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spoliation of evidence?

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Justaskingq

Junior Member
What is the name of your state (only U.S. law)? Florida
I was recently part of a copyright infringement lawsuit vs many does that was dismissed. Am I still under obligation to not delete any files? I want to reformat one of my computers.
 


quincy

Senior Member
Was the dismissal with or without prejudice? In other words, is the copyright holder still entitled to refile an infringment suit against you individually (perhaps in another jurisdiction)?
 

Justaskingq

Junior Member
Yes, I believe so. He hasn't sued any individual from what I've been able to find out. It looks like he just gathers names and tries to get people to settle. You can tell from his sloppy paperwork and from what the people say on the internet about theres. He names two different files and my IP wasn't even in the initial docs. I know my two computers don't have anything on them but my one computer has been acting up for a very long time and I would like to try to fix it. Should I just buy another computer and wait before I try anything with it? Or just try to work with what I have? It did say not to delete anything. I haven't but I can still install on it. How long should I wait too? Supposedly it was downloaded on December 1, 2010.
 

LillianX

Senior Member
Save the files to a disc or a flash drive so you don't have to worry about the issue at all. Heck... email them to yourself if you don't feel like keeping a disc around. Gmail keeps stuff for forever and has, for all regular intents and purposes, essentially unlimited storage.
 

Justaskingq

Junior Member
Can an email hold all the files on the c drive? I just want to make sure I don't get in trouble for deleting something especially since I don't have what they are talking about. Also, if someone did use my internet to download this, am I still liable? I'm not for sure but I do know I didn't do it and if they did, it was on there computer not mine. My computer was acting up long before the download was done. My computer won't stay on long enough to download a movie. That bad. I've replaced my power supply yet it still does it so it might be software issue.
 

Justaskingq

Junior Member
Also am I supposed to not install or delete games from my hard drive? It has nothing to do with porn. He also said in his letter that I am responsible if someone did download it through my internet service with or without my consent. That doesn't make a whole lot of sense. It sounds more like a scam.
 

quincy

Senior Member
Justaskingq, you should probably speak with an IP attorney in your area before doing anything with or to your computer, especially if you received a "preservation notice" requiring that you do nothing to remove, alter or destroy any content on your computer.

If served with a complaint (or even if you seriously anticipate being served with a complaint), you may also find it wise to retain a computer forensic expert to preserve evidence on your computer, perhaps by making a forensic image of your computer's hard drive. The attorney you consult can discuss with you the possible need for this.

If the plaintiff files an infringement action against you (and I understand that this might be a big "if"), the plaintiff will probably have a computer forensics expert of his own. Computer evidence is crucial in proving illegal downloading. An expert examination of your computer can not only show if copyrighted material was downloaded, but when it was downloaded and what user name was used for logging in at the date and time of download.

If a person tries to conceal infringement by deleting files or writing-over files, or by using a software program like BC Wipe, the computer expert can determine this as well. If a plaintiff's computer forensic expert can provide evidence that the computer has been altered in any way, this will be used against the alleged infringer.

As for your liability if someone else accessed your computer and illegally downloaded copyrighted material, you may wish to review the account agreement you made with your internet service provider. Many will have a clause saying that you as account holder are responsible for any misuse or abuse of the service.

Although there is a lot of talk of these mass-defendant infringement suits being "scams," most of them are legitimate suits being pursued against copyright infringers. It is the way in which these suits are being pursued on a mass-defendant scale that has caused some debate and controversy.

But, that said, it is still wise to have an attorney check out any infringement settlement notice received or any infringement complaint served, to make sure that the plaintiff in the case actually has standing to sue, that the copyrighted material was registered in a timely fashion (to allow for an award of statutory damages), and to make sure your response to any action is the best response based on the specific facts of your situation.

Good luck.
 
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OHRoadwarrior

Senior Member
quincy is correct so I should clarify my intent.

By switching the hard drive, should you do so, you will preserve the data on it. You can then setup the new hd as you wish. This may put you in violation, however will preserve the data.
 

Justaskingq

Junior Member
What do you mean by write over files? Installing other programs or games. I read somewhere else that he has three years till the infringement date to file charges. Is that true? They expect you to do nothing with computers till then?
 

Justaskingq

Junior Member
Also, I saw somewhere that a lady was named twice on two different doe lawsuits with the same IP. Why would they do that? A court would never do anything but discovery on a mass of IPs I would think. They would never find a guilty verdict on that, would they?
 

quincy

Senior Member
A lot of questions. :)

First, someone can be named in two different lawsuits if there are two different copyright holders or two different copyrighted works involved. If the woman illegally downloaded two different movies owned by two different companies but she downloaded them using the same computer at the same IP address, this same IP address and this same woman can be named as a defendant in two different lawsuits.

You will want a forensic image of your computer hard drive to preserve all evidence of the contents of your computer. Tampering in any way with your computer's content can result in a jury finding you guilty of copyright infringement based on evidence of altering and absense of evidence on your computer. Seems odd, perhaps, but this is how it works.

Claims of spoliation of evidence are often made in computer-based infringement cases, and adverse sanctions will be sought by the plaintiffs against any defendant shown to have "messed with" his computer after the defendant has been notified of an infringement action against him and the need to preserve computer contents.

Many infringers will attempt to delete all evidence of illegal downloading, not aware that forensic experts today can detect these attempts. Writing over files is one way in which infringers try to hide evidence of illegal activity on their computers.

When a file is deleted, it does not disappear forever from the computer. It still takes up space on the computer until this space is needed for other files. When this space is needed for another file, the file that is "written over" the deleted-file space may not use up the entire space devoted to the deleted file. There are often "fragments" of the original deleted file left behind. These fragments from the original file can be used to show an illegal download.

As for expectations by a plaintiff and the courts in a copyright infringement action, you can check out Federal Rules of Civil Procedure, Rule 26, General Provisions Governing Discovery; Duty of Disclosure, and FRCP Rule 34, Production of Documents, as it relates to electronically stored information, and FRCP, Rule 37, Failure to Make Disclosure or Cooperate in Discovery; Sanctions.

Mass discovery, by the way, is being used by copyright holders to determine the real identities of those who have illegally downloaded copyrighted material. These mass discoveries target the ISPs that hold customer account information and do not target the individuals who may have illegally downloaded the material. Once the identities of the "John Does" have been revealed through the subpoenas issued on the ISPs, individual infringement suits can be filed against the identified downloaders (generally after notices of settlement are distributed to the Does by the copyright holders, offering these identified Does the opportunity to avoid costly court actions by settling the matter for X amount of dollars).

There were resources posted not too long ago for posters who were served with notices of infringement. If you use the "search" feature at the top of the page and enter "West Coast Productions" into the "key word" box, several threads will appear. The one titled "Illegal Downloading" provides resources you may find helpful in your situation and browsing through all of the other numerous threads posted can help educate you on what you face or could face.

Again, I advise that you consult with an attorney in your area, Justaskingq, to see what steps are necessary for you to take at this point, and to see exactly what you can and can't do safely with your computer until the infringement matter is resolved.

Good luck.
 
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