Breaking news: Judge orders sanctions in Atlantic v. Howell

Posted by Dan on August 27, 2008

Can a game publisher sue people for attempted copyright infringement? If the RIAA is any indication, they might end up being able to.

CNet news, which seems to lately have an eye on games law cases, is reporting that a federal judge has ordered sanctions against the defendant in a copyright infringement case for willful destruction of evidence, essentially guaranteeing he’ll have to pay damages to the RIAA. The defendant was sued after apparently accidentally uploading .mp3 files via KaZaa, that he claimed were intended to be transfered onto his personal music players. Though the case in question involved the music industry, it has grave implications for the games industry as well. The decision sounds a death knell for what was on the road to becoming a significant victory for fair-use advocates and pirates alike, something that would have been a powerful blow to game publishers and distributors. More after the jump.

The case, Atlantic v. Howell, has been a closely watched one, ever since the judge denied the RIAA’s motion for summary judgment back in April. The RIAA’s theory of the case was based on an argument that “making available” copyrighted material for piracy was the same thing as piracy itself (more detail below). The court had originally granted summary judgment on the direct infringement claim in favor of the RIAA, but it was appealed and vacated, on proof of evidence that the defendants, Jeffery and Pamela Howell, had no knowledge of the KaZaa network’s method of uploading files, and accidentally made their own personal files available too. (More information on the appeal, and assignment of error, is available here.)

The case drew the attention of the EFF, who provided assistance with counsel for the couple. The EFF argued strenuously in their brief that in order to prove infringement, the RIAA must show distribution, and that “making available” cannot constitute distribution. The judge agreed, and in his order denying the RIAA’s summary judgment motion, he said:

“The court agrees with the great weight of authority that § 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public . . . Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder’s exclusive right of distribution.”

Flash forward to today. According to CNet,

Judge Neil Wake ruled Monday that [Howell] . . . had willfully and intentionally destroyed evidence related to his peer-to-peer activities after being notified of pending legal action by the RIAA, according to a report Tuesday in Ars Technica. Furthermore, since it was done in bad faith, it “therefore warrants appropriate sanctions,” the site reported.

Howell represented himself, being unable to afford an attorney, though he had counsel support from the EFF. This may have been his undoing.

“According to the RIAA’s brief, Howell destroyed evidence on four separate occasions after first receiving the prelitigation settlement letter and later being served with the lawsuit. The RIAA’s forensics experts found that Howell uninstalled KaZaA and deleted everything in the shared folder, reformatted his hard drive, downloaded and used a file-wiping program, and then nuked all the KaZaA logs on his PC. “Defendant’s intentional spoliation of computer evidence significantly prejudices Plaintiffs because it puts the most relevant evidence of their claim permanently beyond their reach,” argued the RIAA. “The deliberate destruction… by itself, compels the conclusion that such evidence supported Plaintiffs’ case.”"

We can’t come to the same conclusion that the destruction of evidence implies the evidence supported the Plaintiff’s case. Unlike paper documents, there are many legitimate reasons why a defendant might have to wipe his hard drive. In Howell’s case, it is conceivable that he had downloaded a significant virus via KaZaa (he’s already admitted to being unfamiliar with the program’s workings), and the reformat, file-wiping, and log cleaning were incidental to removing the virus fully from Kazaa. We’ll simply never know, largely because he did not have counsel to adequately represent his interests here, something that unfortunately happens all too often in civil actions.

In any event, the judge’s order for sanctions is forthcoming, and we’ll bring it to you in another post as we find it online (similarly, we’re looking for the brief submitted by the RIAA in support of what presumably was a motion for sanctions or a motion to compel evidence. The article does not discuss the exact motion filed by the RIAA).

Documents:

• EFF Amicus brief opposing summary judgment, Jan. 11, 2008
• Order denying motion for summary judgment, April 29, 2008
• Record label’s supplemental brief re: summary judgment, Dec. 7, 2007
• Judge’s Order seeking additional briefing, Oct. 3, 2007
• Record label’s reply brief for summary judgment, Aug. 10, 2007
• Record labels motion for summary judgment, Jul. 5, 2007

Further updates can likely be found on the EFF’s page for the case.

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