Wednesday, August 06, 2008

In Atlantic v. Howell RIAA moves to strike defendant's answer for "spoliation of evidence"

In Atlantic v. Howell, the RIAA has made a motion to strike the defendants' answer for "spoliation of evidence".

Order setting hearing date
Plaintiffs' motion to strike answer for spoliation of evidence
Exhibit F - Doug Jacobson "report"

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


Anonymous said...

Do as we command...we have already intruded your private home computer... and now you must do as we command...We have already copied your hard drive and files from your computer, and have viewed those files without your as we command...we own you now, so do as we must play fair, but we don't have to, do as we command...bla bla bla

Alter_Fritz said...

If I were to forget everything I know about the incompetence of the so called "expert" Dr. Jacobsen and my knowledge that those plaintiffs tent to exaggerate simple harmless incidents as the most sinister things a defendant can do (e.g.the claiming of spoilation from this expert because defendants computer in a different case simply had run defragmantation cycles after the recieving of "the letter") I would say going by the statements of Plaintiffs that does not look good for Howell.

However, since I do know so much about the borderline to incompetence state of competence of Dr. J. I would like to ask a few serious questions and would apriciate if someone really knowledgeabe can help me/other likely interested parties out!

The plaintiffs state:
[...] were not created as part of any ordinary Windows back up process, and contain no data regarding the original location of the files on the hard drive or when the DVDs were made. (Jacobson Rep. iT 39, Ex. F.)
The DVDs he produced are not tre back-up copies. (Jacobson Report iT 39, Ex. F.)

What would be an "ordinary Windows back up process"? As far as I know the home versions (!) of Windows Operating systems do not contain any kind of really working backup software that would be able to initiate an "ordinary back up process"

when i backup data I use windows explorer and drag and drop the files i want to backup onto the DVD burner symbol.
Is that a backup that would satisfy plaintiffs?

what i further note that when i use for example nero burning rom to create a copy/a backup of files there is this option that the files on the DVD will have the same creation date/time information as the ones on the HDD. which makes sense I guess if you want to know the date that a file backup is valid as being from. there is no info when the dvd was created, but when the files were that i backuped.
So what problem does the "expert" Dr. J has with this logic way of doing it?

I'm not sure, does Backuped files written to a DVD contain infos in their metadata about prior location? that would be new to me.

So I guess someone really knowledgeable about backup procedures and capabilites under windows home OSes is needed to counter this allegedly again junk science of Dr. J.!

Anonymous said...


Do you have the original complaint? I cannot find it in the list, and I wanted to see the original names on it.

This motion makes reference to his wife being the account holder, and to defendants being added and dropped. What I wonder is: Was the original complaint filed on 8/16/2006 against just her, or both of them? It kinda sounds like he was NOT part of the original filing, since their normal MO is to sue the account holder.

If he was not in fact part of the original lawsuit, sounds like all the talk about him being subject to a order to keep evidence would be false if in fact he was not named at that time.

As to the statement that he willfully re-installed the operating system, and ran wiping tools, I can see a valid reason for both. Wiping tools such as the one described are often used for the purpose of completely wiping viruses and worms from a system in an attempt to avoid a complete reinstall of the OS. Personally I do not do such things, but perfer to remove the drive and place it in a system as a slave drive solely for the purpose of copying any data of value before reformating and reinstalling after a virus attack. It is very hard in Windows to completely remove some viruses.

Most people who are forced to reinstall Windows do so because the system will no longer boot or operate correctly. They do NOT do so to hide evidence. Also, the timing of when Windows will quit is an unknown. Likely he needed to get the machine going again, and just did what was required, which in the case of most machines of this era is a "system restore disk" provided by the manufacturer. I doubt he would done what is alleged if he was solely interested in covering his tracks.

If he was trying to cover his tracks, he would have used the wiping program on the entire drive, which would as a side effect wiped out all traces of the wiping program. He would have also set the BIOS date prior to the alleged downloading, choosing a date shortly before the computer purchase date, before restoring the system back with the system restore disk or operating system disk.

Since they appear to be able to tell the date he reinstalled the OS, it is very unlikely this was done to hide anything. The reason I say this is had he set the date back, he would have had a "clean" machine to present with no evidence of KaZaA or song files, and an installation date prior to the case. Because the OS install date would have been prior to the filing date, they with that drive would be unable to allege he wiped anything. Thus, they would have had no case whatsoever. Instead, what they have is consistent with a drive reloaded due to Windows Failure.

I think that they are just mad they might lose the case for lack of evidence and are doing everything to win at any cost.

Even if his answer is struck, cannot this still go to a jury for a verdict? After all, just like the other cases I doubt there is any evidence of a download to anyone but the agent of RIAA, and no evidence any of it came from his hard drive. And of course without proof of "copies or phonorecords", the Plaintiffs case is quite lacking. Even if the drive was untouched, where is the evidence of downloading by another person who was NOT an agent as the law requires?


Anonymous said...

It would be nice to see Jacobson's report.


Rick Boatright said...

So let me see if I understand.

Mr Howell is a sophisticated and extremely competant computer user.

1) who didn't know enough to set his hardware clock date to BEFORE receiving the letter before re-installing the OS.

2) who was too stupid to DELETE THE FILE SHREDDING PROGRAM he used to "spoil" their evidence.

What I'm really _really_ interested in is on what basis, if the registry was cleaned, if the file shredder was run, if the logs were gone, on WHAT BASIS is Dr J saying that the mp3's in question where in Mr Howell's Kaza folder?

We already KNOW that Mr Howell has ADMITTED to using Kaza to share pornography. And he SUPPLIED them with his porn collection.


I call bullshit. (although, it is a POSSIBLE scenario, but then, if it's true, I would NOT refer to Mr Howell as a sophisticated expert computer user, but rather as a desperate loser who made incompetent vague attempts to cover his tracks.

One position or the other please.


Anonymous said...

"As a sophisticated computer user, Defendant knew that merely copying files would not preserve evidence."
Ray, I think you should quote this in your case where you were given mere copies of the text of files from MediaSentry.

Assuming defendant thought he made proper backup DVDs, whatever that means, subsequent actions were in good faith, yes?


Anonymous said...


There is no "ordinary backup process". The RIAA probably wanted an image of the entire hard drive, but this is not a normal thing.

The words "true back-up copies" don't have any technical meaning. Although, the RIAA may have defined it in the deposition or report.

The backup you describe, of dragging files to a DVD, would not satisfy the RIAA, because they want an image of the hard drive, not a backup. So, it's strange that they use the word backup.

Typically, when you burn files to DVD, the creation date is that of the DVD.


Anonymous said...

Ray, did these guys seriously write, "Plaintiffs should be entitled ... to a presumption that Defendant used KaZaA to download Plaintiffs' Sound Recordings ... and to distribute Plaintiffs' Sound Recordings."?

They have asserted no evidence of distribution, nor would the computer have shown any, so this looks a lot like "making available is infringement" to me.


Anonymous said...

Howell has a simple course of defending himself here... his counsel just needs to demonstrate the process of installing KaZaa or a similar P2P client... In my experience using them, they generally try to add the "My Music" and "My Videos" folders to their media locations. If he or someone else installed the P2P software and took all the default options, it could very well be that his files were shared inadvertently, and that by correcting the situation he was in fact trying to act in good faith to remedy an unintentional infringement. Would the RIAA's position really be that they WANTED him to maintain his computer in a state that continues to encourage or allow people to infringe their copyrights?


Unknown said...

When it comes to "True backups"
Unless you own a tape drive, or have ghost (which is not free) in order to burn cd/dvd images or an extra computer to copy the image of the harddrive on, there is no way to do a "true backup" in windows xp or vista home.

Copy files to a DVD does not preserve their location within the filesystem. There isn't even any proof of where they came from. You can't even prove they came from a specific machine, with burning data files to cd.

Again, without 3rd party software that is not free, there is no 'true backup copies'

Anonymous said...

According to RIAA logic because the operating system was reloaded and there is no evidence there now there absolutely MUST have been evidence earlier that has been spoiled.

According to RIAA logic the Defendant is guilty precisely because there is no evidence of the files they insist were previously present. The lack of evidence now PROVES that the evidence existed before.

According to RIAA logic the Defendant "deliberately removed critical evidence from his hard drive during the course of litigation." You must trust the RIAA here that everything we said was there actually was there, and now it's gone, and although we cannot prove that it was there without finding it there we know it was all there before it was removed. Our evidence that it was there isn't enough to win our case, but it ABSOLUTELY PROVES that it was removed. How our evidence proves beyond any doubt that this evidence was removed from the computer, but we can't win our case on our evidence alone and so must demand default judgment because the Defendant removed evidence we shouldn't even need since we absolutely know that it was there in the first place...

Is anybody even able to follow this twisted, faulty logic? The RIAA saying that we can't win our case without the evidence on the actual computer hard drive, but we can absolutely prove that it was there before it was removed and this won't be sufficient? The RIAA can either prove it was there, or they can't.

If they can then they don't need it to be there any longer since they can make their case otherwise.

If they can't (prove their case with what they already have) they should be slapped down HARD over this filing.

You really can't have it both ways, as hard as the RIAA is trying to bend things to accomplish this.

According to RIAA logic the moment they send a letter to your ex-wife - not you, and not having actually filed any suit at all that names either of you – you then have a DUTY to preserve evidence. This is just a lawyer letter, not any court filing, and the suit doesn't even name you specifically, but you should now IMMEDIATELY STOP USING YOUR COMPUTER, place it in a sealed bag inside a sealed crate inside a locked safe deposit box until the RIAA gets around to imaging your hard drive. Anything else you do may constitute spoliation of evidence.


I mean it's not like either of you were actually named in a lawsuit yet. This seems to be a rather cart-before-horse preemptive wishful demand that you hang yourself now because we don't have all the legal machinery in gear yet that would ACTUALLY OBLIGATE you to do these things we now demand. In fact, we didn't even hear about your lawsuit (are you speaking of the initial Doe suit which you dismissed anyway?) in the proper way of being served in the first place, so who are you to even demand such obligations on our part? Until I'm served with papers naming me specifically I am not at all aware that any lawsuit has been filed against me.

According to RIAA logic because they can't even prove that the KaZaA program was ever installed now, they are entitled to a "presumption" that it was, and that "making available" equates to distribution equates to a guilty verdict. This is only valid if "making available" is actionable which so far it is seeming not to be. In this way they are truly (mis)leading this judge into a Manifest Error of Justice.

According to RIAA logic this Defendant isn't entitled to a jury trial on this matter despite what the Constitution may say that everybody is entitled to a trial by jury of their peers (which ought to be other P2P users, but probably will have every one of them excluded). Instead the court should enter a default judgment rather than let a jury decide what is correct in this matter. The judge should now become the jury and executioner (in the sense that the judge will also set the punishment) in this case and save the RIAA the need to ACTUALLY HAVE TO PROVE THEIR CASE.

In fact the last is the most depressing point of all. The number of times single and technologically inept judges have denied the Defendant their day in court is an outrage. And when they do get their day in court, how the RIAA has snowed the judge (singular in this case) into giving incorrect jury instructions the first time around.

The courts are proving truly incapable of dealing with this matter in any informed way and too few judges appear willing to admit their ignorance of the issues involved here, pressing ahead instead to give bad decisions.


Anonymous said...


A traditional backup program like NTBackup does store metadata about the original file location, access and creation date, file attributes, but even if the defendant had done this type of backup, they would have still complained that he deleted the .mp3 prior to making the backup, which would not have show up. The only type of backup in this case that would have preserved the evidence is a full disk bit copy image (i.e. Ghost in forensic mode). That said, I do not trust the RIAA to not be twisting and lying about the events. I would also like to know if the RIAA has even attempted to do a data recovery on the drive or are they just looking for an easy win.

Alter_Fritz said...


problem is
a) he has NO counsel
b) IF and only if! he really did the stuff with the fileshredder like the plaintiffs accuse him of doing and it is true what they write about HE being under obligation to preserve evidence, THEN it now simply does NOT matter anymore if he has a defense or not. Because spoliation (why btw is that wrote this way and not like the word spoil?) of evidence is such a serious thing a party in a lawsuit can do, that even if Judge Wake -that had also jsut like Judge Davis did shown true judgeship when he reversed his earlier decision regarding SJ- were as much linient to this pro se defendent as he could be without risking Plaintiffs attacking him personly the jduge has now nearly no chance then to grand Plaintiffs demands because of the utter stupidity of Howell to fsck it up so hard!
Note that me is not a lawyer, I expressed my doubts about the allegations of plaintiffs "expert" against Howell this time, but My personal beleive is if the allegations prove to be true then Howell is Toast and nothing he can do against that.

Spoliation of evidence is the stupiest of the "stupid things a defendant can do"-things! NEVER EVER do that. You might have some defense but you throw that away when you mess with evidence and judges will likely grill you if you do it!

raybeckerman said...

I've posted Exhibit F -- the Doug Jacobson report upon which the motion is based.

Unknown said...

The question is:

At the time of the supposed 'spoliation' of the machine by reinstalling the OS. Did Mr. Howell know that the computer in question was evidence in a civil trial? Had their been a court filing, an injunction, anything?

Did he even get a simple cease and decease letter?

Unknown said...

Re the Jacobson report:

25 is an unjustified conclusion. The ACCOUNT was registered to the defended. There is no evidence of any kind that a computer, belonging to the defendant, was the computer which had that IP address at that time.

26 is an unsupported conclusion, on what basis does he decide that the mp3's were downloaded rather than ripped?

33 however, is a killer. If 33 is true and supported by J's "exhibit B" then Howell is probably guilty of spoliation of evidence.

If 33 is true and supported by J's evidence, then we further have to point out that H did a really crappy job of running the wiper/shredder program since he didn't have it wipe/shred the unallocated areas of the hard disk.

In reading this, I would not care to find myself in H's shoes.

Basically, J's #33 is such that if I were H, I would roll over, admit everything, and then go beat on "making available" as the only active defense I have left. (ick ick ick.)

Anonymous said...

@ Sebastien

That's what I was wondering. Reading through some of the legal brief by the RIAA, it seems there is some precidence for "reasonably knowing" that legal action might be pending, but as a layperson should I be responsible for knowing this?


Alter_Fritz said...

@ Anonymous : August 7, 2008 12:07:00 PM EDT

I ahve read about this NTbackup program some time back in a german computer magazine about "hidden treasures on the Microsoft windows xp installation disk" (as the title in german was)

That program is NOT part of a normal, typical windows xp home edition installation. It does not show up as a program in the Add/Remove section of the Software listing in XP home.

P.S. so DoughJ is not even expert enough to read most of the DVDs and yet HE has the audacity to claim to be able to define what propper backups and such are?
What a joke is that?!

As I thought: Reading what this "expert" actually wrote compared with what those exxaggerating Plaintiff's lawyers made out of it, there is not much left of the spoliation with evidence accusations against howell.
To bad he is Pro Se. I doubt he will be able to explain his actions technicly resonable to Judge Wake at the hearing and that Judge Wake will be able to see thru the bovine feces that the "expert" Dr. J now again had put up in yet another case he "plays the expert"

Unknown said...

There's a few problems with this guy's assumption.

1) Kazaa is used primarily for sharing copyrighted music and child porn. WHy not just go all out and say it's used by terrorists too. This is just a fear tactic to make everyone think that kazaa is an evil program.

2) The shredding program is only used to hide something. Uh, hello. The guy was using the machine to download Porn, which I assume he didn't want his (ex)- wife finding. I could easily see someone having the program even just to destroy sensitive files. I routinely shred files I don't want recoverable, and I don't have any downloaded music on my machine.

3) Point 33. The guy admits he had kazaa installed to download porn. So the fact that it was found in unallocated space isn't really a surprise, since he reinstalled the OS. and at most probably only did a Quick Format, if he did one at all. Additionally, if he had a shredder program and used it, how the hell did they find all this information? It should have been shredded. Or, it wasn't.

4) The claim he had 420 music files in his c:\my music folder, in 2002, and then it gets 160 more in 2006, and then 2000 more on 6/30/2006. That admitedly doesn't look very good. That's an awful big jump, but once again. They have no proof that these files were not burned from CD. Additionally, if he had that many songs stored on a different machine, when he copied them over, they would all get a new date. Downloading 2000 songs in 1 day is /really/ hard to accomplish with a cable modem. You're talking about 18 gig of data roughly, transmited in 1 24 hour period. At average download speeds back then of about 200k per second, maybe less. Not to mention, it's almost impossible to select that many songs at once in kazaa. Additionally, they have absolutely no proof that the "files they found" were downloaded, or burned, or anything. All they know, is that on that date, they happened to find a file that was available through Kazaa from that IP address. It's dubious at best.

The timing is key really.

So, I think I found something interesting. Ray, maybe you could double check if I read this right?

page 7 line 19.
This is the important bit

"The recording companies also request an injunction pursuant to 17 U.S.C. § 502(a) prohibiting Howell from further copyright infringement and requiring the destruction of any unauthorized copies of the sound recordings that Howell may hold in any medium."

If I read that right. He was required to delete those copies in the summary judgement. So, could he not argue, that even though he was fighting the summary judgement, he was following the court's order?

Anonymous said...

If Howell wanted to claim spoliation of evidence, couldn't he claim that the methods used by mediasentry are so sloppy, and the handling of the information gleened from his computer and secretly kept by the RIAA cannot be used as evidence because the RIAA has no way to prove that it had not tampered with or enhanced the evidence? The RIAA already claims that they have personally reviewed the data, and MediaSentry, and Johnson have fondeled it. There is no chain of evidence outside the bare bones claims.

Anonymous said...

Even if Mr. Howell can overcome the spoliation of evidence problem, he could still lose immediately because he apparently didn't participate in the preparation of the joint final pretrial statement.

Defending oneself pro se doesn't seem like a good idea. :-(


Anonymous said...

In 14) DJ lies, misleads, or is just plain stupid. He states that every computer on the Internet has a unique IP address, and that the address seen at one end of the Internet connection is the unique IP of the computer at the other end. This, of course, is completely not true! A data packet can pass through multiple NATs and be changed each time along the way, and will reverse that process to resolve back to the original IP address on its return journey. The computer at one end has no idea what the true IP address of the receiving computer at the other end actually is.

Someone should ask DJ if every computer on the Internet must have a unique IP address, how many computers currently on the Internet have the IP address of: Certainly thousands at least.

And why in 21-24) is DJ the one to testify what MediaSentry downloaded, what is in the MS logs, what the information from MS says about the IP address detected, and especially what the subpoena response from Cox Communications said about that IP address. How in any sense of the word is DJ involved in that part of the process?

And in 25) how the H-e-double-toothpicks does DJ know, except through hearsay, any of the facts in this and the following paragraphs? Isn't this just a bald faced attempt to shield MS and the RIAA lawyers from having the actual people in receipt of this information actually testify and be X-examined?


Anonymous said...

On exhibit F: So, Dr. Jacobson said that, in less than 40 minutes, 2329 mp3 were being distributed? That's a lot of bandwidth!

Also, I'm not afraid to admit that I use CD- and DVD-burning software like Roxio to back up my computer. I just want to save my data. If something goes bad, I'll probably be getting a new PC anyway, so why should I as a home user spend money on a backup tool that does more than I need? So, in my mind, files on a disk are "true backups" in the home market.

Part of the motion says that the defendant deleted the shredder's logs. I thought that weird at the time, since having a shredder keep logs seems counter-intuitive. Jacobsen just says that there were no logs of shredded files kept.

Also, Mr. Jacobson says that the bulk of the music files were "moved to the MyMusic folder" on June 20, 2006, which is (1 day) before the June 21 letter. I assume he is going by the "created" date on the file metadata.
As any competent investigator can tell you, evidence that a file was moved to a certain location on a certain date tells you nothing about where that file was before that date. In two mousestrokes, I can move my MyMusic folder to the desktop, then back to MyDocuments. Then all the music therein would appear to have been "moved" on a certain date. He could have kept the files in a subdirectory (such as "Wife's Music"), and then killed the subdirectory.
And guess what? Kazaa indexes subdirectories.
And the fact that his MyMusic directory -- which shows no signs of change since the June 21, 2006 letter was sent -- does not match the screenshot proves nothing. Even if the screenshot were an honest reflection of what the user had available for share (and there's little likelihood that it is), there's no reason why the user couldn't have "cleaned house" in the interim. In fact, Jacobson's testimony seems to suggest that just that occurred.
In fact, Jacobson's testimony seems to show that the "file shredder" was not used to destroy offending files. Why didn't the defendant shred the Kazaa shared folder, which Jacobson asserts, does contain an infringing file? Why didn't the defendant wipe all those thousands of mp3s?
For that matter, the file shredder probably wasn't used on Kazaa: there would still be registry keys revealing all the details. If I were to bet on it, Kazaa was probably wiped out in the interim, when anti-spyware flagged it as a threat.

The mere presence of a file shredder does not mean it was used on the alleged evidence, just as the presence of a paper shredder in an office would not in itself imply that paper records were destroyed. Yeah, if you look hard enough, on my PC you'll find one too.

The defendants were not ordered to seal their hard drive, just to preserve evidence. To allege they destroyed evidence, you'd need a pretty convincing case.

Alter_Fritz said...


regarding Dougies claim that over 2000 mp3 were distributed in ~40 minutes.

the good doctor of course just did a "pariser" there.
He was not deliberately lying as officer of the court! (Is he as Plaintiffs designated expert considered an officer of the court too that is not allow to lie to the judge Wake, or can a guy like him "lying like a trooper" [L├╝gen bis sich die Balken biegen] without that Judge Wake can anything do against it?)
He just misspoke! What he wanted to say -since he of course must side with plaintiffs here regarding the already by Judge Wake rejected argument of "making available"- is that the over 2000 mp3 were available for that 40 minutes.

Cut him some slack! As we know from a real p2p expert, the way Dr. DJ does his job as plaintiffs expert is "borderline to incompetence" so pulling such a little PARISER should not surprise you and you should NOT count that negative against him. Its not his fault that he has no clue, if anything then it is only certain Judges (hint: E.D.N.Y.) fault that they allow such a guy that does not be able to pass a daubert to "play expert" in their courtrooms!

Anonymous said...

Once again, the RIAA wants to dictate what you can have on the hard drive of your private computer.