Wednesday, August 27, 2008

Motion for sanctions to be granted in Atlantic v. Howell

According to a minute entry in Atlantic v. Howell, the Court will be granting the RIAA's motion for sanctions based on spoliation of evidence.

The entry reads as follows:

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 extent of sanctions is within the Court’s discretion. The Court will issue a written order on the pending issues. The Motion for Sanctions is taken under advisement. A written order will issue regarding the pending Motions to Dismiss.
According to an article in Ars Technica, the RIAA has won the case.

August 25, 2008, Minute Entry

Found via Ars Technica.

Commentary & discussion:

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 portable music player


Anonymous said...

So now you're guilty based on a complete lack of evidence proving that guilt. Because it's not there now we positively know that it was previously there.

While the Defendant in this case absolutely made a number of missteps along the way, this logical summation of the RIAA's arguments that the judge uncritically accepted is deeply flawed. Clearly the RIAA's worst case secenario has been accepted - that KaZaA had been on the system until it was wiped out by the file shredding and reformat.

We are clearly Down the Rabbit Hole in our courts and woe be to us all.

{The Common Man Speaking}

Unknown said...

You're guilty based on acting somewhat shadily, and not having a good lawyer who can frame your actions in a way that make sense. I still think he might have a shot at appealing this, if he can put together a compeling story. The problem is, he just kinda looks guilty. Still, having to keep your computer 'pristine' for 2+ years is pretty ludicrous a requirement. I mean, I routinely reformat my HD roughly once every 6 months.

There should have been a timely discovery phase. With specific constraints, to protect his privacy. Also, if he could produce either an Itunes purchase or the CD's of all the mentioned recordings, would that not blow away 99.9% of their case?

Anonymous said...

Did the RIAA claim that they would have found evidence of distribution on Howell's computer? Methinks they didn't, and thus have no case, regardless of defendant's actions. Did they bring this problem to the attention of the judge? -dp

Unknown said...

Regardless of whether there is actual evidence of infringement, if given notice to preserve evidence, you have a duty to do so. If the RIAA's papers are correct, this guy didn't take appropriate steps to preserve evidence after being given clear instructions to do so. Not preserving evidence, even if you didn't do anything wrong initially, can certainly make it appear that you did -- and the court can penalize you accordingly. For example, it's possible the judge in this case could say that since the evidence was willfully destroyed (bad faith), particular allegations of the RIAA are assumed to be facts as they can no longer be proved or disproved (some type of default judgment).

There's a very good reason why defending yourself in any case is a bad idea. This guy is likely to get raked over the coals.

Anonymous said...

Has anyone ever accused the RIAA/MS of tampering with evidence?

Anonymous said...


If the RIAA did not claim that defendant infringed copyright in some particular way, then at the outset their case should have been thrown out. The question is, can defendant revisit this issue? I imagine that's not so easy. -dp

Anonymous said...

"Has anyone ever accused the RIAA/MS of tampering with evidence?"

Dear anonymous (next time give us a name), almost nobody has taken depositions of MediaSentry. How can you accuse them of falsifying evidence when you have no idea who they are and how they collect it?

But as we (the readers of this blog) have mentioned in comments over the past few weeks, we hope defendants will depose MediaSentry and pursue discovery on MediaSentry's machines. This will help identify some of the problems that we know exist but whose cause is unknown.


Matt Fitzpatrick said...

I've started to wonder whether the **AA actually doesn't want people to tamper with the evidence.

Warning people not to delete any files before litigation has even started? Sounds somewhat unusual to me. These warnings could only serve to give computer unsavvy defendants the idea to attempt to wipe files in the first place, give a misleading implication that wiping files might actually destroy evidence (rather than simply transform evidence of infringement into evidence of spoliation), and give a misleading implication that MP3s and file sharing programs on your hard drive are evidence of guilt.

Defendants: Seriously, don't wipe. Whatever it is you've done, stand up for your right to do it. Courts are, by and large, sympathetic to fundamental issues of fairness (see Assessment v. WIREdata, where the 7th Circuit, awarding costs to a prevailing defendant, describes copyright suits as often a "big guy" property owner suing a "little guy" seeker of nonexclusive use who stands to gain nothing more than that from a successful defense), but only if you're playing fair yourself.

raybeckerman said...

Bear in mind that the defendants are also being requested by the RIAA to stop the file sharing.

Most people being asked to stop it have no idea how to stop it other than to delete the shared files and delete the program.

Anonymous said...

The posters above have posed a fascinating conundrum to this man. At what point are you required to preserve evidence to assist an adversary against you?

Are you required to preserve your hard drive when (if) your ISP notifies you that they have received a request for subscriber information based on an IP address and time-stamp combination that points to your account?

When they've received a DMCA compliant takedown request against your account?

An ex parte subpoena to turn over identifying information regarding your account?

When the RIAA Settlement Support Center LLC contacts you for settlement of your copyright infringement crimes?

When their lawyers tell you to preserve all evidence to convict yourself or else, even though their settlement center has already assured you that "the evidence to prove your guilt has already been secured"?

When you refuse their extortionare settlement offer(s)?

When their lawyers notify you that they intend to file suit against you?

When they actually file suit against you?

When you're notified/served by the lawsuit against you?

When the judge orders you to preserve any and all relevant evidence?

When discovery against that particular evidence is granted by the court?

Just at what point has this become a legal obligation on you, and not just wishful thinking by the RIAA lawyers who will not tell you the truth in this matter and leave you believing you need to preserve everything you've done from the moment of birth?

Ray? Anyone?

{The Common Man Speaking}

Unknown said...

Part of the problem is that by default Kazaa tries /really/ hard to share your music folder. It asks you at least once, and i think actually a couple of times if you want to import your music, and if you want to share it.

I wish this guy could get a lawyer. Actually, what I wish is for someone who gets threatened by the *AA but actually has proof he didn't do anything wrong to try and fast track a lawsuit against them. As it stands right now, we're probably 2-3 years from a decent case against the RIAA.

Unknown said...

At the very least, buy a low level formater, or better yet. Spend $130, and buy a new harddrive and reinstall windows. :)

But, In all seriousness, Ray would be the one to have good advice on when you are required by law to keep self-incriminating evidence for a copyright/civil trial.

Joel said...

"So now you're guilty based on a complete lack of evidence proving that guilt. Because it's not there now we positively know that it was previously there."

In this case, the defendant was notified in writing in June 2006 to preserve evidence. The case was filed in August 2006. The defendent was again notified to preserve evidence.

After the RIAA's hard drive inspection, Jacobson concluded that hard drive wiping software was downloaded in November 2006. The operating system was re-installed on the hard drive in January 2007. There was evidence of use of the "wiping" software as late as March 2007.

I think it is pretty clear why the judge found spoliation of evidence on the defendant's part.


Anonymous said...

Common Man,

I sure hope the answer to that question as to the first event that can trigger a requirement to perserve evidence is:

"When you're notified/served by the lawsuit against you?" Forget notified, SERVED is the 14th amendment standard. This is why they cannot just drop the process in the mail.

Personally, I think a requirement to keep your conputer "pristine" borders on a 14th amendment taking of private property without just compensation. If the Court wants him to maintain HIS computer without using it, and without allowing further file sharing, the Plaintiffs should have to pay to supply him another machine to use while the case winds thru the courts, or another hard drive(s) and money for the labor to image unto it so that he can continue to use HIS machine. (Actually is this not exactly what the expert examiner is supposed to do, image the drive??) After all, when a third party is asked to produce, they do have to advance costs. Why should it be different here?

I seem to remember this case involved Pamela Howell being sued first, since her name was on the internet access account, and then the current defendant being added when it was discovered he might be involved. If so, how can a notice to perserve evidence directed at Pamela Howell be binding on Jeffrey Howell, when it is very likely he was not in fact named in the suit when it was filed, and the notice to perserve evidence was first provided? Of course since he did not raise this issue, I guess he has waived it here.

The first item in this case on the site is a summary judgment on August 24, 2007, so I cannot determine when Jeffrey Howell was added.

Also, quite frankly Jeffrey Howell's big mistake is being too much of an expert against himself when he was deposed. The original Summary Judgment seems to be based almost entirely on his own admissions, vis:

Q: So each of the songs that you acknowledge were on your computer in
25 Schedule 1, Exhibit A, all of which research [sic] – represent subsets of what’s
in the thicker packet –
26 [Howell]: Yes.
28 -5-
Q: – that was Exhibit B to the complaint1 and Exhibit 3 to the deposition, are
things that you acknowledge that on the date of capture, January 30th, 2006,
2 were seen by plaintiffs as being shared by your Kazaa account?
[Howell]: Yes.

Since I doubt he is an expert on KaZaA, that final "yes" should have been at minimum a "I dont know". I doubt he had independant recall of the songlist on his computer or his IP address, or an expert on the exact operation of the KaZaA program. However, having admitted at his deposition that important vital fact to the Plantiff, he clearly admitted guilt in the eyes of the Judge. Had he given a likely truthful answer of "I dont know" to that question, Plaintiff would have had no choice but to produce an expert to testify to establish that fact.

In other words, he messed up, likely because he did not have council watching his back......

Pamela Howell was not found liable at all, as there was no evidence or admission on her part. I guess she was a little better than him at the depo.

I would not make a nice Defendant for them. Since I have more than one machine, why on earth would I produce the one with KaZaA on it, rather than one of the others. Clearly wrong, but how would they prove the existance of any other machines? The only MAC address they can capture from the ISP is the Router MAC, and the brand of router I use maintains its logs in ram, losing them after every powerdown. Do they sue the power company for spoliation for allowing the power to go off in that last thunderstorm??

Bottom line, HE HUNG HIMSELF....