‘Making Available’ Case Outcome Doesn’t Erase anti-RIAA Precedent, Says EFF
The biggest challenge so far to the RIAA making- available theory of infringement is ending badly for a P2P defendant held to have destroyed evidence. But the precedent set in a judge’s earlier unambiguous rejection of the RIAA argument -- that files in a shared folder inherently are infringed -- still stands, a group that filed a friend of the court brief told us.
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Told it must show “actual” P2P distribution in Atlantic v. Howell by U.S. District Judge Neil Wake in Phoenix, the RIAA said defendant Jeffrey Howell repeatedly tried to erase evidence of actual distribution on his hard drive (WID Aug 11 p1). Howell, who represented himself in the case, claimed he erased the drive because he knew no other way to stop the P2P sharing claimed by the RIAA. He said he hadn’t known about any sharing until the group complained.
“The Court finds that the destruction of the evidence after repeated and explicit warnings about the obligation to preserve evidence was in bad faith and therefore warrants appropriate sanctions,” Wake said in an order from a pretrial conference dated Aug. 25. The judge will issue orders setting Howell’s punishment and ruling on his motion to dismiss, he said. A spokeswoman for the RIAA told us the group was “letting the order speak for itself.”
Fred von Lohmann, senior intellectual property lawyer for the Electronic Frontier Foundation, which filed a brief in the case opposing making-available, couldn’t say how many P2P cases have been cut short by so-called spoliation of evidence (WID Jan 15 p4). The RIAA won a Texas case, Arista v. Tschirhart, on that point (WID Aug 25/06 p2). “You have to appreciate how rare it is that people fight back at all” when the RIAA sues Internet users, a tactic that debuted five years ago this September, von Lohmann said. P2P defendants representing themselves in court, known as pro se defendants, have been a “mixed bag” in fighting RIAA suits, with at least one winning a judge’s favor, he said. The spoliation claim isn’t a slam dunk, he said, adding that in Capitol v. Thomas, the first P2P case to finish trial, defendant Jammie Thomas successfully argued -- with help from a lawyer and a Best Buy employee -- that her original hard drive died (WID Oct 5 p2). But “the average person has no reason to know how to treat your computer when you're sued,” a process that requires at least making a mirror copy of the hard drive, then putting the original in “deep freeze” before discovery, von Lohmann said.
The foundation originally tried to help Howell find a lawyer but itself couldn’t defend him, von Lohmann said. The last year has seen the group develop a high profile in court. Its appearance have included a recent successful challenge to an order obtained by the city of Boston against student researchers, trying to keep them from sharing their findings on cracking subway fare card encryption. The foundation has no lawyers admitted to practice in Arizona, and “quite frankly we don’t have the bodies” for a weeks-long P2P trial, von Lohmann said. The group expected a quick victory in the subway-fare case, he added.
Howell’s loss doesn’t undermine the precedent of Wake’s ruling against making-available, von Lohmann said: “I have no concerns on that front.” Most court precedents don’t depend on the “ultimate resolution of the case” that spawns them, he said. “We started this fight [for P2P defendants] as sort of a lone voice in the wilderness” in 2006, and two years later, P2P defendants have two legal precedents against making available, in Howell and the London-Sire case continuing in Boston (WID April 4 p5), he said. The RIAA has its own precedents from some judges, but “it’s a fairer fight.”