RSSRIAA defendant sanctioned for destroying evidence
By Ed Oswald | Published August 27, 2008, 4:41 PM
Defendant Jeffrey Howell was scolded by an Arizona court earlier this week in a move that could potentially give the recording industry a decisive victory.
Originally, the Howell case was the flash point for discussions surrounding whether simply making available songs for download through a shared folder constitutes piracy, or if actual downloading by a third-party needs to occur. For now, however, it's about destruction of evidence, as a case that had been been going the defendants' way -- in one turn of events already -- turned south once again.
Jeffrey Howell and his family were initially found guilty of piracy in August 2007, in a case brought forth by the Recording Industry Association of America. At the time, a summary judgment was entered which found Jeffrey Howell guilty of using the Kazaa P2P program to download pirated music.
Howell's fortunes changed in April, when Judge Neil Wake reversed his earlier ruling, to say plaintiffs needed more proof of malfeasance. Simply making 42 MP3 files available through Kazaa's shared folder wasn't enough -- the judge said proof had to be given that people actually downloaded from that folder.
Wake had ordered Howell to take all necessary steps to preserve evidence. However, RIAA attorneys responded that someone had attempted to wipe Howell's hard drive clean of any evidence Kazaa was ever installed.
According to a late July filing, the entertainment industry said forensic tests indicated Howell had ignored Wake's orders. He had allegedly even gone as far as to use file-wiping programs to attempt to cover evidence that pirated files had ever been installed on his computer.
"The Court finds that the destruction of the evidence after repeated and explicit warnings about the obligation to preserve evidence was in bad faith and therefore warrants appropriate sanctions," the minutes of Monday's proceedings read. "The extent of sanctions is within the Court's discretion."
A written order is expected to be released, and the court said it would also entertain the motions to dismiss that are currently on the table.
It now appears as if Howell's chances of winning the case have once again dwindled, from slim to none. The last time a suspected pirate was sanctioned for destruction of evidence -- in the MPAA's case against TorrentSpy -- a summary judgment was granted for the plaintiffs.
Another unintended effect is that the Howell case may have been one of the RIAA opponents' best chances of getting the "making available" defense to be a viable one for those sued by the entertainment industry.
Most recently, this defense had been used by Joan Cassin's lawyers, in a case for which the RIAA later asked for a dismissal. The defense is also being employed by Jammie Thomas' lawyers in their efforts to seek a retrial for their client.
The move by District Judge Wake has not already won the case for RIAA, contrary to reports.
Idiot. Yeah, I agree with txnascarguy, water hose...or even take out the drive, zap the mobo AND drive with electricity/magnets, and call it a day. Or...heck, if it's going to cost you MILLIONS... move the thing to a minibar (go buy one for $600 if you have to), move your lawn care/mower/gas out to the minibarn with it and say it was for storage purposes to fall in line with Court Order, and burn the place down. I don't know of ANY program that can recover data from melted platters...geez. Just to be safe, take the drive out and blow-torch it first. Then throw it back in and burn the place down.
Score: 0
Good Grief... Take a water hose to the computer. Claim it on a renters insurance claim. Go buy a new computer!
Score: 0
When a program causes me a millionth as much
trouble as Kazaa has caused this guy I _don't_
use its uninstaller, I use one I trust and run
a registry repair program.
This doesn't count as "file-wiping programs" in
my book, but would to a plaintiff's lawyer.
For this case had I been ordered to not destroy
data I would have by coincidence done so before
getting the notice, and for the other side? dude
would not have any access to his computer, and
I would give the notice while the bailiffs were
carrying it off.
Score: 0
Okay, can anyone argue that Howell just kicked himself in the nuts over this one? Score one for RIAA.
Score: 0
So basically the RIAA & court wanted him to retain the evidence by keeping the music and file sharing program active since a year ago? I understand the arguments here about putting a new drive in, etc, but someone should have given this guy a hand doing that if that's what they wanted. The average non-geek routinely craps up their computer and needs someone to fix it up which includes uninstalling stuff or even reinstalling Windows occasionally. It should not be expected that a running computer should be required to retain evidence like that even if he wanted to retain it.
What I really don't get though is if the RIAA would have used it against him if he kept sharing the music after receiving his computer back, yet that is what they now expected him to do. It's a catch 22.
Score: 0
Yeah, they not only wanted him to retain the drive "as was", but of course they wanted him to continue sharing files illegally...
Yup, and 'they' are obliged to provide him with assistance....
Its nice to see the reasoning standards on BN reach a new level of absurdity!
Please tell us that this response is an attempt at humor and not a serious result of an attempt at reasoning!
Score: 0
Give me a break with the sarcastic comment. I'm sure what was meant by "someone" is a friend or someone. It would be "absurd" (to use your word) to expect the court or the RIAA to provide someone. What the court and RIAA probably expected him to do was shut off the computer and not use it. If anyone was smart, they would have used dd or something to take a forensic image of the disk and then not worry about it.
Score: 0
Couldn't the RIAA afford to buy a replacement computer so the court can keep the evidence unaltered? O_o
Score: 0
It's one thing to screw with the RIAA but a completely other thing to go against a court order....
He deserves to get done just out of plain stupidity.
Score: 0
Give me a break they returned his property from evidence and its his fault for using his property? if they wanted to preserve anything they should have retained the HD from the computer and returned the rest.
Now I agree he should have just used a new HD if he was ordered to keep the old one, but I can also understand formating and reinstalling after getting back his equipment from the government. I sure as hell would have as well to be sure the SOBs didn't put anything I don't want in my computer. Again I would have just got a new HD though IF he was actually warned at all. IMHO he prob was and he just said its my s*** I will do what I dam well want with it. That would be the typical response I would expect from someone so inconvenienced and put out to pasture by these SOBs with unending funds to go after anyone no matter how long it takes or how many times it takes to get a ruling in their favor.
However I fault the state on this one. if they wanted that evidence after a not guilty ruling or dismissal or whatever it was, they should have retained the hard drive at a minimum in evidence lockup. That is not his fault that he did what any FOOL would do after getting back his property. He started using it again.
As to the other cases with the log files. I know I wipe all my logs regularly just because I dont like having to read through hundreds of days of logs to find something that prob happened yesterday... I wipe my logs weekly, and when I need to find something I don't till I find it. THEN after I find what I need I save that part and wipe the rest. again it makes searching though logs on a personal level much easier. I would expect any person to do the same if they so choose. Companies may or may not want all that information. most don't want it anymore then we do, but some have a mandate to keep it. SO be it. But the government should not fault them if they have a policy of clearing logs regularly when there is nothing worth tracking in their opinion. Meaning error free... no need to retain. Of course the government is blatantly against that.
Score: 0
Everything after "Now I agree he should have just used a new HD if he was ordered to keep the old one" is worthless.
The idiot is liable for his misconduct. Period. despite the wacko rationalizations from so many.
My question is what method was used to erase the information, as modern forensic procedures should be able to recover all but the most extreme cases of erasure, and then they can still rec0ver most of that from the surrounding EM shadow.
Score: 0
The surrounding EM shadow huh?
*chuckle*
Score: 0
Did you watch that on CSI?
Score: 0
Too much TV damage your brain for sure.
Score: 0
Foxfyre a typical Defrag often forensically destroys the hidden files on the drive that was previously errased. Heck even installing a large app could have done it if he just deleted the directory and installed something new.
In his case I do believe he disreguarded the order and formated the drive and put an OS on it and started over. As most would. If he did that he had the Knowledge enough to know how to remove and put in a new HD. If he didn't and it was a result of normal novice usage and he had no idea how to put a HD in. well that's where the judge has to determine.
I still think if the government wanted it they should have retained the evidence themselves. Its called chain of custody. And by them giving it back to them that was broken from the start so anything they got would be inadmissible. IMHO the RIAA prob put something on his machine to track his actions online and was hoping he would be foolish enough to just use the thing so they could get something against him the next time the seized his machine. Obviously they had nothing previously. Since he was NOT a fool he formated his drive removing the malware and the industry seized his machine later to find it clean. Entrapment failed. Now they are counter suing for destruction of evidence. Something that is normally reserved for Police or Feds that break chain of custody of evidence resulting in a dismissal for lack of evidence. Not against plaintiffs that are using their own property. The point is there was not enough evidence to begin with, they tried to trick him into providing them with some, and he didn't take it. So now they are crying foul because their entrapment scam failed. Chain of custody should have NEVER been put back in the hands of the plaintiff if it was ever going to be used in a pending case. THAT is where the error was. Anything else is foot dancing to drum up more evidence then they actually had or the case would not have been dismissed. And THAT is a 4th amendment violation of the Bill of Rights.
Score: 0
Well, Howell belongs on the wall of the most stupid accused criminals. Being told flat out not to destroy evidence, he goes and does that. He was on the verge of winning and now he's screwed the pooch. He deserves what he gets because that means maybe one less idiot's genes in the gene pool and god knows we have more than enough already.
have a nice day:)
Score: 0
Amen!
Score: 0
so the RIAA destroyed the evidence because it knew that it had no other way to win the case?
Score: 0
This is related exactly to the question I was thinking about. Who is it exactly examining this hard drive? If the drive has been in the hands of both parties in this case, how can they prove which party did the tampering and when the tampering occurred? Isn't it possible the deletion attempts occurred prior to the courts order to preserve the data, and possible those attempts even predated the charges being brought against the defendant?
And what is the crappy file-wiping programs that were allegedly used so that I know not to ever use them?
Score: 0
At least they are consistent.
They think they are entitled to effectively misappropriate others property, so why should they feel like they should follow any other rule of law.
Score: 0
Yeah, its only business....
Score: 0
How can they process it if there is no evidence, in murder trials if the evidence is destroyed, its gone, find a new way to convict. Why is this any different? Proper term should be erased as he did not physically destroy it.
Score: 0
The evidence no longer exists. From a legal standpoint, it has been destroyed.
Method: Erasure.
(No, not by being forced to listen to 80's pop music...)
Score: 0
I certainly hope you are not so naive as to think this is a sufficient and credible defense!?
Score: 0
Reminds of the convoluted explanation given by Nixon as to why 17.5 minutes were missing.
He can be charged with tampering with evidence- a slightly more serious offense then paying a fine but I doubt they would do that. The RIAA will collect its bounty and have a good laugh.
Have a nice day :)
Score: 0