Howell Loses To RIAA... But For Evidence Destruction

from the well-that-was-just-dumb dept

Wed, Aug 27th 2008 9:11am — Mike Masnick

One of the more well-publicized lawsuits involving the RIAA was the Howell case, which got a lot of press when some folks misread the RIAA's filings against Howell. Either way, that point became meaningless when the judge ruled in Howell's favor that "making available" is not infringement by itself. Of course, that argument was just for the RIAA's attempt at a summary judgment. So the case still went on, and it turns out that Howell was caught destroying evidence -- a big no-no. So, despite all of this, it's no surprise that the RIAA has prevailed in the overall case. It does make you wonder why people who have strong evidence against them still end up fighting the RIAA. It's completely admirable to fight the RIAA if they're using faulty or flimsy evidence and you're innocent, but when the evidence suggests otherwise, what good does it possibly do to fight them in court? In the meantime, the RIAA will certainly talk up this "victory" but will skip over the part that it wasn't on the actual issues, but over Howell's decision to destroy evidence.

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Filed Under: evidence destruction, howell
Companies: riaa

18 Comments

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Anonymous Coward, 27 Aug 2008 @ 10:55am

Flimsy
I don't know, according to the article, the "destruction of evidence" was "that Howell uninstalled Kazaa and reformatted his hard drive". I find the wording odd, since the latter has an implicit of the former, but that might be the journalists take on it.

However, I find it disturbing that the mere act of formatting a hard drive can be seen as malicious destruction of evidence. With the 9 people and 15 computers in my household, it is a rare month that I don't reformat and reinstall one of our PCs.
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Anonymous Coward, 27 Aug 2008 @ 11:03am

Re: Flimsy
agreed, this is a little bit worrying. could you then be charged for "destruction of evidence" if you are in the middle of formatting your computer when the police come over for a visit? would a routine task be seen as an admission of guilt?

also, if his computer was evidence in the case, why wasn't it held by a third party when it was entered into evidence so such things couldn't happen? if however he had formatted it before it was submitted as evidence, how is is "destroying evidence"?
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Anonymous Coward, 27 Aug 2008 @ 11:15am

Re: Flimsy
Holy carp, 15 computers? My family has 11 people and only 5 computers (though, to be fair, half of us have moved out).
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Bob, 27 Aug 2008 @ 11:16am

Oh come off it....
Howell was caught with his hand in the cookie jar, and when he realized this, THEN, after knowing that the RIAA was seeking his PC for evidence, he refomatted it.

This isn't the case where you needed to reformat mom's computer cuz it quit running bridge.

Howell knew the RIAA was seeking his PC as evidence, and any judge will tell you, that if you KNOW that what you are doing is WRONG, then you are out of luck, sorry, play again later.

Personally, I think the RIAA is just a bunch of over-caffinated jerks, but even jerks get it right once.
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Anonymous Coward, 27 Aug 2008 @ 11:20am

Re: Flimsy
I think the difference here is that these Defendants reformatted their hard drive AFTER being accused by the RIAA that they were illegally sharing files. If you get sued, you're obligated not to destroy evidence pertaining to that suit, though its much more complicated than just that and lawyers spend their time in such a lawsuit fighting over what evidence should be given to the other side. But you can't just wipe your computer clean if you know you're being sued over what your computer contains.

People really need to get the hint that they need to talk to a lawyer immediately when they get these letters. While there's all sorts of information about the RIAA's campaign on the web so people can inform themselves, there are so many other things that only a professionally trained attorney would tell someone that would prevent a case like this ending this way. Any good attorney would say don't wipe your harddrive clean, but you don't often see that in what's available online.
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another mike, 27 Aug 2008 @ 11:32am

was it TorrentSpy?
Just a little while back, one of the torrent search engines had a case go against them when they destroyed evidence.
If you're being sued with the MafIAA's flimsy "evidence", any good attorney can get that BS tossed, so you're bullet proof. Even if you're caught red handed, they can't do much. Don't make things worse by destroying evidence. The judge will throw the book at you for that alone, so don't do it.
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PaulT (profile), 27 Aug 2008 @ 11:55am

Re: Oh come off it....
I don't think that anyone's arguing that it wasn't wrong in this case. I think what people are worried about here is that it may set a legal precedent stating that the formatting of a hard disk can be considered destruction of evidence.

Given that the RIAA have a habit of suing people who have done absolutely nothing wrong on the flimsiest of evidence, the next person who gets caught formatting the hard drive may be doing so for entirely innocent reasons. The concern is that this person may be liable for destruction of evidence even though that was not their intent.
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Overcast, 27 Aug 2008 @ 12:04pm

Yeah, should have just swapped it out with another hard disk. Or better yet, just get his stuff legit.

I mean, I hate the RIAA as much as anyone, but I do think you should pay for the products you get.
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ehrichweiss, 27 Aug 2008 @ 12:24pm

Re: Re: Flimsy
That's not remotely unheard of. Hell, there are more Silicon Graphics workstations in our house than there are adults. More laptops than family members, more desktops than kids... Different computers have different tasks.
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ehrichweiss, 27 Aug 2008 @ 12:30pm

"two" words...
Off-site storage. Of course what would be better, and what I see becoming more and more popular will be to rent bandwidth/space on terminal servers so that you can remote desktop to your machine in Antigua, and download to your hearts content; transfer to USB keys encrypted with TrueCrypt(using the "free space" hiding method where encrypted data looks like unused blocks)) and no one is the wiser.
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Anonymous Coward, 27 Aug 2008 @ 2:00pm

Is this a retraction blog, Mike?
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Chronno S. Trigger, 27 Aug 2008 @ 3:19pm

Re: Re: Re: Flimsy
I have a server, two PCs, a tablet, the PS3 with Linux, and a windows mobile device. I live alone.

I'm about to reformat my server. Do I have to worry about the police coming a knocking? I've been sharing Linux distros for a while now. I'm sure my IP address is on the RIAA's watch list since we know they don't pay attention to what you do on the P2P sites, only that you are on them.
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John Duncan Yoyo, 27 Aug 2008 @ 5:54pm

Re: Re: Re: Re: Flimsy
I expect you are safe to reformat a drive so long as you have no expectation of being ordered to present your computer for examination. We all can safely argue that reformatting is a common computer maintenance task.
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Mike (profile), 27 Aug 2008 @ 9:13pm

Re:
Is this a retraction blog, Mike?

Huh? A retraction of what?
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Rekrul, 28 Aug 2008 @ 1:04am

A computer hard drive doesn't run on magic. They are designed to divide the surface of the disk up into "clusters" and then they store one and ONLY one copy of data in each one. If the data in those clusters is overwritten by different data, there's no magical way to tell the drive to bring that data back. If there was, don't you think hard drive companies would be using that method to double the capacity of their drives?

Most people think that when they delete something or do a "quick" format, that it erases the data. It doesn't, and that's why you hear stories about the police or RIAA getting information off a "formatted" drive. A true format WILL erase all the information on the drive. Once that's done, the only way to pull anything off the drive is to disassemble it and put the platters into highly specialized, hugely expensive machines that can read the left-over magnetic traces on the 1/1000000 of an inch on the edge of a track that might not have been recorded over.

If you don't believe me, contact a professional data-recovery service and tell them that you accidentally formatted your drive using a "zero-fill" option and want to know how much it will cost to recover all your data. Tell them that the data was only written over once and they should be able to read the left-over magnetic patterns on the drive. They'll tell you that it can't be done. If it could, wouldn't they be happy to take your money?

The problem with destroying computer evidence is that most people don't have a clue how to do it. Just formatting the hard drive, even if you do zero-fill it, is a dead give-away, since you intentionally erased it. If you don't zero-fill it, all the data can still be accessed. If you only delete certain files, they can usually still be recovered. If you use a secure-delete or file shredding program, the data will be gone but there will probably still be references to those files in the registry, in the registry backups, in the list of most recently opened files in Media Player, etc. Not to mention that the use of a file shredder program can look suspicious itself, unless you properly cover the tracks to that as well.

It is possible to securely erase all evidence from a hard drive while leaving all your other stuff untouched, but most people don't have a clue how to do this.
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Anon2, 28 Aug 2008 @ 8:06am

more to this
Despite all the protestations above that Howell had done nothing more than innocently reformat his hard drive like loads of people do, that's not what the court found. Rather, the order makes clear the Judge found that Howell did this not simply after being sued (bad enough), but after "repeated and explicit warnings" about his obligation to preserve things exactly as they were. If this finding is correct, he deserves to have default judgment entered against him.
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Anonymous Coward, 28 Aug 2008 @ 8:47am

Re: more to this
this was never disputed, we were just questioning if anyone would interpret/abuse it in a more severe manner, it's happen before and most of us are sure it will happen again
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Anonymous, 4 Sep 2008 @ 2:51pm

sigh
*Hypothetical Situation* Everything except my OS and a few basic programs is on an external harddrive, that computer is only used for downloading the computer I use for running the software etc. is a seperate entity, seperate IP etc. Would this method be feasible if I were called to court? I can ditch the external and all I would be left with is two computers, one clean and one with registry enrties pretaining to data that the RIAA couldn't find. And couldn't they only enter the computer with the IP on their list into evidence, since the other computer isn't in evidence I can do hard-drive swap and get rid of the one that was in the computer used for the running of the pirated software?
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