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RIAA nears win (by default) in Atlantic vs. Howell

August 27, 2008 |  3:00 am

RIAA, Atlantic v Howell, file-sharing, illegal downloading, copyright infringement, Kazaa So much for that one. A federal judge in Arizona has all but dispensed with an intriguing legal battle between the Recording Industry Assn. of America and an accused music infringer, ruling that the defendant acted in bad faith by destroying evidence (download a summary of the judge's action here). The typical sanction -- yet to be meted out by U.S. District Judge Neil V. Wake -- is to decide the case summarily in favor of the side harmed by the loss of evidence, which in this instance would be the major record companies.

Wake had given defendant Jeffrey Howell a major victory in April, ruling (in a 180-degree reversal) that the labels hadn't provided adequate evidence that Howell had infringed their copyrights. It wasn't enough to show that Howell had 42 of their copyrighted songs in his Kazaa shared folder, Wake reasoned -- simply making files available online did not constitute infringement without proof that someone downloaded them without the labels' authorization. (Howell acted as his own attorney, but the Electronic Frontier Foundation joined him in arguing the "making available" point.) Better yet for Howell, Wake suggested that the defendant might not be liable for the 12 songs allegedly downloaded from Howell's shared folder by RIAA contractor MediaSentry. The key question, Wake wrote, was whether Howell had put the songs in his shared folder or Kazaa did it automatically without his knowledge.

According to Ars Technica, the case took a sudden turn after an expert hired by the RIAA persuaded Wake that someone had worked hard to erase the traces of Kazaa from Howell's hard drive, despite what the judge described as "repeated and explicit warnings about the obligation to preserve evidence." As a result, Howell probably won't get the chance to argue that the Kazaa software moved songs autonomously into his shared folder. That's too bad, because it's an interesting issue with all sorts of intriguing ramifications (e.g., if the software put songs into the shared folder on its own, would the makers of Kazaa be liable for the infringements?). Had Howell succeeded on that front, the RIAA could still have tried to prove that the songs in the shared folder had been downloaded illegally. But they would have been forced to make a circumstantial case -- I doubt there's any way MediaSentry could have watched Howell downloading files from a third party -- based on an argument that Howell's files matched other copies they'd found online. The technology for matching computer files isn't as precise as, say, DNA fingerprinting, so it's not clear how persuasive they could have been on that point.

Howell's situation is reminiscent of the Motion Picture Assn. of America's lawsuit against TorrentSpy, a BitTorrent index site that assembled copious links to bootlegged movies and other files. U.S. District Judge Florence-Marie Cooper summarily granted the MPAA's claims after finding that TorrentSpy had destroyed evidence. Come to think of it, Jammie Thomas, the first defendant to go to trial in the RIAA's campaign against file sharers, was also accused of destroying evidence. Thomas had her computer's hard drive replaced after the alleged infringements were detected but before she was sued. What is it with all these unreliable hard drives?!? Should file sharers be bringing a class action? But I digress. The EFF's Fred von Lohmann said in an e-mail that Howell's experience highlights "how difficult it is to defend these cases without a lawyer." The RIAA had lawyers and experts arguing that evidence was destroyed in bad faith, Von Lohmann wrote, while Howell was on his own -- and "he clearly wasn't able to adequately articulate his side of the story." On the other hand, if you're going to admit to using Kazaa, as Howell did, it's probably a good idea not to mess with your hard drive, even if it goes bad. Howell claimed he downloaded only porn, but hey, the porn guys sue too.

-- Jon Healey

Healey writes editorials for the Times' Opinion Manufacturing Division.

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