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Federal court throws the book at file swapper

25 August 2006 10:03 by Dave "Davedough" Horvath | 93 comments

Federal court throws the book at file swapper US Federal District Court had been trying to go forth with a case of Arista Records v. Tschirhart, which brought up charges of illegal file sharing of songs owned by Arista. In a recent development, the user Tschirhart, knowing she would have had to hand over her hard drive for evidence, used a "wiping" software on the hard drive to clear any incriminating evidence off.

In response, Arista filed a pursuant to Fed. R. Civ. P. 37(b) which basically states that the courts allow the strictest of punishment allowable by law due to the desctruction of evidence. The courts, in turn, approved the plaintiff's request if they can come up with a summary of damages within 30 days.

Arista claims that there were allegedly 200+ songs from their label on her hard drive and is set to pursue recovery of up to $150,000 per infringement.

By pushing the case into default, coupled with the fact that the defendant herself destroyed the evidence vital to the case, the judge awarded the ability to pursue the maximum damage reimbursement possible and felt that lesser punishment was not warranted.

In an unfortunate turn, it appears that the courts and Arista records are setting out to make an example out of one lowly file sharer.

Source:
InternetCases.com


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    Discuss this article!  There are more user comments available, read them here
    Ripper (AfterDawn Addict) 2 September 2006 8:02 Send private message to this user   
    lol exactly ;)
    Donuts (Junior Member) 2 September 2006 17:14 Send private message to this user   
    Teaches us too seek legal advice before before doing ANYTHING.
    Ripper (AfterDawn Addict) 3 September 2006 1:35 Send private message to this user   
    What? Seek legal advice on how to not get caught d/l'ing torrent files which are illegal - ye sure that's the way to go :P

    lol
    borhan9 (AfterDawn Addict) 3 September 2006 1:44 Send private message to this user   
    @Ripper,

    Man Thanxs for pointing that out it made me laugh :) LOL I couldnt say it better myself.
    Donuts (Junior Member) 3 September 2006 2:09 Send private message to this user   
    Ripper, I mean how best to handle the situation once one is caught ;). A lawer would have advised her not to wipe her hard drive and then the damages would not be so big. (Unless she some bad-ass kiddie porn and on it as well and the mp3's were just something on side)
    Ripper (AfterDawn Addict) 3 September 2006 3:01 Send private message to this user   
    @bohran9: Ye couldn't resist! :D

    lol

    Ye ok I getcha, as i said, just couldn't resist a poke lol

    :P
    tommich (Junior Member) 3 September 2006 7:52 Send private message to this user   
    I can understand the Artist/Label P.O.V. that their creation is their property and no one else should profit off it. I have no problems with someone getting busted for selling counterfeit CD's. Where I have an issue is with these outrageous fines for sharing. Granted, by sharing a song you might prohibit a potential sale, but following that logic means I should have to pay Black & Decker $200 for lending my neighbor a Power Drill. Killing, Assaulting, Stealing, Vandalizing are crimes, and righfully so. It's getting out of hand however, when it becomes illegal to "share".
    Ripper (AfterDawn Addict) 3 September 2006 7:55 Send private message to this user   
    Quote:
    but following that logic means I should have to pay Black & Decker $200 for lending my neighbor a Power Drill.


    Good point. I agree. Illegal to share? Maybe everyone at the RIAA mother's didn't teach them to share! lol
    XENON (Junior Member) 3 September 2006 9:04 Send private message to this user   
    No their mom's taught them to share but only after telling them to charge anyone an exhorbitant price to share it, have all waivers and forms signed in double triplicate [that's 6 times ;-)] And have a team of lawyers on speed dial so they can sue everyone into chapter 11 even after the contract is honoured!
    ZippyDSM (AfterDawn Addict) 3 September 2006 9:13 Send private message to this user   
    XENON
    Chapter 11 DENIED,you are not rich or a LARGE corporation...have a nice day!
    Ripper (AfterDawn Addict) 3 September 2006 9:19 Send private message to this user   
    Lawl
    XENON (Junior Member) 3 September 2006 9:32 Send private message to this user   
    zippy

    Take a chill pill My point was they would sue you into bankruptcy. Chapter 11 may deal with corporations or the rich but it DOES deal with bankruptcy.

    So YOU have a nice day!! :P
    ZippyDSM (AfterDawn Addict) 3 September 2006 9:41 Send private message to this user   
    XENON
    CHap 13 is normal bankruptcy,where you pay monthly to the court,Chap 7 is a liquidation of assets the court taking what it can from you to pay off your debts.
    I am unsure about Corporate but their bankruptcy laws have not been altered much its the Normal peoples bankruptcy thats been screwed over...

    done both........its not a pretty thing....
    XENON (Junior Member) 3 September 2006 9:45 Send private message to this user   
    Zippy. Thanks for the clarification. Your tax laws are so voluminous that it would probably choke
    a T-Rex!
    ZippyDSM (AfterDawn Addict) 3 September 2006 10:06 Send private message to this user   
    I don't do taxes I don't fool with that sht *L*
    besides they already know how much I get they give it to me *L*
    Altho I'd rather have a job and do taxes 0_o *L*
    being able to think all the time is mind numbing ><


    I am disabled BTW.
    porterr (Newbie) 3 September 2006 23:57 Send private message to this user   
    There is an unsubtle point you are missing here: The penalty is NOT for downloading files (what files?), the penalty is for wiping the disk when she knew she would have to turn it over. This is a procedural ruling that has nothing to do with whether she had copies or they were legal, it is for not following the procedural rules.

    IOW, how to take a hard situation and make it much worse.
    ZippyDSM (AfterDawn Addict) 4 September 2006 7:18 Send private message to this user   
    porterr
    thats only half right,they are basing the pently on what she could have had and trumping up the charges because she wiped it.
    nchantim (Newbie) 4 September 2006 12:54 Send private message to this user   
    So, if she wiped the hard drive, there is no evidence on it. Surely for destruction of evidence there must be some evidence to start with?
    If I say you have x on your hard drive, but if you wipe it and you didn't have x on it, then how is that destruction of evidence?
    Or is this a court requiring an individual to incriminate themselves?
    It's not like Arista had her hard drive, she broke into their offices and destroyed it... it was HER hard drive.
    FredBun (Senior Member) 4 September 2006 18:52 Send private message to this user   
    I cant beleive they got away with that
    hot_ice (Senior Member) 10 September 2006 9:41 Send private message to this user   
    30 Million dollars, is a hefty sum. If I remember exactly, someone got caught distributing in the thousands (article at afterdawn) and got less than that.

    I don't get it, isn't the law supposed to be a relative thing?
    solargame (Senior Member) 10 September 2006 15:06 Send private message to this user   
    so, who here as ever heard of anyone being sued for 30 million dollars and jail time for stealing some cd's from a store. I think the punishment should be being forced to buy every song at 2x the price.

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    JimMrBass (Junior Member) 1 October 2006 16:32 Send private message to this user   
    Why didnt she just go buy a new hard drive the same size as the original. Then reinstall all her data except for the software to download the songs and let them have her computer.
    XENON (Junior Member) 1 October 2006 16:42 Send private message to this user   
    If I knew that they were after me I'd get a drill and drill a few holes into the hard drive after I degaussed the thing then they can have it!! ^^ Since they can't prove that ANY song was on the drive. they have no evidence therefore they have no case. (oh wait this is the US where they MAKE UP crap to charge and convict you with! silly me)
    hot_ice (Senior Member) 5 October 2006 17:10 Send private message to this user   
    What would've been good, is for her to stage an accident for her computer, but the type that her hard drive is completely melted. But the forensic people can recover data, so its safer to say, oh! dear me, I believe someone stole my computer. lol.

    Computers are the most incriminating things you can have in your household. Especially if you have a 30 million dollar lawsuit pending, and your savings can only match a fraction of the penalty at best... ouf these people are inhumane, how can we allow such flagrant abuse of the law?
    XENON (Junior Member) 5 October 2006 19:14 Send private message to this user   
    hot ice

    while true that data recovery experts can indeed recover data, it depends on how the drive got to them. If the drive has been physically damaged (ie the platters have been damaged like a drill through each platter) or a strong magnetic field passes through the hard drive,[Being degaussed] then forensics can't recover any of it. I recommend to everyone they get any file shredding software (Evidence Eliminator Being one of the good ones) and use the DOD/NSA Standards to wipe clean your drive a MINIMUM of 7 times [erases it writes 1's and then erases again then writes 0's and repeats the erasure] the more times it's done the less likely any data recovery firm can recover anything but it does take some time. My old drive had all my accounting info and I used the program for 7 straight days and then, as an experiment had my friend who works at a data recovery firm try and recover something. They tried for a month and could not get anything that resembled a file of any type.

    Shows ya you can never be too paranoid when it comes to personal security.

    The Problem With The Genepool Is That There Are No Lifeguards! ;-)
    ZippyDSM (AfterDawn Addict) 6 October 2006 6:11 Send private message to this user   
    I have learned from Law and Order and CSI if you defrag after a format that will wipe the drive clean.

    if a PC is part of a investigation they better take it ASAP because if XP fails jsut right you can do a simple reinstall you have to format it and reinstall....



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