Busted for file sharing? Don't format your drive!

If you were ever required by a court to turn over your hard drive for copying, in order to glean evidence from it, you might consider a format is a good idea. Well, it isn’t!

[I]Knowing that a court order was in place requiring her to turn over her hard drive to be copied, the defendant allegedly used “wiping” software in an attempt to destroy all evidence of her illegal P2P file sharing. In response, the plaintiff record companies moved, pursuant to Fed. R. Civ. P. 37(b), for the most severe form of sanctions against the defendant – entry of default against her. The court granted the plaintiffs’ motion, and provided them with 30 days to submit a proposed order spelling out their damages.

Given that the record companies’ expert opined that the defendant had downloaded over 200 sound recordings during 2005, those requested damages will probably be substantial. Statutory damages under the Copyright Act can go as high as $150,000 per work infringed, in the most egregious cases.

In reaching its decision to enter default against the defendant, the court exercised its inherent power to do so, making a note of its obligation to act with “restraint and discretion.” It found that the defendant had acted in bad faith. That bad faith was exacerbated – and the default was further warranted – by the fact that the defendant herself was responsible for the destruction of evidence, that the deletion of the files destroyed the strongest evidence relevant to the plaintiff’s infringement claims, and that less drastic sanctions would not be appropriate.[/I]

Supposedly the procedure was supposed to be (according to my reading here) is that the ISP or company complaining is supposed to send the user a letter to “cease” as a warning, then if the person doesn’t, they’ll get the legal proceedings started. Since this woman had to get a warning letter to “stop,” it’s sad she didn’t back up everything then wipe the drive, as at that point there would have been no problem. If they’ve already got you and know you have the files, no point in adding “obstruction” or “destruction of evidence” to your plate. :frowning: At that point, you might as well throw yourself on the mercy of the court, say you are sorry, etc., and you might get off lightly. Besides, with RIAA itching to make examples out of people, anyone busted for it should just admit it, comply, then your lawyers can try to spin it to show how well you complied and cooperated, etc…

This is why I believe a case on Law and Order is absolutely brilliant. This guy was about to be busted for murder and rape, and his computer had huge amounts of evidence on it. So, he placed an electro-magnet beside his door. The police came in, he was pretending to delete files so that they would immediately take the computer and transport it to evidence. They took the PC out the door, and boom. Wiped clean, and since it was the police officer that did it, they couldnt bust him for destroying the evidence. While that wouldnt really work since its kind of hard to hide an electromagnet in real life from the police, it is a nice concept.

When this was a big issue I didn’t use itunes or such at the time I used kazza and just to be safe I had 2 HDD and if that was to come in the letter they’d see the new one without no music downloads and such and if it was to get worse I had my trusty sledge hammer ready to pound the original HDD. Sledge hammers are your best friend in need I think. :smiley: