• by Wendy Davis  @wendyndavis, September 3, 2008

In the final twist of a closely watched case, a federal judge has found Arizona resident Jeffrey Howell liable for copyright infringement and ordered him to pay more than $40,000 in damages to the record industry.

Judge Neil Wake ruled that Howell deliberately destroyed evidence in the case by scrubbing his hard drive shortly after he was sued for allegedly sharing tracks on Kazaa.

"Howell's brazen destruction of evidence has wholly undermined the integrity of these judicial proceedings," Judge Neil Wake wrote. "Howell's actions have made it impossible to decide this case on the merits."

Wake then ended the case in the record industry's favor and ordered Howell, who represented himself, to pay damages of $40,850 ($750 per track plus the $350 paid by the record industry to file the lawsuit).

The ruling could bode poorly for some of the 20,000-plus other alleged file-sharers targeted by the record industry in recent years. Defense lawyers say that many of those people--especially those who have not hired lawyers--don't know the best way to respond to the record industry's demands while preserving their legal rights, and might have also destroyed evidence.

"Most people don't have the instinct to do what a lawyer would tell you to do--take that hard drive out of your computer, set it aside and don't touch it," said Fred von Lohmann at the Electronic Frontier Foundation. "That's not an intuition that most people have upon being sued."

Ray Beckerman, a New York-based lawyer who represents defendants in piracy lawsuits, added that some people accused of piracy think that the only way to stop such infringement is to remove whatever file-sharing program had been installed. "If they do that, then they're accused of spoliation of evidence," he said.

With the recent decision against Howell, Wake effectively mooted his earlier landmark ruling, which held that making tracks available for download does not violate copyright unless someone actually downloads those tracks.

That ruling itself marked a reversal of an order entered last year, when Wake found that Howell had violated copyright by making tracks available on Kazaa.

The question of whether making tracks available on peer-to-peer networks violates copyright is at the heart of another high-profile case--the record industry's lawsuit against Jammie Thomas. She was found liable and ordered to pay $220,000 last year, but the judge recently indicated that he will order a new trial. The judge, Michael Davis, said he now believes he incorrectly instructed the jury that it could rule against Thomas if it found she made tracks available online.