Monday, September 01, 2008

For "repeatedly" destroying evidence, Court strikes answer in Atlantic v. Howell and enters judgment for RIAA

Thanks to a faithful reader "Scott" who brought this to our attention.

In an Arizona case, Atlantic v. Howell, the Court, after finding that defendant had "repeatedly" and "willfully" destroyed evidence necessary to a determination of the case on the merits, struck the defendant's answer and entered a default judgment in favor of the plaintiffs.

Fred Von Lohmann of the Electronic Frontier Foundation was quoted in Ars Technica as saying "He never had an adequate opportunity to explain what happened on his PC, while the RIAA had forensics experts and lawyers to tell the story.... I think if Howell had an expert and lawyer to speak for him, he would have told a different story."

August 29, 2008, Order striking defendant's answer and granting default judgment to plaintiffs

Found via Ars Technica.

Ed. note. 9/2/08
[I've uploaded exhibit A to the RIAA's 'spoliation' motion, the June 21, 2006, letter. Note that in the very same paragraph (last bullet paragraph on page 2) in which the RIAA lawyers requested Ms. Howell to "preserve evidence" and not to delete the peer-to-peer file sharing programs, it also instructed her to "stop them from operating". It is my understanding that many people are unable to "stop them from operating" without deleting them, and that the FastTrack programs such as Kazaa and iMesh were specifically designed to prevent users from 'stopping them from operating'. -R.B.]

Commentary & discussion:

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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...

This is an obvious miscarriage of justice if one side isn't even allowed to be heard. The RIAA might have well as appeared ex parte under these circumstances, which is just plain wrong. I would hope that this is an appealable issue.

Still, of course, the Defendant must not have realized this was a foolish case to pursue without a lawyer given the resources and vexatious nature of the Plaintiffs.

This man feels it would be interesting if the judge imposed sanctions only to the level of the RIAA's original $3000 "settlement" offer.

{The Common Man Speaking}

Anonymous said...

well, it sounds more like he was punished because he destroyed evidence, then that he shared music.

The two lessons are:
1) If you insist on fighting the RIAA, hire a lawyer.
2) Don't destroy evidence.


raybeckerman said...

Just want to remind folks that at the same time the RIAA is telling folks to preserve everything, they're also telling the defendant to stop the file sharing. And they put in their complaint the allegation that the defendant is committing infringement on a "continuing" basis.

In many cases the only way the defendant knows how to stop the file sharing, and in some cases the only way to stop the file sharing, is to delete the song files and the program.

So it's a game the RIAA plays. It's called damned if you do, damned if you don't.

If you do delete the program you're committing "spoliation".

If you don't delete the program you're "continuing" the copyright infringement.

It's similar to their hard drive game "Whatever the facts, we win, you lose". It goes like this:

(1) If the hard drive has evidence of file sharing, you lose.

(2) If there is no evidence of file sharing, but you've ever deleted anything, defragmented anything, or reformatted anything, you've committed "spoliation", and you lose.

(3) If there is no evidence of file sharing and no evidence of deletion, defragmentation, or reformatting, you've switched hard drives, or you've covered up for some other person who was using your internet access, and you lose.

I'm still waiting for judges to show some awareness of this game.

Anonymous said...

Can defendant then appeal on the basis that the default judgment ($750 per song, $40K total) is unconstitutional?

StephenH said...

I wondered if he could appeal based on what the RIAA is saying to stop file sharing on their website, (which the domain is registered to the RIAA).

Now, I wonder if he will appeal or just file bankruptcy. Over $40,000 is a steep punishment for a home user.

Anonymous said...

I note that the Plaintiffs said that after he removed the KaZaA program, deleted the song files, reformatted his hard drive, that he then got File Shredder and destroyed the KaZaA logs they'd lost all their evidence against him.


And shredding anything after a full reformat is completely redundant. Were you expecting this original drive to be shipped to the NSA for deep surface forensics? I don't think so.

In fact, while its possible to recover even data that has been overwritten more than one time with proper analysis (don't just erase your hard drive, melt it down into slag before throwing it into the deepest ocean canyon if you really want to keep your secrets), that wasn't even suggested as an option to recover incriminating data in this case. What? Too much work for the RIAA to attempt that since they got him guilty with no evidence at all on his hard drive?

The most the RIAA could have made any case for was Making Available even with the hard drive. They're not entitled to more without it. No evidence was offered of distribution, and no evidence of distribution would have been found on his hard drive no matter how well preserved it was. And mere Making Available isn't enough any more.

This judge is a real moron, IMnsHO.


Anonymous said...

Things defendant is stated as having done which make no sense to me. All quotes here are my own paraphrases.
- "Not making a 'true backup'." There is no such thing. And even if there were, defendant is not and need not be an expert in computers. And MediaSentry doesn't make such 'true backups' either, so apparently the RIAA's own employees don't think they're necessary.
- "Deleting KaZaA and this being a bad thing." Defendant is complying with legal demands to do stop sharing in the simplest and surest way.
- "Anything involving the computer that happened after defendant made his DVDs." Assuming he made his DVDs in good faith, all subsequent actions on his computer are completely immaterial.
- "The DVDs contain files that were not being shared by Howell." You mean, according to MediaSentry? Is their evidence reliable? We can't simply assume for the sake of this motion that all of the RIAA's claims are reliable!
- "Howell had means to prevent KaZaA to continue to function without deleting it." If he was a computer expert or someone who would never use his computer again, yes.
- "Howell wouldn't destroy the only evidence that could save him." If the DVDs were produced with the assumption that they were adequate evidence, then Howell had nothing to fear. And to my eyes the RIAA's case was quite weak anyway. Is the judge now expecting Howell to be both a computer forensic expert and a legal expert?
- "Howell's actions were deliberate, to cover up what he did." Most of Howell's actions are easily explained through (a) a lack of resources, (b) trying to comply with legal demands, and (c) not being a computer expert.

Maybe some of what Howell did was shady. I don't know. Most of it wasn't, and the judge writes that most of it was.


Anonymous said...

Re XxX,

It was true many years ago that many rewrites were required to make old data nonrecoverable. These days, it is supposed two or three passes over data will make it unrecoverable. If data is merely deleted, then simply filling up your hard drive two or three times would probably do the trick.

I would find it odd that shredding software is seen as suspicious by the judge. Many of us who are healthily paranoid use shred on a daily basis, and it has nothing to do with copyright infringement. I would find it odd, if defendant had a good expert witness and lawyer supporting him.


Jadeic said...

There is another variation on the 'damned if you do/don't' scenario.

Preamble: Say, as in this case, I admitted that I had KaZaa loaded on my computer and had MP3 files of tracks for which the plaintiff held the copyright (still no proof of distribution and 'making available' isn't an issue) but that these were ripped from CDs that I owned (a grey area but one which on balance I think the RIAA have approved).

Scenario: During the (deliberately) interminable length of time it takes the RIAA to progress their action through the courts I need to raise some cash to fund the discovery process. I choose to sell my CD collection (as I now detest any RIAA tainted product) and because this is not covered by any court order to preserve evidence. Because I no longer own the original CD I am obliged to delete the corresponding copies from my computer, am I not? But this is 'spoliation'!! What a dilemma. At this stage I would, as a pro se, approach the court for advice and a ruling. I wonder what that ruling would be?


Unknown said...

Is there no Public Defenders type of deal for people who are being sued such extreme amounts?

I would think that a court case that can cause financial ruination like this, especially one where the amount may equal more than a year's worth of total income. That there should be some protection to allow people to have representation. It's been proven time and time again, that a mediocre lawyer, is better than representing yourself. There are rules of the game, ways of presenting evidence, filing papers etc, that no layman would have the know-how or ability to access the right information.

$750/song. Being accused of more than 50 songs, is more than most people make in a year. That kind of fine in a criminal case would be extreme.

Anonymous said...


I notice something even more unfair. MRS Howell received a letter telling HER not to destroy evidence, and to stop sharing files.

MR Howell is accused of deleting files from HIS computer. NOWHERE in the letter does it direct MR Howell in any way, the letter was ONLY directed to MRS Howell.

From the wording of the letter, it was sent after the filing of the John Doe action, but before MRS Howell was actually served, So I also question if the demand was properly made, since she in fact had not actually been served at that point.

The letter instructed MRS Howell to disable sharing, but not to delete any music files OR the peer to peer program. The letter tells her she can visit for instructions on how to stop sharing files. However, the answer the web site (which IS registered to the RIAA) gives is: "Take It Off".

The very first paragraph of this section says:


Yes, there are other instructions in a PDF link about 3/4 of the way down the page, but read that sentence above; It appears to command people to uninstall the software to keep legal. If he did this, looks to me like he was just following the RIAA instructions. It is unfair to punish him for doing exactly what the website in the letter suggests.

I suspect the RIAA discovered although the Internet access account was in MRS Howell's name, she did not own any computer, and thus could not been the infringer. When they discovered MR Howell owned a computer, that is when the RIAA added him to the Lawsuit.

Since that letter is ONLY directed to MRS howell and HER computer, the instruction was: "In this case, that means, at a minimum, the entire Iìbrary ofrecordings that you havc made available for distribution as well as any recordings you have downloaded, need to be maintained as evidence."

Since MRS Howell did not own a computer, she had no duty to keep anything.

Since MR Howell was not a party to the letter or to the DOE lawsuit, HE had no duty under the letter either.

Is there any other documents commanding the retaining of evidence? If not, it is totally unfair to enter judgment against him, when he was not a party to the letter or the original Doe suit.

I think he needs to appeal.


Jadeic said...

If Albert's reading of the court papers is correct then I agree that an appeal should be allowable. Cases are often won on such detailed technicalities.


Unknown said...

"In this case, that means, at a minimum, the entire Iìbrary ofrecordings that you havc made available for distribution as well as any recordings you have downloaded, need to be maintained as evidence."

He made CD's of all those.
Now, the RIAA is saying those aren't "true backups" but he followed their directions. They only said to keep the library of recordings that was made available for distribution. He did exactly what they asked for "at a minimum".

They never say, keep the machine pristine.

First off, should they not know what that library is? Isn't that their entire case? Why do I have to keep the evidence of their case around. Is there nothing against self-incrimination?

I have to agree the Judge is lacking several clue pills. I also find very disturbing, that he TRIED to hire a lawyer, and noone would take the case.

Anonymous said...

It seems that the best thing to do with regards to preserving evidence when faced with the RIAA, would be to remove the hard drive from the computer and put it in a safe deposit box. A new hard drive isn't that expensive and I don't think it would be that much of a burden. Of course, for the technically ignorant, it might be problematic - but hard drive replacement can be done through many different companies for a reasonable fee.

Not Telling said...

I think that the $40,000 judgement is way too high. I think that a judgement of $1000 would be fair, but the law does not allow for it.

But it's right there in the letter:

"Further, you should
not attempt to delete the peer-to-peer programs from your system"

The tells you how to disable file sharing in Kazza AND how to uninstall Kazaa. Maybe we can argue that the message is contradictory, but the letter says do not uninstall it, just disable it. And the instructions for disabling it are clear.

As somebody said, Ms. Howell received the letter, not Mr. Howell. The Court already concluded that Ms. Howell isn't liable because the "infringement" wasn't done for the benefit of both parties and that Ms. Howell never consented to it. I was going to say that therefore Mr. Howell wasn't obligated to keep the evidence, but I don't know if this is accurate considering that he downloaded the shredding software after being served.

Jadeic said...

We can gnaw on this bone forever but it won't change the consensus view the Mr Howell cocked this up spectacularly. Which is a pity because I am sure the RIAA are breathing a huge sigh of relief. Although it is unlikely that he stood a chance of winning even with the best lawyer to represent him (I nominate Ray) the case could have raised many pertinent issues that the courts and the plaintiff would have struggled with. I see this as a lost opportunity rather than a win for the opposition.


Joel said...


According to Pacer, UMG v Greubel was dismissed with prejudice yesterday. I attempted to e-mail a PDF of the docket and the joint stipulation but my e-mail bounced with the following error: 550 5.1.1 User unknown

I had the same problem this weekend when I tried to e-mail several PDFs from Atlantic v Howell.

Its really not a big deal in this case, the joint stipulation doesn't really say anything. But, I figured I'd try e-mailing it for your archive.


raybeckerman said...

Thanks, Joel.

That's because you're using an email address that hasn't been in use
for two (2) months, instead of my my current email address.

Appreciate the update on UMG v. Greubel.

raybeckerman said...

joel, my bad on the email address. I realize now that I was still posting the old email address in the "Leave your comment" section. There are 2 ways to access the "Leave your comment" section: one is viewing the comments at the bottom of an article accessed by permalink; the other is by clicking on the comments link from the web site. I'd corrected the email address for the former, but not for the latter. Sorry about that.