RIAA defendant sanctioned for destroying evidence

Defendant Jeffrey Howell was scolded by an Arizona court earlier this week in a move that could potentially give the recording industry a decisive victory.

Originally, the Howell case was the flash point for discussions surrounding whether simply making available songs for download through a shared folder constitutes piracy, or if actual downloading by a third-party needs to occur. For now, however, it's about destruction of evidence, as a case that had been been going the defendants' way -- in one turn of events already -- turned south once again.

Jeffrey Howell and his family were initially found guilty of piracy in August 2007, in a case brought forth by the Recording Industry Association of America. At the time, a summary judgment was entered which found Jeffrey Howell guilty of using the Kazaa P2P program to download pirated music.

Howell's fortunes changed in April, when Judge Neil Wake reversed his earlier ruling, to say plaintiffs needed more proof of malfeasance. Simply making 42 MP3 files available through Kazaa's shared folder wasn't enough -- the judge said proof had to be given that people actually downloaded from that folder.

Wake had ordered Howell to take all necessary steps to preserve evidence. However, RIAA attorneys responded that someone had attempted to wipe Howell's hard drive clean of any evidence Kazaa was ever installed.

According to a late July filing, the entertainment industry said forensic tests indicated Howell had ignored Wake's orders. He had allegedly even gone as far as to use file-wiping programs to attempt to cover evidence that pirated files had ever been installed on his computer.

"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," the minutes of Monday's proceedings read. "The extent of sanctions is within the Court's discretion."

A written order is expected to be released, and the court said it would also entertain the motions to dismiss that are currently on the table.

It now appears as if Howell's chances of winning the case have once again dwindled, from slim to none. The last time a suspected pirate was sanctioned for destruction of evidence -- in the MPAA's case against TorrentSpy -- a summary judgment was granted for the plaintiffs.

Another unintended effect is that the Howell case may have been one of the RIAA opponents' best chances of getting the "making available" defense to be a viable one for those sued by the entertainment industry.

Most recently, this defense had been used by Joan Cassin's lawyers, in a case for which the RIAA later asked for a dismissal. The defense is also being employed by Jammie Thomas' lawyers in their efforts to seek a retrial for their client.

The move by District Judge Wake has not already won the case for RIAA, contrary to reports.