Thursday, August 24, 2006

Where Defendant Wiped Hard Drive in Violation of Court Order, Default Judgment Awarded RIAA in San Antonio, Texas

In Arista v. Tschirhart, in San Antonio, Texas, the judge awarded judgment to the RIAA because the defendant -- in violation of a court order directing her to produce her computer's hard drive for inspection -- had the hard drive "wiped" first, thus deleting song files that had been downloaded. The court noted that this "wiping" irreparably prejudiced the RIAA because the only evidence it had without the hard drive was "scant and piecemeal".

August 23, 2006, Order Granting Default Judgment*

Commentary: Frankly, I didn't see ANY evidence in the court's decision that DEFENDANT did it. I think she had teenage and adult children who may have done it. Why should she be punished because of something they may have done? The judge takes a pretty big leap from the fact that it was done to the unsupported conclusion that it was the defendant who did it.
-R.B.


Additional coverage & commentary:

Tech Dirt
p2pnet.net
DigitalMusicWeblog
Slash Dot
Ars Technica
p2p file sharing

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

10 comments:

BasicTek said...

Sucks to be them, sounds like the RIAA is gonna win possibly it's biggest victory yet on this one.

I guess they should have kept a 2nd hard drive imaged prior to them using P2P software.

Hate to see how bad the damages will be on this one.

Colin Dean said...

From what I can tell, it honestly sounds like the defendant simply used the Delete key to delete the data, emptied to recycling bin, and defragged.

The verbage 'wiping the hard drive' is generally meant to mean reformatting the hard drive or zeroing the hard drive. Paragraph 3 of page 2 further proves this when it says that the expert was able to find the defendant's supposed iMesh username.

Also, line five of paragraph two states that the first 'wipe' occurred in December 2006. Clearly, then, this wipe has not yet occurred!

C said...

Well, by this i'd be royally screwed if anyone supoened my hdd... practically any information thats identifyable or could be used by spyware to target ads (this includes mp3s, visited websites downloaded software i no longer use etc) gets wiped from my drive using very powerful programs (my current fav being pgp8 thou spybot S+D's shreader comes in a close second)

On top of that alot of my data is encrypted... all i'd have to do to render that data unusable is microwave my usb stick :p

i'm just paraniod but that could be used against me kinda sucks i guess.

Ray Beckerman said...

Dear "c":

Not really.

It just means if you are in a litigation in which the contents of your hard drive are in issue, you should shut those programs off
until the contents are preserved.

Ray Beckerman said...

Frankly, I didn't see ANY evidence in the court's decision that DEFENDANT did it. I think she had teenage and adult children who may have done it. Why should she be punished because of something they may have done? The judge takes a pretty big leap from the fact that it was done to the unsupported conclusion that it was the defendant who did it.

Alter_Fritz said...

and there are even more points that would speak in her favour i think

If i understand it correctly, then there are cases where this telefonagent of the settlement center had told those people they phone that they should delete the songs they have donwloaded and that they also should delete the software so that they will not share files any longer?!

So when those guys that work for the Plaintiffs told you to delete the stuff, how can that be something that will punish you?

And where in this court document does it say that it was the Defendant herself who deleted the data and the software?

Even I -who have no real understanding of those issues- understand that whiping a harddrive and thereby "destoying evidence" as the judge calls it is something different then simply using DEL-Key or some deleting software, clearing the bin and defragment the harddrive afterwards to use the remaining space more efficent!
THATS exactly what the RIAA guys are telling those accused peoples thru their "Settlement Center" according to my hear say Information.

BasicTek said...

Well after reading RB's comments I would conclude the following.

1) The use of the term wiping the hard drive is completely irrelevent, and just plain wrong, there was no wiping as stated.

2) The defendant or someone else did delete the P2P software, but not well enough as the RIAA expert did find (probably left over registry info about the P2P account name) linking them to the initial claim.

3) The assumption that running defrag is an effort to hinder the investigation is completely ridiculous, but they stated that the defendant said they ran defrag automatically, and they found from the logs this was untrue. Get caught in a lie and make it worse.

Would have been better to say my hard drive was performing badly so I defragged. Defragging has NOTHING to do with wiping a drive.

It's obvious that the judge either has no concept of technology or is just siding with the RIAA because they greased his palm the most. In either case this is a very bad sign that big $$$ will get the judges vote no matter how much they speculate.

lib said...

what are "adult children" ?

Alter_Fritz said...

http://www.google.com/search?q=define:adult&defl=en

and Ray is a lawyer. So he defines children like lawyers do!
"CHILD, CHILDREN, domestic relations. A child is the son or daughter in relation to the father or mother." (source:http://www.new-york-lawyer.ws)

Forensic_Guy said...

Actually Defragging can and is used to wipe a drive. The owner of the computer is the responsible party. I don't however, believe that the court had the proof to rule like it did. As a word of advise, there is only one shredding program that totally deletes data, and neither S&D or PGP is it ;)