US file sharer fined $40,000 after formatting hard drive

The music industry has secured another victory in one of its thousands of cases against presumed file sharers. In written proceedings, an Arizona Supreme Court judge found in favour of the prosecuting record company and on Friday sentenced Jeffrey Howell to pay damages of $40,500 for the unauthorised distribution of protected pieces of music. Howell, who defended himself, will also have to pay court costs of $350. The case against Howell's now divorced wife was dropped.

As already predicted on Monday, the case ended shortly before the trial actually opened. Judge Neil Wake had upheld the application of the plaintiff for a fine on the defendant and given notice of his verdict. In cases where evidence has been tampered with or other offences relevant to the case have been committed, US rules of procedure give the judge a right to punish a party or to deliver a verdict without hearings. Lawyers acting for the Recording Industry Association of America (RIAA) had asked for a verdict against the defendant on the grounds that he had tampered with and destroyed, evidence.

Judge Wake concurred when substantiating his verdict. Howell, he said, had "brazenly" and quite deliberately destroyed important evidence, thus depriving the proceedings of any foundation. The seven-page substantiation – PDF file – says that, among other things, the defendant formatted his hard disk, ran a definitive data-deletion program on it, and then reinstalled the operating system, even though he had already been served with the complaint and the accusations were known to him.

The case against Howell attracted attention in April when Judge Wake ruled against the plaintiff, putting in question its standard line of argument that holding music in the "Shared" folder of a Kazaa program by itself already represented an infringement of copyright. By dismissing the application for a verdict in written proceedings, Judge Wake had signalled a trial, which following Howell's evidence tampering, now won't take place.

Howell has to pay interest on the fine at the rate set by the supreme court of 2.12 per cent. Given that he had no money for a lawyer, it looks doubtful whether the RIAA will see much of the fine. If Howell had had an expert legal adviser, this would not have happened, says the Electronic Frontier Foundation (EFF), which was involved in the proceedings as an interested party. The verdict itself is of more value to the music industry. The only file-sharing case previously dealt with ended in a guilty verdict and a fine of $222,000, but because of a procedural error admitted by the judge, this case is now likely to go to a re-trial.

Judge Wake is sticking with the total amount of damages he awarded in his first verdict of August 2007 and then revoked following an appeal by the defendant. He had set the minimum statutory damages of $750 on each of the 54 songs originally assessed by the plaintiff in Howell's Kazaa folder. During the proceedings, however, the number of songs potentially liable for trial dropped, because the RIAA investigators were only able to prove he had downloaded twelve songs. Whether that is sufficient evidence in principle to prove in court that copyright has been infringed is something that will not now be decided in this case.

(trk)