Police blotter: Alleged eDonkey pirate gets trial

"Police blotter" is a weekly report on the intersection of technology and the law.

What: A Philadelphia man with a cable modem is sued by Paramount Pictures for alleged copyright infringement of a movie through the eDonkey file-sharing network.

When: U.S. District Judge Thomas O'Neill in the Eastern District of Pennsylvania ruled on Dec. 2.

Outcome: O'Neill denied each side's requests for summary judgment, clearing the way for an eventual civil trial.

Summary: Paramount detected a copy of its Jim Carrey movie "Lemony Snicket's A Series of Unfortunate Events" on the eDonkey network on Dec. 23, 2004. That was a week after it was released in theaters.

The detection, done by contractor BayTSP, allegedly yielded an Internet Protocol address of 69.141.202.170. Because that chunk of IP addresses is owned by Comcast, Paramount filed a "John Doe" lawsuit and then fired off a subpoena to the cable provider.

Comcast replied a few weeks later with the identity of John Davis, a self-employed computer consultant. Paramount is asking for a permanent injunction against Davis, $50,000 in statutory damages, and $38,438 in attorneys' fees. In addition, Paramount claims that Davis was the "first propagator"-- that is, the first person to distribute the movie through eDonkey.

Davis has not hired an attorney and is representing himself in court. He claims that he was misidentified and did not infringe Paramount's copyright in "Lemony Snicket's A Series of Unfortunate Events."

In response, Paramount tried to do a forensic analysis of Davis' Macintosh G4 cube. But the company found that Davis wiped his hard drive clean and reinstalled the operating system soon after being notified of the legal action against him.

The judge said Davis had a "duty to preserve the computer's memory" and will face sanctions. But he denied both sides' requests for summary judgment, saying there were too many important questions still unresolved.

Excerpt from Judge O'Neill's opinion (click here for PDF): "Paramount finds Davis' actions of wiping the hard drive clean of all data to be suspicious because it was 16 days after Davis received notice from Comcast of the John Doe lawsuit pending against him. The effect of Davis wiping the hard drive clean of all data was to make it impossible to determine whether the motion picture or eDonkey software was on the computer prior to March, 25, 2005. Paramount alleges that Davis' actions were intentional to prevent detection of his infringing activities.

"Davis denies this allegation and claims that he wiped his hard drive clean in preparation for selling it to Stephanie Seymour for $390 on March 30, 2005... Davis further claims that the operating system found on the computer in July 2005, Mac OS 9.2.2, is incompatible with the eDonkey network.

"Davis argues that he is not at fault because he reasonably wiped the computer's hard drive clean of all prior memory in preparation for selling it to Seymour, who had expressed interest in the computer as early as Feb. 23, 2005. This argument does not obviate his duty to preserve the computer's memory. Once he learned of the lawsuit pending against him and the subject matter of that lawsuit, he either knew or should have known that the computer's memory was a crucial piece of evidence in this action. His failure to preserve this evidence places the fault for its destruction squarely upon Davis."

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