More Prenda Insanity: Lawyer Claims Defendant Erased Infringing Activity Using A Registry Cleaner, Citing A Single EHow Submission
from the BREAKING...-Gibbs-has-filed-a-motion-for-a-'bad-court-thingy' dept
Are you ready for some more fun courtesy of Prenda Law? While there are many copyright trolls wandering the judicial system, few have proven more entertaining than Prenda Law and its partners in unintentional levity, including AF Holdings, John Steele and superlawyer Brett Gibbs.Brett Gibbs takes center stage (again) in an ongoing copyright infringement lawsuit that has been winding its way through the courts since May of last year. Once again, Gibbs felt he had found something resembling evidence on the defendant's (Joe Navasca) hard drive, and brought in some outside "expertise" to back up his claim of "spoliation." Specifically, Gibbs felt that a registry cleaner found on Navasca's hard drive was evidence that he had removed all traces of UTorrent and any downloaded files.
Navasca's lawyer fired a letter back challenging Gibbs' emergency motion to compel on the grounds that everything about the motion was severely ignorant.
The instant discovery dispute ultimately centers around a particular bit of software that the defendant had running on his computer – C-Cleaner. Plaintiff alleges, without any support other than an “EHow.com” user submission, that using C-Cleaner is “proof” that Defendant was destroying evidence.Let's just pause for a moment in appreciation Gibbs' technical source, EHow. While it is generally a vast improvement over Yahoo! Answers, it's hardly the sort of place a lawyer should turn to for technical advice, especially when already over his head in a farcical legal battle, but especially when it's a single user's submission. I guess there's just no time to search for a second opinion when you're in Prenda Law. These holes won't dig themselves!
Navasca's lawyer, on the other hand, decided to quote an actual expert.
As described in the annexed declaration of a Certified Computer Examiner, C-Cleaner’s default functions (the only ones used by Defendant) do not permanently delete data, and only affect data that the average user does not even know exists.CCleaner's own website describes what the utility does:
It removes unused files from your system - allowing Windows to run faster and freeing up valuable hard disk space. It also cleans traces of your online activities such as your Internet history. Additionally it contains a fully featured registry cleaner.And here's how the actual Certified Computer Examiner describes CCleaner's functions under the penalty of perjury in a federal civil action, which Navasca's lawyer attached as Exhibit A.
9. CCleaner is not a “wiping program” and is not designed to “permanently remove information from a computer.” By default, CCleaner removes temporary internet files and other system files.So, on the "strength" of a single EHow submission, Gibbs hoped to bypass any concerns about privilege or privacy, singling out Navasca as a copyright infringer covering his tracks with a program that a.) doesn't even perform that specific function and b.) that he had downloaded years before this suit was filed.
10. ...For the most part, these are files that the average user does not even know exist and cannot even be viewed by most users. None of the files CCleaner deletes would be within the scope of discovery requests or be considered ‘reasonably accessible’ under FRCP 26.
24. The mere existence of a program such as CCleaner is not sufficient to support an allegation that a party has engaged in inappropriate conduct or deliberately attempted to destroy information. I have examined hundreds of hard drives and many of those contained the CCleaner program...it can be considered a useful program.
25. ...I have worked on many other cases where different programs were used to eliminate data – programs specifically designed for this purpose such as “Evidence Eliminator”. Unlike CCleaner, Evidence Eliminator wipes the free space of the hard drive by default. And in all such cases, the programs had been uninstalled before I imaged the hard drive for examination.”
There's more, though. When asked for the name of someone impartial to perform the hard drive inspection, the plaintiff named Peter Hansmeier, an "individual with familial ties to Prenda Law and its predecessor in interest, Steele Hansmeier." Not only that, but Hansmeier has "ties to instant litigation." So much for "impartial."
Navasca's representative also pointed out that while the defendant was willing to have his drive inspected, he could hardly grant that same permission for everyone else in his household. As is pointed out in this rather scathing letter, most (if not all) e-discovery vendors require certification that the owner, or the court itself (via a subpoena) has granted this permission.
Three days later, Judge Vadas added to Prenda's woes, delivering a terse denial of Gibbs' motion to compel. After instructing Navasca to stop running CCleaner on his computer(s), Vadas delivers this bit of advice to Gibbs.
Furthermore, allegations of spoliation are extremely serious, and the court urges Plaintiff to review the facts very carefully before pursuing this avenue based solely on an eHow.com article. In particular, Plaintiff should review the expert declaration that Navasca filed with his letter brief, to fully understand the purpose and effect of CCleaner.As if it weren't completely apparent by now, AF Holdings, Prenda Law and their personnel are grasping at straws, somehow hoping to fumble their way into a payday while simultaneously burning their collective reputations to the ground, salting the earth and setting fire to the salt.
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Filed Under: brett gibbs, ehow, evidence, spoilation
Companies: prenda, prenda law
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By that logic...
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Re: By that logic...
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Consider also that many people have short and simple passwords that a brute force attack would crack in just a few minutes. Or better yet, anyone can just try to enter '1234', '123456', '4321' and '654321' as a password since apparently more than 50% of people use one of these.
So just having a WiFi should be enough to cast doubt that nobody but you could have connected to the web through your IP address, that WiFi doesn't need to be open.
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I wonder what they would make of my hard drives, formatted with JFS and not running Windows.
"Your honor, he is obviously hiding weapons of mass destruction which would harm my client's case because he installed Lenux on his computer."
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Re: Re: By that logic...
C-Cleaner's removal and other similar software defaults to removing common garbage files that have accumulated over time. The downloaded infringing files probably have an extension *.mov and are not typically removed by these programs.
Also, Linux distros often have frequent releases and I suspect many Linux users update their distro more frequently .
Another question is whether these "experts" realize or know that Linux can use several different formats that Windows does not read because MS chose not to allow it.
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Excuse me, I need to run out and invest more money in Pop Secret. With extra butter.
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I hear that. I got bedsores just "compiling" it. :) Prenda Law has been linked to muscular atrophy. Yet another reason it must be stopped... eventually... one it stops being entertaining.
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I wonder if he's going to throw another "this judge hates me!" temper-tantrum now? I'm pretty sure he'd get laughed out of court (again), considering he tried to present a random eHow.com article as expert testimony or whatever.
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For the lulz in this case alone (and while reading these filings), I wish it still was.
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"You handed me a blank piece of paper."
"Exactly. The lack of illegal content on this piece of paper is proof positive that the Doe is guilty of destroying the illegal content that they had obtained illegally through illegal means."
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Ccleaner Wiper
The registry cleaner appears to look for entries that have no corresponding file, and then removes those entries. Might be useful to hide having certain previous installations, but I find that uninstaller programs tend to leave a lot of stuff laying about. This does not remove all traces of a program.
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And Prenda et al. must just love Techdirt for continuing to keep this all so easily searched and retrieved.
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Is this "CCleaner" any better than the "Little Registry Cleaner" I use?
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Deleting temporary internet cached files is easily done in a safe manner via your browser. Allowing a cleaner utility to remove registry entries for other programs is not likely to be a good idea, as the creator of the cleaner is unlikely to have knowledge of how those other programs work.
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I can't think of one instance where using a registry cleaner has harmed a otherwise working software. I have seen it help clean up a system so malfunctioning software started working properly.
On systems that have a lot of churn in software they are an invaluable tool to help keep the registry free of errors.
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You want a specific example? This one isn't even related to ad/spyware - just questionable design of software drivers. Back when I worked at Canon, we would occasionally run across a system with a seriously screwed up print spooler that we could never get printing properly. Did some research, and eventually found out that some Lexmark printers used their own version of the print spooler, and would change various registry entries to redirect the standard Windows spooler to theirs(this is the bad software design bit). This worked fine as long as their software was installed, and would work fine if that software was properly un-installed, as the un-installer reset them back to what they should have been. However, if the software was simply deleted, it left those registry entries intact pointing to files that no longer existed. Guess what would happen when those registry cleaners found that little problem? Entire Windows printing systems were fubar'd and couldn't be fixed without an OS reinstall. Without those cleaners, all it took was someone knowledgeable pointing the registry entries back to the standard spooler service.
While that may be a specialized example, there were plenty of other situations with programs using shared files/libraries that could experience the same type of issues.
On systems that have a lot of churn in software
If you've got a system like that, you should be regularly doing clean installs of the whole operating system, and dealing with the cause, not the symptoms.
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Yes Lexmark used to(not sure if they still do) screw up the print spoolers and I avoided Lexmark printer for years.
I was given a Dell printer that had Lexmark drivers and totally hosed my test system. I don't recall all the details but in the end a registry cleaner actually deleted the incorrect registry entries, Windows was then able to repair the print spooler settings (since they were now 'missing') and get a working system.
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Op Gibbs?
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For another C-note he might even change his name to Alan Cooper. Just tell him it's like witness protection from his reputation.
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The judge is just about as stupid as Prenda Law is. It's like they're using the same guidebook when it comes to "understanding the internet and computers". lols
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It also helps make the case more appeal proof. The last thing the judge needs is for Gibbs to be able to even get this case accepted by the appeals court for any missteps on the part of the judge.
The judge is just being very careful. Dotting all T's and crossing all I's.
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"Your Honor, my evidence is, there is no evidence!" "Convict!"
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Is everyone who cleans their HD attempting to conceal or destroy evidence of something?
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In no way by itself does having a program like this mean you are trying to hide, destroy or change evidence. In fact the way a forensic analysis of a HDD works it won't care if you have them or not and unless there is other proof that evidence was contained on the Drive at some previous point in time (before analysis was ordered) that is relevant to the analysis at hand then proving reliably that the lack of evidence means spoliation or destruction of evidence is completely unworkable and any CCE that places their name on such a report needs to be professionally and personally shamed.
For those that are using CCleaner, you also might like to look at ccEnhancer that adds 900+ programs to the rule list list. It also works on BleachBit (an open source equiv for CCleaner that works under *nix too)
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Thanks for the link. I'll go check it out.
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Even if they do find data it would be impossible to recover.
Honestly everyone should encrypt their drives to begin with. It's a good practice to protect your data and having to enter a password when you boot up is not going to kill anyone. I could be wrong though and the extra few seconds could put people in the loony bin.
My computer is protected to the max for one reason, because I can. Sure it might only be some vacation photos and my personal Photoshop collection but it's mine and I have the right to protect it even if it only has value to me.
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They are an absolute PITA to analyse and becoming very very problematic for evidence recovery.
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Oh and the Darwin awards are a fantastic way to stop De-Evolution of the human species! ;)
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