Don't disobey the judge and don't sue innocent people.
Today's bit of free legal advice comes to us from the United States District Court for the Western District of Texas, where we learn that defendants should not use disk-cleaning utilities to wipe portions of their hard drives before turning them over to plaintiffs in the course of discovery. Delina Tschirhart did just this, according to District Judge Orlando Garcia, who was none too pleased about the situation.
Tschirhart was engaged in a lawsuit with the RIAA, which had sued her for downloading more than 200 music files in 2005. The files in question were downloaded using BearShare and iMesh by a user named "ugotburnedby21"—we're going to go out on a limb and assume that one of her two children were involved (the judge notes that these three were the only people with access to the computer). When discovery began, the RIAA asked the judge for a mirrored copy of Tschirhart's hard drive in order to look for evidence of copyright infringement. The judge agreed. The drive was turned over to computer forensics expert David Schroeder, who claimed (and the defendant's own expert did not dispute) that data was removed from the hard drive before it was turned over.
News source: Arstechnica
Today's bit of free legal advice comes to us from the United States District Court for the Western District of Texas, where we learn that defendants should not use disk-cleaning utilities to wipe portions of their hard drives before turning them over to plaintiffs in the course of discovery. Delina Tschirhart did just this, according to District Judge Orlando Garcia, who was none too pleased about the situation.
Tschirhart was engaged in a lawsuit with the RIAA, which had sued her for downloading more than 200 music files in 2005. The files in question were downloaded using BearShare and iMesh by a user named "ugotburnedby21"—we're going to go out on a limb and assume that one of her two children were involved (the judge notes that these three were the only people with access to the computer). When discovery began, the RIAA asked the judge for a mirrored copy of Tschirhart's hard drive in order to look for evidence of copyright infringement. The judge agreed. The drive was turned over to computer forensics expert David Schroeder, who claimed (and the defendant's own expert did not dispute) that data was removed from the hard drive before it was turned over.
News source: Arstechnica
In the UK at least, if you encrypt data and don't provide the keys when required by the Police (and I imagine this is the same for a court order) you are essentially perverting the course of justice and can be imprisoned immediately. I'm not 100% on the maximum sentence but it is certainly measured in years in prison.
Certainly a stupid thing to do in the UK and if the US has a similar law, there too.
Which reminds me, if I ever go to America, I'll make sure that I encrypt all incriminating data
Indeed, that's the one. Having a rather poor memory day today.
After checking though, it appears this specific offence has a maximum jail time period of 2 years, and nothing regarding fines.
you would think that was the case. who is to say what she deleted? who is to say exactly what computer was at the IP address identified by her (think WEP with a determined neighbor who wants to use their access for less than legal purposes)? simply deleting information off the drive is not a crime, in fact, there is no direct evidence of anything, it is all circumstantial (RIAA CLAIMS that someone at their IP was downloading this or that file - its been shown before that they are very aggressive when it comes to file names, RIAA claims that the hard drive in question is the same hard drive that was in the computer which they identified as the one on the IP address that downloaded this or that file, RIAA claimst that the relevant files were deleted from this supposed incriminating hard drive from this supposed incriminating computer on this supposed incriminating LAN, etc etc etc...).
Its like saying that I had shot a man from my property, when someone walked on my property and shot someone else from my property. The police come and want to see my gun, which I had very recently taken apart and carefully cleaned. The gun is at first glance very similar to the one used in the crime. They do ballistics forensics on it, but determine that my cleaning altered the relevant data. Therefore I am guilty? OH I DON'T THINK SO!!!
Shes guilty, stupid and got what she deserves. I hate the RIAA as much as anyone but if everyone just could go against court orders youd have criminals jumping the boarder every day ect. No, doesnt work that way sorry.
Shes guilty, stupid and got what she deserves. I hate the RIAA as much as anyone but if everyone just could go against court orders youd have criminals jumping the boarder every day ect. No, doesnt work that way sorry.
No, I'm sorry I wasn't paticularly interested in reading the article. If she simply deleted the files and presented what still amounted to evidence to the judge and RIAA, then she is guilty AND stupid.
You CAN go against court orders any day of the week. You can break the law with impunity. Everyone does it every day. Everyone breaks the law every day. Speeding, failing to yeild, failing to collect sales tax at yard sales, failing to represent eBay income on your taxes, corporations doing every last thing they can to avoid taxes and maximize profits, people doing recreational drugs like alcohol before they are 21, driving with a suspended license, people downloading music on the internet, the President making false statements to Congress...breaking the law is human nature.
My point? Just because something is illegal doesn't make it wrong. Also, just because something is wrong doesn't mean it is illegal. Sometimes however those two things do manage to coincide. I believe the downloading issue is pretty gray, and the punishment isn't fitting the crime. I also feel the RIAA tactics are illegal and unjust, and a worse crime against the public than the original offense. Therefore, my final opinion is one of resistance against the RIAA and their entire stance on the issue. Life is like that, you have to make judgement calls using your own wits and common sense every day. Its like in California where modding your car is considered by the law enforcement there to be a declaration of criminal intent. The problem isn't the cops and their enforcement of the law, the problem is the law itself. Just because lowering your car 1.5" is illegal doesn't mean it is wrong, regardless of what the law on the books might be.
Finally, if there was evidence she deleted the files, then she didn't technically violate the court order, the evidence was still on her hard drive in spite of her deletion and apparently intact. The relevant information needed for the lawsuit was presented to the court and the RIAA. This entire article then would be a PR release by the RIAA warning that if you even try to resist you will be nailed harder. I had assumed that when the Neowin blurb said she used a disk cleaning utility that it actually cleared the free space and the drive was free of any traces of the download or the subsequent files. Actually reading the article it sounds like she defragmented the drive a couple times along with using a disk cleaning utility or two. It sounds like there was no direct evidence of the original files, just logs from the deletion programs showing that some deletions had taken place; the article suggested there were logs of P2P programs and music downloads...I suspect those logs weren't actually on the hard drive in question but were provided by the RIAA from an external source or her laywer and the judge wouldn't have speculated on the deframentation. The judge declaring that disk defragmenters are run automatically is pretty funny, considering I don't know a single person who defragments using an automated schedule. Perhaps at courthouses and in business places where you have an IT department which correctly maximizes the capability of the software...
Blatent contempt of court? The RIAA files lawsuits left and right without regard for the truth. Their automated system and lack of consequences allows them to sue with impunity and without a care in the world, innocence or guilt be damned.
You forgot the tons of Diskeeper users that do exactly just that.
My guess on this case was she deparately did a Google search on "remove all traces of evidence on my computer" without bothering to check on the most effective software to use.
I do however agree on your point on the RIAA or an external source possibly providing bogus download logs and secretly inserting them onto the drive. They think they're above the ****ing law - why not?
even better go to place where they mod metal and pay some to melt your hard drive... if you have enough time before they come to get your hard drive., and just install new hard drive and put your stuff back, and make it look new OS install has few usages.
You'd think on a nice and messy drive you could, after running a file shredder, REfragment your disk. Basically take everything that is on it and jumble it around. Overwrite large swaths of currently free space, leaving the remnents of the legitimate and recently moved files for those who'd like to take a closer look to pore over...
Good thing the RIAA has no power in my country.
I just have one thing to say: yeah right
I just have one thing to say: yeah right
Ditto.
You destroy a hard drive after being told to present it as evidence, you'll be found in contempt of court, and possibly gaoled. Everyone loves prison, right?
The best solution is to suck it up and vigorously defend yourself in court.
The bestest solution is not download illegal music to begin with, and if you have kids keep tight controls on what they do on YOUR computer.
Yes, but how would the RIAA know to sue you if you did not at least login on a file sharing network and download a file?
BTW, I'm not picking a side here except that anyone who destroys evidence deserves the harshest penalty allowed.
How can the RIAA say that they have this evidence that you downloaded all of these songs, but then to prove it they need your hard drive. It doesn't make sense. If you have enough evidence to sue then I would have to see that evidence myself. I am no lawyer, but I am sure that a motion to compel would make the RIAA lay all of their cards on the table. I can't see how they need your hard drive if they are intercepting what you are supposedly downloading.
I don't use file sharing programs, but I also refuse to purchase music and this is why.
My 2˘.
Just because they have evidence that she deleted data doesn't mean that it was illegal content or file sharing related.... i.e. it could have been highly sensitive information.
Since when has wanting to optimise your hard drive and improve data access speed been seen as a deliberate attempt to destroy data? Seems to me that this judge knew absolutely nothing about defragmentation programs and wasn't qualified to make that statement.
1. Wipe drive.
2. Set date in CMOS to a week or so prior, or other legimitate pre-court-order time.
3. Reinstall windows.
4. Replace CMOS battery so that date is lost (else logs can show you changed the time). Hold onto reciept.
5. Produce drive to court ... you got a virus a week ago and had to reinstall.
i'm sure the court would see it that way.
regular magnets may scramble the data so your computer have problems reading it, but it won't be a problem restoring it.
regular magnets may scramble the data so your computer have problems reading it, but it won't be a problem restoring it.
scramble the data... have problems reading.. but not recovering it... WOW... that's new one. Do you know anything about magnetic storage?
regular magnets may scramble the data so your computer have problems reading it, but it won't be a problem restoring it.
scramble the data... have problems reading.. but not recovering it... WOW... that's new one. Do you know anything about magnetic storage?
Actually it appears that he knows a hell of a lot more about it than you do. He said that the magnets may scramble the data in a way that YOUR computer has trouble reading it, but that it could still be recovered. Obviously you have never heard of data recovery companies that do this sort of thing for a living. These companies have special equipment that can recover data even from severely damaged hard drives. Time to educate yourself some more before making yourself sound stupid.
regular magnets may scramble the data so your computer have problems reading it, but it won't be a problem restoring it.
scramble the data... have problems reading.. but not recovering it... WOW... that's new one. Do you know anything about magnetic storage?
Actually it appears that he knows a hell of a lot more about it than you do. He said that the magnets may scramble the data in a way that YOUR computer has trouble reading it, but that it could still be recovered. Obviously you have never heard of data recovery companies that do this sort of thing for a living. These companies have special equipment that can recover data even from severely damaged hard drives. Time to educate yourself some more before making yourself sound stupid.
Yeah. Alrighty Then! I have heard of "data recovery company's". Let's do this... ship me your hard drive. I'll put a magnet on it, we'll send it in.. and see what happens. I like how you claim I "know nothing" about what I'm saying. Nice assumption. You sound like some teenage tool. :-) Can I ask you one question? How does a Hard Drive store it's data?
Now lets say you download a Simpsons or South Park episode from that P2P program and get an evil "we will sue you" letter from Fox or Comedy Central. Things explode and you are standing in front of a judge. They have found all your music and trying to push that against you as copyright infringement as well. What do you do? What would most likely happen to you?
Are television producers going after people who download television program online through P2P?
you're simply buying the rights to listen to that music. Now because you own the rights to the music - you can do whatever you want to the cd, copy the music to your computer (anything you want) as long as you're not sharing it (which they can't prove) or letting other people listen to it.
they would say "you were sharing this music aswell"
and you would say "prove it, you're the one sewing me"
and they wouldent be able too.
Could you defend your self if this scnerio would to happen
You have your 160GB in your computer, you have set up ALL the software you typically use and would be logged by who ever monitors you.
Then after thats set, you switch it with another 160GB which is a mirror of the previsous one, and you use this HDD as you main everyday HDD.
when the letter or phone call comes in saying that your in trouble and the whole process occurs, couldn't you swap the HDD with the first one....which has no trace of files being deleted other than some dummy files you create and delete to make the HDD look used.
i wonder...would that work?
aside from the you can't sue me unless you where breathing behind my shoulder looking at everything i do as hard evidense crap...or the you can't point an IP at me..i'm a person blah blah...or the i don't know how to use a computer bit..
Also I fail to see how writing 0's, using a 2nd hd ect will solve anything. Handing one over that is all o's will ring bells out that something is suss in about 0.2 seconds. Likewise would handing over a second data as much of the info storred wouldnt match up, especially if they are granted access to ISP logs ect.
Also I fail to see how writing 0's, using a 2nd hd ect will solve anything. Handing one over that is all o's will ring bells out that something is suss in about 0.2 seconds. Likewise would handing over a second data as much of the info storred wouldnt match up, especially if they are granted access to ISP logs ect.
I imagine most of the posters here who claim they would destroy the data would, if faced with a lawsuit and court order, not try it. I think the judge let this particular person off easy:
However, if she had secure-deleted the files from a seperate hard drive then defragmented the drive, all evidence and proof of deletion would be lost. Simply discard of the seperate hard drive afterwards, since the RIAA wouldn't know you had a second hard drive from IP monitoring, problem solved and case closed.
If you want to be completely immune to the RIAA i suggest you start with the detection. To be completely safe on downloading anything from a P2P network (legal or no), you need to stop the RIAA or its flunky companies who scour the P2P network from connecting to your computer via the aforementioned P2P program.
Use PeerGuardian 2 to block them all out, so even when sharing legal files over a P2P network, you dont have a chance of getting the brain-less oafs at the RIAA sueing you with a little bit of evidence.
Stop the detection and you stop the chance of being sued by them.
Last edited by Xavien on 28 Aug 2006 - 04:27
Now you give the case of someone stole your wireless access. This has many faluts in it also. Im sure you will find in your manual something to the cause of "This Device....FCC regulations". That dose a few things to you and you are then agreeing to some things also by turning the device on. You are now responable for your wireless signal. Witch in a way you need to start loging whos on your network. Cause the ISP covers there ass with it came from this IP witch was on this MAC address, now you need to know whos MAC address was on your network.
Not trying to take sides here even though it sounds like im on the RIAA side, but if your going to do it you need to cover your ass on all fronts. Ma and Pa need to learn if there going to do it, theres chances you take. You get burned its your own dam fault.
The FCC regulations say that the device cannot cause harmful interference. But yes, as a citzen you are responsible for what you buy. However, I am not sure that would hold up in court. People have no clue how networks work, and many would argue they should not be allowed unto the Internet until they do. People would not accept losing Internet now, as they've had access for such a long time, so it will remain.
A judge cannot say "you should have known" when everyone who knows anything about networks know that over 50% of the users "do not know".
or even better just download your songs from an internet cafe and put them on your USB drive