you like this CD? I just nicked it from the shop the other day" would be unthinkable, but offering a copy of a CD, even to someone who disagrees with any form of copyright infringement, is considered okay.

Re:

[raehl]

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

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

Re:Stupid?

[DaveV1.0]

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

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

Re:

[Ravensfire]

If you read the court order, the judge noted that the plaintiff's case was largely dependant on the evidence on that hard drive. Without that evidence, the case was significantly harder (if not impossible) to prove. The judge also held that the actions by the defendant were deliberate and that the defendant knew she had an obligation to preserve the evidence.

With all that, it's hard to see how the judge could have done anything other than what he did.

-- Ravensfire

Re:

[BalanceOfJudgement]

With all that, it's hard to see how the judge could have done anything other than what he did.

While I see where you're coming from...

How about, not knowing the extent of actual damages, invoking the MINIMUM penalty instead of the maximum. That would be more fair, particularly because it is incredibly hard for me to believe that some random woman would have the wherewithall to cause $3,000,000 of damage merely by downloading several dozen songs. Causing that much actual damage pretty much requires redist

Re:

[BalanceOfJudgement]

Eh.. I know, and while I understand the reasoning, I simply cannot accept its consequences in this case. $30,000,000 for 200 songs? That is not reasonable by any stretch of the imagination.. and that tells me there's something wrong with the law that allows it to be $30,000,000.

It would make more sense to judge based on actual damages and not on the industry's extortionist attempts at rewriting US copyright law. But, that's just me talking into the wind.

Re:

[thePowerOfGrayskull]

Erase that "?" after "stupid". I just read the actual judgement. It turns out that this... genius... wiped her hard drive once when receiving the request from the plaintiff requesting inspection. The beautiful part comes when she does it a month later, after the court granted the plaintiff's motion to force her to allow inspection. What that says to me is that she was stupid enough to continue downloading after being served with the suit!

Re:Stupid?

[westlake]

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

Did your report the theft? File an isurance claims? Have you been seen, perhaps photographed, using that "stolen" PC. IMs, MySpace, Skype? Foling a false report to the police is worth at least a misdeameanor, perjury is a felony charge. Compounding stupidity with reckleesness makes sense only only on Slashdot.

Re:

[lardbottom]

I would mod you down, but *yawn*.

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

However, claiming it was stolen by reporting it is stupid. Most deductibles for home theft won't even cover it. It's mostly just a waste of time to report something like that. It's not like anyone does anything. I did get a stolen

Re:

[spamchang]

Given that the plaintiffs had an alleged date of the 'crime,' you'd have to use a hard drive purchased before the date that you were served the summons, evidence request, or such. Furthermore, I presume the hard drive doctors working for the RIAA would be smart enough to look at the timestamp of the software install, etc etc. It'd be really fishy to see "old" files installed the day after you receive the request for evidence. Also, fudging your BIOS clock doesn't work either if you reformat and reinstall

Re:

[joto]

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

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

Re:

[WhiteDragon]

In Cryptonomicon, the server was nuked by hackers across the street in a van, with a big EMP cannon. However, as others have pointed out (and was complained about by the owner of the computer in the story), an EMP will fry the electronics without deleting the data. In the story, after the computer was fried by EMP, magnetic loops in the door of the building wiped the drives as the computer was being removed. In reality, no external magnetic or electric field will really affect the data on the platters mu

Re:

[dgatwood]

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

This article [darkness2light.org] is a good summary.

Re:Stupid!

[Cro Magnon]

More severe cases only put the files into the Windows waste basket and emptied it.

I can't help but wonder if anyone ever tried to put the files into the wastebasket and DIDN'T empty it.

Re:

[denebian devil]

What if she had done this before the court order though?

The court order was to sanction here *after* she destroyed the evidence. Once you are made aware that you have been sued in court (i.e. served), you *cannot* destroy evidence that is pertinent to that suit. If the other side finds out you have done this, they can file for sanctions. No court order needs to tell you that this is so, because these are the standing rules of the court (of course different from place to place depending on where you have bee

Re:

[a_nonamiss]

OK, but this applies directly to me. This is not a hypothetical question, but an actual one. I have (seriously) just decided to wipe all of my hard drives clean of the (many) songs and movies I downloaded. Not particularly because I fear the RIAA or MPAA, but because I just don't enjoy it anymore. I own all of the music that I listen to and all of the DVD's I watch, and was just downloading stuff for the technical challenge. I was downloading as recently as about a month ago, but last week, I ran DBAN on al

Re:Stupid!

[thparker]

So as a serious legal question out there to people who are in the know, what if the RIAA or MPAA logged my IP address last month and are in the process of subpenoing my ISP? That process can take over 6 months. Are they going to say "He erased his hard drives, so he must be guilty." They can't determine when I erased them, so are they going to claim that I destroyed evidence after I get the letter in 5 months? Can a guy really have a change of heart and do the right thing, only to get more severely punished than if he had kept up the offensive action?

OK, it's Slashdot, so obviously I'm going to answer even though IANAL. I have, however, had work product subpoenaed in cases involving my clients in the past. There is a lot of misinformation in this thread, and confusion about being served, receiving a "court order" and being subpoenaed. Service is a generic term that applies to the process of delivering court documents to a party in the action. It could be the lawsuit itself, it could be a subpoena to appear in court, or it could be something related to document production.

The key here is the subpoena or an anticipated subpoena. A subpoena for document production will specify exactly what you are being asked to provide. Once you've received the subpoena, you are clearly obligated not to destroy any of the requested documents if you have them. You haven't been subpoenaed, so you're clear in this respect. There is a grey area where you aren't permitted to destroy documents when you know there's an investigation. This was a key element in the DoJ's lawsuit against Arthur Andersen for shredding Enron documents -- that they knew that an investigation was being performed and that their responsibility to not destroy documents existed prior to their receipt of the subpoena.

(In case you don't know the whole story -- Arthur Andersen started shredding documents when informed by Enron that the SEC had initiated an investigation and stopped shredding documents the second they received a subpoena. They were convicted of obstruction charges. Those charges were overturned by the Supreme Court on the basis of improper jury instructions. The Supreme Court left open the question of when a company has a duty not to destroy documents. It is safe to say that this obligation pre-dates the issuance of a subpoena in some cases.)

There is nothing illegal about routinely shredding business documents you are no longer using. There is nothing wrong with some guy deleting files from his computer that he is no longer using. The case in this article is about someone maliciously destroying files they knew were relevent to a court proceeding with the intent of obstructing their prosecution. It's a pretty straightforward set of facts and not at all similar to what you've done.

you bought a knife...

[Simonetta]

By the same twisted logic, the RIAA could say that since you bought a knife six months ago, then you are responsible for every stabbing in the city for the past six months. Real, serious legal systems have long Latin names and judicial processes for this type of questionable legal behavior. The USA is in the process of going from a judicial system based on 'due process' to one based on financial resources. Trial by money with the more money that you have to 'contribute' to the legal process - how many l

Re:Stupid?

[m874t232]

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

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

Re:Stupid!

[mseeger]

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

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

Regards, Martin

Any lawyers here?

[grimJester]

Ok, so what does this default judgement mean? Is my intuitive understanding that the court considers guilt to be proven but the amount of damages can still be contested correct?

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

Re:Any lawyers here?

[pgpckt]

IANAL - This is not legal advice.

Will a law student do?

First of all, the court does not consider guilt to be proven. Guilt is what a criminal has. This is a civil case. What it means is that the court considers liability proven.

I am going to assume that this was a bifurcated ("two part") trial. There are two phases in a bifurcated trial: liability and damages. A default judgment resolves the issue of liability, the first phase. The issue of damages is the second phase. So yes, it is contestable, as both sides argue how much damages are needed to make the plaintiff whole.

However, if RIAA is entitled to statutory damages (i.e., $ 750 - $150,000 per violation; see 17 USC 504) then that controls the damages phase. Yhere is no need for RIAA to prove anything to get the minimum relief provided for by statute (the number of violations having been decided in the liability phase). If they want to get more then the minimum, they will have to provide some argument as to why more damages are warranted in this case. The damages could also be lowered to $200 per violation if the defendant can prove good faith infringement. However, I do not know enough about the fact in this case to know whether or not the statutory provision applies in this particular case. I (nor probably anyone else) also can not intelligently speculate as to what damages will ultimately be awarded in this particular case.

IANAL - This is not legal advice.

Re:

[voice_of_all_reason]

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

At least in theory, which this case demonstrates.

Check the toilet.

[tacarat]

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

Re:

[account_deleted]

Comment removed based on user account deletion

What the?

[CRC'99]

Wouldn't a more believable reply have been "My computer crashed and it wouldn't boot up. The only way I could get it going again was to get a friend to reformat it".

Re:What the?

[bky1701]

Best excuses of all:

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

This seems bogus.

[commodoresloat]

The court rendered default judgement because it determined that the plaintiff acted in bad faith, showing "blatant contempt" for the court and a "fundamental disregard for the judicial process." This makes no sense. Charge her with contempt of court and obstruction of justice, fine. The article claims the court wanted to deter her from doing it again and set an example by punishing her -- I'm sorry, but a week in the can will do that trick just fine. Contempt and obstruction are serious criminal offenses. But rendering default judgement here is tantamount to saying that the lack of evidence here is evidence in itself. On top of it, the court implicitly endorses whatever the hell value the plaintiffs decide to attribute to the allegedly "stolen" songs (and the court's decision can be cited in future cases as evidence that said value is reasonable). I realize the judge wants to "set an example" that evidence-tampering is wrong, but you do that by using the criminal sanctions that are already available for evidence tampering. I'm not ANAL, and I'm not a lawyer either, but this is a strange governmental endorsement and protectionism of a corporation's interests in a supposedly free market, no?

Re:This seems bogus.

[raehl]

This is the way it has to be. To use the extreme example, if I'm charged with murder, and I can get away with it by destroying evidence, then the penalty for destorying the evidence that would have proved I was guilty should be a guilty verdict for murder. Otherwise it makes no sense NOT to destroy the evidence and take the lighter penalty for evidence destruction.

The crimes for destruction of evidence etc. are meant to be in addition to the crime you're being tried for when the offender is the party on trial, and separate crimes when the evidence destruction is carried out by 3rd parties.

Or, on the flip side, if the plaintiff willfully destroys evidence, the defendent gets default judgement as well. Fair is fair.

Re:This seems bogus.

[commodoresloat]

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

Re:

[kestasjk]

I agree with you; if someone intentionally destroys the evidence of a murder they committed they should be punished for that murder. But that assumes that you 'know' that they committed the murder without the evidence. What if they accidentally wiped their hard disk? What if someone framing them secretly put a powerful electromagnet to their laptop just as the case started?

It's all about reasonable doubt; in this case (I hope) she was guilty beyond a reasonable doubt, if the jury isn't sure beyond a reas

Re:

[Jekler]

If anyone is ever rewarded for destroying evidence, witness tampering, etc. It is an open invitation to continue that behavior. Instead of learning not to commit the crime (or even not to get caught) you teach the defendant to cover their tracks more thoroughly. On the one hand, giving the defendant the benefit of the doubt is great. But if you allow them to stretch that doubt, and even actively widen the margin of doubt, then nothing at all is a crime so long as the defendant has enough time/resources

Re:

[arth1]

Yes, willful destruction of evidence is a serious crime, and should be handled as such. That means that it's the public's responsibility to prove that this crime has been committed, and charge the perpetrator with obstruction of justice and/or perjury.

However, under no circumstance should the destruction of evidence be taken as evidence of guilt for the original case. The accuser in that case should not benefit from the defender having committed another crime. It's still up to the *IAA to prove their cla

Re:This seems bogus.

[commodoresloat]

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

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

Re:

[ray-auch]

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

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

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

crime vs. crime vs. crime

[Denial93]

[sarcasm]Yay for justice![/sarcasm]

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

Disclaimer: IANAL.

Virus?

[rm999]

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

Re:Virus?

[legoburner]

Viruses have already been used in the UK to get a positive judgement in computer misuse cases. One person got off child porn charges as he had a few viruses on his machine, and as such he was deemed not to be in control of the machine and therefore not responsible.

So my

[jlebrech]

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

Re:So my

[shawb]

Physical destruction of the hard drive on police raid would be WAYYY too obvious. That's why you install powerful electromagnets in the door that pulse and fry the hard drive (and likely other internal components) when the computer is being removed from the room. Since the data on the hard drive would have "proven your innocence" and... I donno... the data was there before they took it... then the default judgement would be in your favor. I assume if they get default judgement then it would be trivial to countersue for lawyer fees. And then you can get them for destruction of property...

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

Re:So my

[masklinn]

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

Wireless... you gotta love it!

[NineNine]

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

Punishment proportionate to crime?

[damburger]

No chance. The record company is crushing somebody, destroying their life just because they can and they think it will scare people into paying their information tax. They are terrorising people. Sooner or later, someone is going to start bombing these companies.

What does this teach us all?

[castlec]

If we have reason to believe that we will in the future be charged, keep a clean hardrive that is "mirrored." If she had spent the extra $80 to have a second hard drive, installed windows and other programs, she could have turned in that hard drive and disposed of the original.

Re:

[Tim C]

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

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

Destroying the data stopped sharing!

[noidentity]

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

Bah, the judge is just miffed that he didn't get a copy of all her music. She did the right thing by putting an immediate stop to such blatant file-sharing, by the courts even!

</sarcasm>

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

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

Re:

[cpt kangarooski]

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

Well, remember that a copy is defined for copyright purposes as a tangible object. Mere data coming across the wire isn't a copy. But the downloaded information resident in RAM or a hard drive is. So the downloader is in fact making a copy, not receiving one. Making copies is infringement under 17 USC 106(1). The person on the other end, meanwhile, is liable fo

Courts and Computers...

[segedunum]

I always cringe when courts and computers collide. Whatever has happened, the fact that she may (or may not - and the evidence that it was her seems a bit flimsy) have wiped her hard drive is not evidence of here guilt - and that's effectivey what the court has judged. Guilty.

I would also love to know how such drastic action would dissuade her from doing this in the future, or how this constitutes 'blatant contempt' or a 'fundamental disregard for the judicial process'. These are serious charges, and the court has effectively asked the plaintiffs what the charges are going to be.

In such cases, where evidence is provided by computers, software or any technology, judges and juries are extremely ill equipped to decide what has, or may have, gone on, or what may have gone wrong. Worse, judges, and especially juries, are extremely susceptible to suggestion from popular myths, perceptions and so called 'experts' who can assert themselves.

So, if someone...

[CrazyDuke]

...has a porn collection, gets their hard drive subpoenaed, had a file sharing client installed at somepoint on the PC, and deletes the pron because they feel they don't want their fetishes being a part of the public record; they are guilty by default?

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

[trip11]

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

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

[MirthScout]

That would probably only destroy the circuit board on the drive. The data on the drive platters should still be fine. They'd just buy another drive of the exact same model swap in the good circuit board and access your drive anyway. OK. They might have to do that several times until they notice what you've done to the power connector but they would get the data.

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

[jimicus]

Seeing as the circuit board in question generally has the power connector soldered directly onto it, that's a non-issue.

However, "buying another drive of the exact same model" is interesting. Seems to me that if you combine the "switch the power connections" with "use an antiquated hard drive which they will almost certainly be unable to source another of" would solve the problem.

Suddenly I forsee a huge market in 20 year old 5MB hard drives.

Dumb, dumb, dumb

[99luftballon]

In terms of a defence wiping your hard drive is pretty much an admission of guilt. You're saying to the court that you don't want to allow them to see any evidence and it's hard to see how the judge could have done otherwise. But it sets a worrying legal precedent. I use Eraser software to regularly overwrite deleted sectors of my hard drive and it could be argued that if I deleted a downloaded song and then overwrote the sector repeatedly I was tampering with evidence. Surely the best defence would be to find out what songs you are being prosecuted for and then buying the album/game/DVD. Arguing in court that you tried the music and so bought the album, thus actually profiting the RIAA and its minions, would make an interesting defence.

Re:

[man_ls]

This doesn't set a wrong precedent at all -- the Court ordered that the Defendant turn over their hard drive for examination.

After the order was in place, the Defendant then elected to destroy the contents of their hard drive, meaning the prosecution would receive nothing of value in response to the order.

I think this sets a very good precedent -- if you thumb your nose at the legal process, you can expect to lose instantly. The entire system operates on the principle that both sides will respect the decisi

Re:

[shark72]

On behalf of all Americans, I hereby apologize to the world for our collective utter ignorance of our own laws.

"Why isn't action protected by the 5th amendment??"

This is what the fifth amendment of our constitution states (boldface mine; as our founding fathers did not have a "B" button on their 18th century word processors):

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or nav

This is where the theft analogy falls apart

[zoeblade]

If copying a copyrighted song counts as theft, does deleting the evidence count as giving it back? Shouldn't that warrant a reduced sentence?

Next time you reinstall windows or linux...

[eagl]

Make sure you retain a lawyer the next time you reinstall windows or linux, because you never know if the RIAA is going to hit you at random.

I recommend suing Bill Gates the next time he buys a new hard drive, on the theory that he's deleting evidence. No actual proof is required, merely wiping a hard drive (identity theft protection, right?) is PROOF he's up to something!

This is why you keep a second boot drive and USEit

[plasmacutter]

Perfect way to avoid detection.

When you get your computer, get a second boot drive and mirror the installation you have.

One random day a week load this second boot drive into your computer and actually USE it for that entire day.

if you receive a subpoena, replace your normal boot drive with your semi-sanitary mirror, bury the original hard disk in a tupperware container someplace really hard to find until they inevitably dismiss your case for lack of evidence.

Stupid RIAA meets Stupid Woman

[paladinwannabe2]

Look, I despise the RIAA as much as the next Slashdotter, but I can't fault the Judge's logic in this case. The Judge requested evidence, the woman destroyed the evidence, and I don't think that anyone here even has 'reasonable doubt' that the woman wasn't pulling songs off BearShare. If I were the Judge I would find her guilty as well.

Re:If you want to understand their view

[Mr2001]

Just because it's hard to come up with certain information doesn't mean it shouldn't be "Free". Consider all the work that went into calculating the speed of light, or pi, or the age of the universe... now imagine if everyone who wanted to use any of those figures had to pay the heirs of the people who discovered them!

Re:If you want to understand their view

[Mr2001]

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

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

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

Hoarders love to repeat that romantic gibberish, but sorry: information is information. The bytes on a CD are, guess what, information. If you call someone on the phone and read them off the list of digits, eventually they'll be able to put together their own copy of the song. The desire to prevent someone from sharing those digits is no more justified than the desire to stop them from sharing the digits of pi.

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

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

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

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

Re:

[Kombat]

The bytes on a CD are, guess what, information. If you call someone on the phone and read them off the list of digits, eventually they'll be able to put together their own copy of the song. The desire to prevent someone from sharing those digits is no more justified than the desire to stop them from sharing the digits of pi.

What if those digits, when fed into a JPG renderer, form a picture of child porn? Is that OK in your mind, since it's really just a number? In fact, an entire child porn movie could be

Re:

[QCompson]

Dude, everyone knows the best way to win an argument in the 21st century is to drag in terrorism and child porn.

Example:

Debater A: Drilling in the Arctic Wildlife Refuge is only a temporary band-aid for America's growing energy problem. It will do nothing to stop our dependence on foreign oil.

Debater B: If you are so against drilling in the Arctic for oil, please explain why you want the terrorists to have all our extra oil money so that they can continue to murder innocent civilians. In addition,

Re:

[goldspider]

Your fantasy that artists should be forced to share their creativity with the rest of the world without compensation for their efforts is every bit as romantic as the grandparent. And by "romantic" I mean nauseating.

"Every artist draws something from the work of others; no one grows up in a vacuum."

Everything ANYONE does draws something from the work of others. Does that mean that NOBODY is entitled to compensation for ANYTHING?

Re:

[PiGuy]

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

Copyrights exist to encourage artistic expression, not suppress it. There's little incentive to spend your life creating art if you can't make money from it. Without copyrights art would all but disappear; would-be artists would be forced to spend their time making a living some other way.

Re:

[kripkenstein]

Wow, indeed:

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

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

Re:wow

[alx5000]

I'm still impressed by what can be considered copyright infringement under the US law, and how exaggerately high the compensation for damages can be.

If they were to be fair, I think they should charge with $1 for each Mp3, since that's what it would cost her to buy them through iTunes (or maybe $2, or $10, since she could make copies, but nothing near $150,000), and the costs of the trial.

Re:

[nelsonal]

In order to prevent a crime you must make the penalty equal or greater than the gain divided by the chance of getting caught. The retail value of the songs may have been $500 or so, but since everyone knows the chances of being caught are nil piracy occurs frequently.

Re:wow

[badfish99]

In order to prevent a crime you must make the penalty equal or greater than the gain divided by the chance of getting caught

But for the justice system to be perceived as fair, you must make the penalty commensurate with the crime. Otherwise you end up with a situation like this, where people are punished very severely for crimes that are so trivial that the authorities do not usually bother to investigate them.

A similar phenomenon could be seen before the establishment of modern police forces, when criminals would be hanged or transported to Australia for trivial thefts. At the time, this was justified in the same way, but looking back on it now, we regard it as barbaric.

Re:wow

[computational super]

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

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

Re:

[ahknight]

It was a joke, dumbass.

Re:wow

[computational super]

forcably deported to an undeveloped country

What country are you calling undeveloped? Australia has Steve Irwin [discovery.com], John Howard [wikipedia.org], kangaroos, almost 200 acres of arable land...

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

Re:wow

[alx5000]

I think copyright infridgement should be just that: I infringed someone's copy rights. I think it should apply when I'm trying to earn money using someone's work without their authorization, or when I'm trying to claim the copyright on something ilegitimately.

I think those concepts should be clearly separated from "getting a song at no cost from some other peer". Maybe you'd like to claim it's also ilegal, but I don't think "Copyright infrigdement" can apply to both.

PS: The difference? The money involved.

Re:wow

[MirthScout]

Examine the word; copyright. It refers to the right to copy. If you don't hold the right to copy something and you copy it anyway, you have committed a copyright violation. Money is not a factor.

I'm not saying I agree with the way it works but there you have it. And the penalty isn't for how many MP3s you may have downloaded to your drive, it is for how many times they might have been downloaded from you. It is pretty harsh.

Re:

[NormalVisual]

Based on that very simplistic definition, any use of a work in digital form would then be a violation, since copying is necessary step involved in its intended use.

Re:

[ahknight]

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

Re:

[HiThere]

Now examine the term of the copyright at the time the first US law on it went into effect. And examine the penalties. Now examine the current term of the copyright ant panalties.

It shouldn't take you long to decide that the system is broken.

Re:

[Iron Condor]

The problem is that "copying" the file without redistribution or profit is confused with "copy"right when it really is petty theft.

No, it is not. Copyright violation is not theft. Period. End of story. If copyright violations were theft, then we wouldn't have any copyright laws, because theft is already illegal (in case you hadn't noticed yet). It was already illegal long before the notion of "copyright" ever entered any legal text. As a matter of fact, copyright laws were created exactly because the exi

Re:wow

[Kythe]

The entire purpose of copyright, as allowed by the U.S. Constitution, is to facilitate creators of works to earn money off their creations for a time. So yeah, copyright is about money (as a means to encourage further creative work).

Good or bad, copyright is, indeed, about money.

Re:wow

[DaveV1.0]

From the constitution:

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

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

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

Re:wow

[Jtheletter]

Though with most filesharing software you automatically share the files with everyone else. She could have had thousands of songs, and thousands of people could have downloaded from her.

Emphasis mine. This is the problem as I see it with the damages being awarded for these infringement cases. Even if you prove the person had copies of the songs on their computer and were obtained through copyright infringement using a P2P service, where is the proof that thousands of others actually copied the songs from the defendent? And what about if the sharing feature of the P2P app is turned off? The courts are not in the business of punishing "could have" cases (except for this recent NH judgement [unionleader.com] which is rediculous, with the dissenting judge plainly stating no crime was committed or proven). So perhaps I should say the courts shouldn't be in the business of punishing "could have"s except where laws already allow for that sort of thing (e.g. attempted murder). But there are no laws that I am aware of that make the potential to copyright a crime. Otherwise, anyone owning a copy of a piece of media could be prosecuted because simply having the media would meet the low standard of having the ability to infringe copyright. IMHO if the RIAA wants damages of $150,000 per song they need to demonstrate that the defendent caused that much damage, not that they "could have" caused that much damage. If I own a gun and I'm arrested for some other crime, say tax evasion, can I also be convicted of attempted murder because I could have shot someone?

Re:wow

[duvel]

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

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

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

Re:wow

[Ender Ryan]

If they really charge some poor woman $150,000 USD for down/uploading 200 songs... I'm going to snap, and murder some people.

Ok. So maybe not. I have too much to live for. But, with the level of injustice rising so high, I can see someone with less to lose to do something like that. Easily.

I mean... what we're talking about is potentially ruining someone's life.

Civil suit, not criminal trial

[Rocketship Underpant]

Your confusion stems from the fact that the person is not being prosecuted. Remember, copyright infringement is not theft, nor a criminal act. It's a civil offence. This is a civil suit.

Corporations love civil suits. Individuals can't afford to fight them, and seemingly logical courses of action (like cleaning your hard disk) will get you in trouble if you don't know the intricacies of the law -- and law in modern democracies is designed to be incomprehensible to the people it governs. The requirements for

Re:

[digitalhermit]

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

Re:

[Dhalka226]

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

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

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

Rather, what she did is knowingly defy a court order. The court ordered her to turn the drive over as evidence, and she destroyed

Re:sick of it

[LaughingCoder]

Put actors and actresses and music artists at a cap of 150k anything higher than that is just a little bonus. They shouldn't be expecting millions on a small amount of work. This goes for athletes as well. Maybe if we do that, there will be better movies and albums out there.

Huh? Do you honestly think that if you take away the incentives to *get rich and famous* that there will be better movies and albums? Do you really believe that? Were you not paying attention during the last 50 years as one centrally-managed economy after another failed? Did you not notice that the products produced in those countries were orders of magnitude worse than those produced in free market economies - and losing ground with each passing decade? Did you notice that virtually all innovation sprung from countries with free market economies? Incentive breeds competition, which leads to dramatic product improvements and innovations. If you take away the incentive, everything stagnates.

With the RIAA and MPAA if they had it their way, we wouldn't have CDs or DVDs to burn on.

But we do have those, so they didn't have their way. So what exactly is the problem? Their power fades with each passing year. We are witnessing their dying gasps.

Re:DBAN

[mwilliamson]

This will look quite obvious as hard drive slackspace will have a recognizable pattern on it. You'd probably be better to dban it, then zero out the drive...however, that is pretty damn obvious too. What you really need is to dban, zero out, then copy a bunch of typical files into place and delete, many times.

This isn't easy to do.

Instead, if you have an encrypted filesystem placed within another encrypted filesystem you'll have a much easier time hiding the presence of particular data. (there is no detectable difference between the second encrypted filesystem and the randomized slackspace of the first filesystem).