One Occasion In Which Wiping Is a No-No

Mike Riggs | August 28, 2008

Federal District Court Judge Neil Wake of Arizone recently ruled in favor of the Recording Industry Association of America after the association proved Jeffery Howell—who the RIAA accused of distributing music through P2P downloading—uninstalled Kazaa (or "KaZaA," for you old school P2P junkies), deleted all his shared tunes, and wiped his hard drive. In a cruel twist, Wake had previously denied the RIAA's request for a summary judgment against Howell, arguing that

"[A] distribution must involve a 'sale or other transfer of ownership' or a 'rental, lease, or lending' of a copy of the work. The recording companies have not proved an actual distribution of 42 of the copyrighted sound recordings at issue, so their motion for summary judgement fails as to those recordings."  

No doubt flushed from his small, yet heady victory and anticipating trial, Howell cleaned his computer. The RIAA caught wind of this and argued that the missing files "compel the conclusion that such evidence supported Plaintiffs' case." And in no time flat, Howell has gone from paladin to chump.

Ironically, a number of digital observers cheered Wake's reversal of an earlier ruling against Howell, calling him "A judge who understands both the technology, law and separation of powers doctrine." A lot of people thought Howell was going to win this thing, but, like a number of other digital revolutionaries, he opted to represent himself for lack of funds, and thus had no legal counselor around to explain how dumb it is to destroy evidence.

I wonder if this will give the RIAA a second wind—the knowledge that a sharp eye for legal procedure can win over the most P2P-sympathetic judge? Because it doesn't have much else going for it. A more down-to-earth question: What did the RIAA accomplish? Howell can't afford a lawyer, so I'm guessing he won't be able to pay whatever damages Wake awards the RIAA. Perhaps the association thinks that putting some foolish kid in debt up to his ears for the next century will act as a deterrent...No, I can't even suggest that with a clean conscience.

In other copyright news: India is now the only place on Earth where one can play Scrabulous, as Facebook has blocked the application everywhere else. (But don't worry, the resourceful and cunning Agarwalla brothers have come up with something almost as good: Wordscraper.) According to founder Tim Westergren, Pandora may not be around much longer, but there's still hope for Internet radio junkies.

reason on the RIAA here. More evidence of my not-so-secret love for Scrabulous and the Agarwalla brothers here, here, and here.  Jesse Walker on the trials and tribulation of Internet radio here.

Comments

Elemenope|8.28.08 @ 11:11AM|#

Good cause, stupid paladin.

In other, entirely OT news, am I the only one for whom the George Will response post disappeared off of Hit & Run (presumably to be hoarded and gnawed upon by server squirrels)?

Fluffy|8.28.08 @ 11:14AM|#

No, LMNOP.

I was about to post "Speaking of wiping, who wiped the George Will thread?"

A Biden thread disappeared for me too a couple of days ago.

H&R has been acting all Matrixy lately. Look out for deja vu.

Elemenope|8.28.08 @ 11:20AM|#

I found it! It got sucked off the *real* blog and placed in that shadowy reflection of an approximation of a blog that is the 2008 Convention ghetto.

|8.28.08 @ 11:30AM|#

There are two blogs, Fluffy. Regular Hit & Run and the Convention Blog. The links are at the right.

robc|8.28.08 @ 11:32AM|#

Epi,

The problem I have run into is that when on the convention blog, the "hit and run" button on the left takes you to the convention blog main page instead of the H&R main page. Caused me great confusion yesterday.

Elemenope|8.28.08 @ 11:33AM|#

The problem I have run into is that when on the convention blog, the "hit and run" button on the left takes you to the convention blog main page instead of the H&R main page. Caused me great confusion yesterday.

Did that to me too, but only fitfully.

Fscking squirrels.

|8.28.08 @ 11:36AM|#

Open one tab to the convention blog and one to the regular blog, and refresh as required. Separation of powers and all that.

Elemenope|8.28.08 @ 11:49AM|#

Epi --

Did you get replaced by a pod-person overnight? Last night you were railing about the convention blog.

Rhywun|8.28.08 @ 11:56AM|#

I use RSS - the "two" blogs appear as one to me.

Rhywun|8.28.08 @ 11:59AM|#

Perhaps the association thinks that putting some foolish kid in debt up to his ears for the next century will act as a deterrent...No, I can't even suggest that with a clean conscience.

Why not? I think that's exactly what the RIAA would like to do.

And while we're at it, is there a more divisive issue among libertarians? If you support copyright, the RIAA's actions are perfectly legitimate... right?

Elemenope|8.28.08 @ 12:04PM|#

If you support copyright, the RIAA's actions are perfectly legitimate... right?

If you support copyright, the RIAA's actions are still monumentally prickish. Legitimate perhaps in the bare sense of "protecting one's interests". But much of their shenanigans are not even legal under current (highly favorable to them) law.

|8.28.08 @ 12:07PM|#

Did you get replaced by a pod-person overnight? Last night you were railing about the convention blog.

I still think it's stupid as hell, I was just giving my solution.

Elemenope|8.28.08 @ 12:10PM|#

I still think it's stupid as hell, I was just giving my solution.

Fair 'nuff.

Elemenope|8.28.08 @ 12:11PM|#

And while we're at it, is there a more divisive issue among libertarians?

Abortion.

Shannon Love|8.28.08 @ 12:14PM|#

...he opted to represent himself for lack of funds, and thus had no legal counselor around to explain how dumb it is to destroy evidence.

What, he never watch a cop show? I think this had more to do with dumb than poor.

A more down-to-earth question: What did the RIAA accomplish?

The RIAA is seeking to establish a pattern of defense. Copyrights must be actively defended constantly or they can be judged to have lapsed even if the copyright has not expired by date. If you allow your copyrighted material to be swapped around as if it was public domain, then the courts will rule that it has passed into the public domain because no ordinary person could tell the materials was still under copyright.

If the RIAA stops picking on people, someone down the line will argue that the RIAA doesn't care if people copy its music without pay for any purposes.

Elemenope|8.28.08 @ 12:31PM|#

Copyrights must be actively defended constantly or they can be judged to have lapsed even if the copyright has not expired by date.

Uh, no. That only applies to trademark. Copyrights do not need to be defended to be defendable.

God, if you had said something like that at /., you would have been beat about the ears with a bamboo cane, forever.

Rhywun|8.28.08 @ 12:36PM|#

Abortion.

I should have specified "aside from the obvious" :)

Rhywun|8.28.08 @ 12:39PM|#

If you support copyright, the RIAA's actions are still monumentally prickish.

The RIAA is hardly alone in wanting to "set an example".

But much of their shenanigans are not even legal under current (highly favorable to them) law.

Like what?

Elemenope|8.28.08 @ 12:42PM|#

Rhywun --

Like ex parte shenanigans.
Like hiring unlicenced firms to snoop on people's computers.
Like breaking laws that they themselves have campaigned to pass, such as "making available" laws, to induce violations.
Like blanket subpoenas without proper legal foundation.
Like material misrepresentations of evidence.

Elemenope|8.28.08 @ 12:45PM|#

The RIAA is hardly alone in wanting to "set an example".

True. They have great company in the MPAA. And La Casa Nostra.

|8.28.08 @ 12:45PM|#

Can anyone explain why the internet radio brouhaha never gets straightened out? I mean, if the royalty payments go so high that the stations go out of business, the industry gets nothing, right? How is that good for anybody? Isn't solving this an obvious win-win-win?

robc|8.28.08 @ 12:52PM|#

Brian24,

Internet radio stations dont push the artists the RIAA wants pushed; they are less susceptible to payola. Not because the people running them are so much more honest, just due to size of their audience.

Rhywun|8.28.08 @ 12:57PM|#

Like... Like... Like... Like... Like...

I don't know law, so a lot of that is over my head, but... if that's all true how are they getting away with it?

|8.28.08 @ 12:59PM|#

robc,

That doesn't really seem like a reason for the industry to destroy them though. Seems more like a reason to be indifferent and take the money.

Elemenope|8.28.08 @ 1:05PM|#

Rhywun:

The great, fat, libertarian blind spot: They can (literally) afford to be bad.

You see, the RIAA is just a cartel lobbying and action group. If the absolute worst happened, not only does the RIAA have no assets to speak of, but their member companies can just wash their hands of the thing. Meanwhile, the member companies dump *tons* of money through them into lobbying and litigation, using the time-honored shotgun method to suits; if you sue enough people, eventually you'll win a few and/or get some favorable settlements.

When they're not busy doing that, they're busy writing legislation.

Rhywun|8.28.08 @ 1:37PM|#

the member companies dump *tons* of money through them into lobbying and litigation

I thought money doesn't buy favors. That's what I've read around here before, anyway.

|8.28.08 @ 2:05PM|#

I don't see abortion as being all that divisive for libertarians. At least not in comparison to certain other parties where failure to toe the line means you can't be in their club. Or did I just defeat my own point? Abortion isn't devisive for Democrats (for example) because you can't be one at all if you are aginst it? There is no division in the party because division is not an option.

|8.28.08 @ 2:37PM|#

bigbigslacker...you might mention that to Casery...I'm sure he'll be surprised to hear he isn't a Democrat, after having spoke at the convention even!

robc|8.28.08 @ 4:05PM|#

capelza,

IIRC, Casey is dead.

Shannon Love|8.28.08 @ 4:12PM|#

Elemenope,

Uh, no. That only applies to trademark.

Sorry, You're correct I wasn't paying attention.

I do seem to recall however someone advancing the idea recently or at least that some intellectual property lawyers were worried about it.

It does rather make a kind of sense. If you have "the right to copy" and can't or won't enforce that right, does it really exist? It is something like saying you have a property rights to a piece of land but you can control if other people come onto it or use it for their own ends.

Elemenope|8.28.08 @ 11:42PM|#

Shannon --

Well, one of the major differences is that a copyright *automatically* adheres to any created written work. You don't have to apply for it, like you do for a trademark, or a title deed for real property for that matter.

I think that difference more than anything helps to reinforce why a defense requirement is not necessary.

Anti-Globalism|8.28.08 @ 11:56PM|#

Government should let the record industry die. It has brought us unending garbage, and the only stuff worth buying is on indie labels anyway, and they don't care about piracy because they know that people who pirate either (a) buy the ones they really like later or (b) weren't going to buy anything anyway.