RIAA ‘triumph’ over Texas mum
p2pnet.net News:- The Big Four Organized Music gang’s RIAA has claimed a victory in one of its sue ‘em all cases against a woman it says destroyed potential evidence.
The RIAA, short for Recording Industry Association of America, but owned by EMI (Great Britain), Vivendi Universal (France), Sony BMG (Japan and Germany) and Warner Music, with Warner the only American company, makes a hard and fast practice of targeting women and children who simply don’t have the legal or financial resources to defend themselves.
The so-called ‘trade’ unit wanted to raid Oregon mother Tanya Andersen’s hard drive. But her lawyer, Lory Lybeck of Lybeck Murphy, successfully argued the RIAA had to state exactly what it was looking for, and that an expert hired by Andersen herself should do the looking.
The RIAA is currently demanding that Kimberly Arellanes, the wife of serving US Army sergeant Frank Arellanes, opens her hard drive so RIAA ‘investigators’ can ‘prove’ she’d been engaged in “massive” copyright infringement.
The RIAA was demanding the same of Texas mother of two Delina Tschirhart, claiming she’d used p2p file sharing applications to, “offer music files” for “P2P for distribution,” allegations she’d flatly denied.
However, “In Arista v. Tschirhart, in San Antonio, Texas, the judge awarded judgment to the RIAA because the defendant – in violation of a court order directing her to produce her computer’s hard drive for inspection – had the hard drive ‘wiped’ first, thus deleting song files that had been downloaded,” says Recording Industry vs The People. “ The court noted that this ‘wiping’ irreparably prejudiced the RIAA because the only evidence it had without the hard drive was ’scant and piecemeal’.”
David. J. Schroeder, hired by the RIAA, said two disk-cleaner utility applications were used to wipe the hard drive. But another expert, Wayne Marney, hired by Tschirhart, said the fact data were scrubbed was, “consistent with defragmentation of the hard drive”.
US district judge Orlando L. Garcia has given the RIAA 30 days to, “submit a proposed order of default judgment that sets out their damages,” also ruling that Tschirhart will have to pay costs and legal fees.
Also See:
wanted to raid – Victim sues RIAA under RICO Act, October 1, 2005
successfully argued – RIAA p2p file share defeat, March 19, 2006
copyright infringement – RIAA goes fishing, August 11, 2006
Recording Industry vs The People – Where Defendant Wiped Hard Drive in Violation of Court Order, Default Judgment Awarded, August 24, 2006
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August 25th, 2006 at 6:41 pm
I don’t think the RIAA can get access to your personal equipment just because they claim you did something. It’s like me requesting to review the contents of my neighbor’s safe because I allege that he made a copy of documents about a trade secret from my business and put them in the safe.
August 25th, 2006 at 6:48 pm
I’ve sold all my old computer HD’s and other computer parts at spring and fall yard sales that I’ve held over the years. My last yard sale was several months ago. I did delete the hard drives before selling them using “format c:” command.
If the RIAA should decide that they want to come after me for any past sins I’d have no way to figgure out where these old computer parts are now.
My current system has two fresh HD’s running Linux but, there is no music on it.
August 25th, 2006 at 7:12 pm
I’ve sold all my old computer HD’s and other computer parts at spring and fall yard sales that I’ve held over the years. My last yard sale was several months ago. I did delete the hard drives before selling them using “format c:” command.
If the RIAA should decide that they want to come after me for any past sins I’d have no way to figgure out where these old computer parts are now.
My current system has two fresh HD’s running Linux but, there is no music on it.
August 25th, 2006 at 9:54 pm
there is no anti-RIAA spin you can put on this story. She ran disk-wiping utilities after she was told to turn over her hard drive. She admitted such to the judge. In such a case, I don’t see where the judge has any option but to default judgement to RIAA. She destroyed evidence. Whether it would have sunk or saved her, only she knows… My guess is it would have sunk her. Why else would you do something like that?
August 25th, 2006 at 10:24 pm
” She ran disk-wiping utilities after she was told to turn over her hard drive. She admitted such to the judge. In such a case, I don’t see where the judge has any option but to default judgement to RIAA. ”
While this is true, she was told not to by a judge, and did it
anyway … I can’t agree with this …..
“My guess is it would have sunk her. Why else would you do something like that? ”
It sounds sort of like …..
“If you have nothing to hide, then why can’t we search your
house ?? ”
Or Car
Or safety deposit box etc…..
In order to search your home, you must present enough EVIDENCE
to a judge to get a WARRANT in a criminal case..
The RIAA, by using CIVIL instead of CRIMINAL procedures has found
themselves a nice little loophole around criminal Due Process, haven’t they ??
Note the words of the court ….
““ The court noted that this ‘wiping’ irreparably prejudiced the RIAA because the only evidence it had without the hard drive was ’scant and piecemeal’.”
Scant and piecemeal evidence.
I’ll bet the “evidence” is too “scant” to justify a warrant in a
criminal case.
Heh, getting sooo much closer to a fascist state, and people that
think “If ya got nuthin ta hide, why not let em search” just make
it happen faster.
August 26th, 2006 at 12:10 am
“Tschirhart admitted to the judge that she was aware of her obligations to preserve the contents of the hard drive. The fact that she apparently did not live up to them led the judge to conclude that ‘defendant destroyed the material evidence deliberately and in bad faith.’ ”
Now, if I’m being wrongfully sued for something I didn’t do, and my hard drive is my only evidence that I didn’t infringe on someone’s copyright, WHY WOULD I ERASE STUFF OFF MY HARD DRIVE? It doesn’t make any sense. Why would she think the judge would drop the case if she conveniently erases case-related material off her drive? Like you say, this is a civil matter, not criminal. The same rules don’t apply.
I’m all for right to privacy. I hate the people who say “if you’ve got nothing to hide blah blah blah,” however you have to also excercise a little common sense.
I’ll use an analogy:
I’m on trial for murder. They key piece of evidence for the prosector’s case is that they think they might have found blood in my car. They don’t know if it’s the victim’s blood or not, only I know. They got a court order to check out my car. Judge reminds me that I have to keep my car intact throughout these whole proceedings and hand over my car. Later that day I take my car to a shop, and have the interior removed. The judge finds out about this and confronts me about it. I admit that I had the car’s interior removed. He finds me guilty of murder because I deliberately went against a court order, and the only reason I would do that is if I had something to hide. If the blood is mine, why would I have the interior removed BEFORE clearing my name? Answer: Because if they tested the interior, it would not have cleared my name.
August 26th, 2006 at 6:43 am
Do you really think that anyone who swears on a bible honestly tells the truth these days? You are deluding yourself if you do. Truth has little, if anything, to do with a court of law. In other words, all we know here is what each side has claimed. One side says the hard drive was wiped, the other says the drive was defragmented. So what do we, the public, really know? Absolutely nothing. Already we see folks clamoring to respond to this story, coming to defend one side or the other like lions and hyenas. But guess what? It doesn’t matter one iota. All we know is the information supplied by this story, which gives us everything we need to know except the complete and total TRUTH. We’ll probably never know what the truth actually was. See, all that matters is what you can convince a judge and/or jury of, truth be damned. This includes bringing in so-called “professionals” that are more often than not nothing close, testimony by witnesses that can’t ever be trusted as being 100% accurate and truthful , and pretty speeches by the lawyers of the defendant and plaintiff. More often than not the side that wins is the one who gives the most convincing speech, and it does not matter who is right or wrong in the case, and especially what the real truth is, which in all likelyhood is probably just an inconveniance for both sides anyways. The justice system in North America is a complete and utter farce, and everyone needs to realize that, the sooner the better, because it means any and all arguments you yahoos are going to come up with (and have already) in response to this story are completely, utterly, meaningless. Feel free to try though, and I know a lot of you will. Good luck having an argument when you don’t really have any truly useful ammunition though. Don’t believe anything I’ve just said? Sit on a jury yourself some time. Without a doubt, it’s a very enlightening and eye-opening experience. Have fun!
August 26th, 2006 at 6:52 am
“I did delete the hard drives before selling them using “format c:” command.”
You do realize that a format does not actually wipe the contents of a hard drive, right? It’s an extremely simple matter to retrieve what was originally on those drive of yours. The software to do so is widely available in many forms. I’ve read about people who buy used drives off of E-Bay to do exactly that in an effort to get at passwords, banking information, etc. Wiping a drive properly involves writing psedo-random data to all sectors of the drive a number of times, perhaps at least seven times over to be 100% safe that your data is truly gone. Do a Google search for DBAN which will get you an installer for floppy or CD that can be run outside of Windows. It’s free, open source, and widely used. Works quite well, though occasionally I have to fiddle in the BIOS of the PC I am using to get it to boot completely without crashing (It uses Linux).
August 26th, 2006 at 6:53 am
“I did delete the hard drives before selling them using “format c:” command.”
You do realize that a format does not actually wipe the contents of a hard drive, right? It’s an extremely simple matter to retrieve what was originally on those drive of yours. The software to do so is widely available in many forms. I’ve read about people who buy used drives off of E-Bay to do exactly that in an effort to get at passwords, banking information, etc. Wiping a drive properly involves writing psedo-random data to all sectors of the drive a number of times, perhaps at least seven times over to be 100% safe that your data is truly gone. Do a Google search for DBAN which will get you an installer for floppy or CD that can be run outside of Windows. It’s free, open source, and widely used. Works quite well, though occasionally I have to fiddle in the BIOS of the PC I am using to get it to boot completely without crashing (It uses Linux).
August 26th, 2006 at 7:03 am
I wonder if this is possible. Say you have software installed on your PC that is used for secure wiping; a lot of people do I’m sure, as many are paranoid folks like myself these days. Can the RIAA, seeing that you have such software installed, simply claim to the court that you wiped the so-called “evidence” off of your PC before they had a chance to get at it, even if you didn’t do such a thing? What I’m saying is that this could set a nasty little precident and aid the RIAA in future cases. Have wiping software installed? Oh, well, you must have wiped the “evidence”, that is why we can’t find any. Wow, all because you have such software installed, like as said as many probably do. Good luck fighting them should that end up being the case, as it was for the poor lady in this story. I could see it happening to me with the crappy luck I tend to have. My entire collection of music CD’s is contained on my hard drive too… hmmm….
August 26th, 2006 at 9:23 am
when all of this started with napster, grokster and kazaa years ago, all they needed to do was show a screenshot with an ip address attached to the file name.
nowadays they probably have more sophisticated software to collect and log ip addresses, but i think they’d also have to download the entire file in order to prove you had it because a file can be falsely named or be a fake and you don’t know what it is until you’ve completed the download.
but a lot of this is moot because it’s already been proved that collecting ip addresses isn’t a foolproof method. it’s already been shown to be faulty when they have wrong ip addresses or ip addresses of dead people or computers that have never had a p2p program installed.
August 26th, 2006 at 1:09 pm
Your whole reply misses (purposefully?) the key argument I’m making if you’re trying to rebut. I’m not claiming that the justice system is perfect. In fact, I completely agree with you that it’s a complete joke.
Unfortunately you (conveniently) missed the part where the defendant’s own expert did not dispute that disk-wiping utilities were run. The argument of disk-wiping vs defragmentation only comes into play for the 2nd round of apparent deletions that were logged on the computer, dated after the court order to mirror and turn over the drive. The plantiff argues that disk-wiping was done, and the defendant argues it was automatic defragmentation. Unfortunately, the defragmentation argument is complete and utter horse crap.
Defragmentation programs don’t erase files, they just re-order a file’s bits on the drive. If I have a file located at C:\stuff\MySong.mp3, and I have the drive defragmented, MySong.mp3 is still left intact at C:\stuff\MySong.mp3. Even if they are set up to run as necessary (Executive Software Diskkeeper can be set up to run constantly while the PC is idle), the fact is THEY WON’T ERASE ANYTHING OFF YOUR DRIVE. How much trouble would a defrag company be in if their program deleted files off a customer’s hard drive? Answer: lots
At the end of the day, my point still reigns supreme. She sunk herself when she violated a court order, and gave the judge no choice but to rule against her. Make all the arguments you want about how the justice system is all messed up. That doesn’t relinquish her responsibilities to obey the law.
I’m looking forward to how you’ll spin this… good luck!
August 26th, 2006 at 2:52 pm
“Unfortunately you (conveniently) missed the part where the defendant’s own expert did not dispute that disk-wiping utilities were run.”
Didn’t miss it.
“She sunk herself when she violated a court order, and gave the judge no choice but to rule against her.”
My opinion …
You are absolutely correct.
From a different poster ..
“I wonder if this is possible. Say you have software installed on your PC that is used for secure wiping; a lot of people do I’m sure, as many are paranoid folks like myself these days. Can the RIAA, seeing that you have such software installed, ”
The difference is, she admitted using the wiping utiity.
That’s the problem.
Now, my OPINION ..
just an opinion .. not trying to “spin” anything.
The RIAA has shown a pattern as of late, of running away when
forced to show any proof at all.
They have been counting on joe sixpack to be honest, and
admit to things that may or may not be criminal, and use it against
them, something far easier to do in a civil proceeding.
So ….
Admit NOTHING, demand to see their proof before saying anything.
Every time that proof has been demanded of them, they ran.
No spin here, she sunk herself. Can’t argue with that.
Admit nothing, demand proof, they’ll run.
They have already shown that.
August 26th, 2006 at 5:03 pm
“Defragmentation programs don’t erase files, they just re-order a file’s bits on the drive. If I have a file located at C:stuffMySong.mp3, and I have the drive defragmented, MySong.mp3 is still left intact at C:stuffMySong.mp3. Even if they are set up to run as necessary (Executive Software Diskkeeper can be set up to run constantly while the PC is idle), the fact is THEY WON’T ERASE ANYTHING OFF YOUR DRIVE. How much trouble would a defrag company be in if their program deleted files off a customer’s hard drive? Answer: lots”
Sorry to disagree with you, but http://www.pcworld.com.cn/2000/back_issues/2040/pics/004034_02_05.jpg clearly shows the “Wipe Free Space” option in Norton Speed Disk.
Since they are claiming defragmentation, they must be looking for deleted files. Wiping the disk would leave nothing, not even a file system, and be inconsistent with defragmentation. Standard defragmentation without the wiping of free space would also have a good chance of overwriting most deleted files. After all, if you are shuffling file data around on the drive, what point would there be in retaining whatever data there might be in the free space? Doing so is usually pointless, and would make the defrag take much longer. Even if it was moved rather than overwritten it would still be much much more difficult to reconstruct individual files from it.
As an aside, regularly defragmenting makes it much much easier to recover deleted files which havent been overwritten.
August 26th, 2006 at 6:03 pm
This isn’t the first time the RIAA or MPAA has claimed that routine computer maintenance is the same as “wiping” evidence off the hard drive.
They’ve claimed before that “deleting” files, reinstalling the OS, and now, defragmenting the FS– all normal and customary activities, especially if you’re using a crummy OS/FS like Windows/FAT/NTFS– destroy evidence. Never mind the file tables, free clusters, and slack space that can still retain plenty of evidence after any and all of these operations!
The scary part is that the court believed the RIAA’s expert over the defendant’s expert so completely, that the case is ending early in the RIAA’s favor. Perhaps if another reputable expert had provided services pro bono to clearly explain to the court that defragmentation still leaves telltale bits of files behind– and lots of them, at that– things would have turned out differently for this soon-to-be-bankrupt mother of two.
August 26th, 2006 at 6:32 pm
Thats why all my music remains on a secondary hard disk. They can have my main hard drive all they want. What will they find?
As cheap as 320gb hard drives are now, $113cad, theres no excuse to not have one just for your “valued” questionably legal data.
August 26th, 2006 at 7:41 pm
I cringe at the thought that “they” might be watching (hey, you never really know these days) but a second hard drive is what I use too. It is encrypted just to be safe, as is the drive I use for backups. Paranoid? Perhaps. Prudent would be a better word. After all, the government and self interest groups aren’t the only people that regular folks seem to have to worry about these days sadly. Should my PC ever be stolen, I won’t have to spend any nights worrying about whether they got into my personal data or not because I know they definitely won’t be able to.
Something else I was wondering, from reading here and over at Ars Technica. Say you did wipe your drive to get rid of the evidence and reinstalled a legit OS and software. Even if you used your PC for a few days, it should be pretty easy to tell the computer had been wiped recently, as was the case in this story (supposedly, doubt we’ll know the ‘real’ truth).
Now, say instead that I wiped my hard drive, rolled back the clock in BIOS by several months to a year, reinstalled the OS plus an application or two. Then every time I reboot, I roll the clock in BIOS forward several days, use the computer a bit, maybe download a few strategic files here and there, and keep repeating this until I arrive at the current date. Would it not look to a professional as if the computer had been regularly used for the past year or so? Might be a pain to do in actuality, what with all that rebooting. But, if it saved my ass, I would do it, and I am sure a lot of others would too. I suppose the so-called “pros” might catch on eventually, but they would never really be able to prove anything. Well, theoretically they shouldn’t be able to anyways, if my idea works and you did everything just right. What say you?
August 26th, 2006 at 8:13 pm
“I’m looking forward to how you’ll spin this… good luck!”
I probably should have made a new post rather than reply within a thread. I wasn’t trying to miss the key argument, as you put it. Only trying to point out (I am the original poster of “Truth and the court.” as well as “Wiping software.” by the way) that we’ll never know the whole unadulterated truth in this case – or any for that matter – ever. The truth simply does not exist in a court of law. Only different versions of the same story and a whole lot of doubt. I’ve seen it first-hand myself.
I did find and read the court document after I posted, and it looks to me like the defense did a horrible job. Likely he wasn’t techno-savy enough to make a good defense case to begin with, and I feel sorry for the woman in this story, guilty though she may be (but not nearly as guilty as the RIAA would like us to believe), simply because she had an idiot lawyer.
Plainly put, the job of the plaintiff is to make as compelling an argument as they can against the defendant, and the defendant must counter with as compelling an argument as possible. Two versions of one story. Both can’t be true, can they? We’ll likely never know the real truth because it never saw the light of day, and never will. All that matter is convincing the judge and/or jury that your version of the truth is more true than you opponents. Doesn’t matter what the real truth was.
I guess I might have a bit of a slanted view on things and see them from a unique perspective. When I think about it, I’ve always had to live with a similar stigma. Now matter how often I told the truth (which was about 90% of the time, honest!), my parents would never believe me. Found a five dollar bill? Hmm, must have stolen it. Whack across the head! Something got misplaced around the house? Must be my fault. Whack across the head! Always guilty, never mattered what the truth was. But I digress.
You’ll have to forgive me when I tell you that I have no faith in the justice system what-so-ever. It’s just not designed with the truth in mind, only second hand fairytales meant to resemble the truth, or something close enough to it that it sounds good enough to win a case. Maybe the court might work the way it’s supposed to in an ideal world, but then in an ideal world we wouldn’t need the court system, would we lol. Let me put it another way. The court relies heavily on the concept of reasonable doubt. Ask yourself why that is. Think long and hard about it.
Speaking of reasonable doubt, I could go off on a whole other rant about it having served on a jury. It doesn’t really work either, and for good reason. But I’ll save that for another time I think. I’ve already send plenty to get my point across. Just remember this; witches were burned at the stake not because they were witches, but because they might be.
August 26th, 2006 at 8:17 pm
They’d only have circumstantial evidence, at the most, if they were suspicious you did what you said you would if it saved your ass.
August 28th, 2006 at 10:30 am
Some advise for downloaders that reside in Africa.
Next time anyone gets an infringement notice from Motungo Records do this, before a judge, or your lawyer has any say on the matter:
1. move your hard disk music filed to cds and store these in a secure place. Then erase the files from the hard disk using a program that wipes all traces from the disks.
2. make a few hundred (or as many as posible) copies of Motungo Records cds you purchased in stores and distribute them anonimously, meaning that no one will know where the cd’s came from. Write on the cd label: Free to copy”. This will really hit Motungo Records where it hurts.
Don’t worry about artits. Motungo Records does not pay the rtists anyway. They are the typical run of the mill record company. They steal from everyone.
Never mention this to anyone, incuding your lawyer. You never know who your lawyer works for, but they mostly work for themselves.
August 28th, 2006 at 2:29 pm
You’re absolutely right, if you can find the HD in the first place. I have no idea who bougth the old drive and so could not share necessary info with RIAA or the Jack-booted thugs. I do run “Eraser” now on my old drives before selling them. Cheers.