That point was emphatically made yesterday by Judge Harold Baer of the Southern District of New York. The judge was ruling in the case of Arista Records v. Usenet.com. Arista accused Usenet of basically every form of copyright infringement there is: direct, contributory, vicarious, you name it.
Usenet tried to claim that it was entitled to safe harbor under section 512(c) of the Digital Millennium Copyright Act, which removes liability from an online service provider for infringing content posted by third parties so long as the provider meets certain requirements.
The judge wasn't so keen on allowing Usenet.com to lay out this defense, however. It seems that, during the course of the litigation, Usenet.com destroyed data on seven hard drives, fired employees and let them take their computers home with them, and sent some employees to Europe and encouraged them to remain outside the jurisdiction while the suit was pending.
Or, as Nate Anderson at Ars Technica puts it so eloquently, Usenet.com dropped mines in its own safe harbor.
As a result of these discovery abuses, the judge refused to allow Usenet.com's DMCA safe harbor defense since the spoliation and concealment of evidence was directly related to Usenet.com's argument. It could have been worse, though: The plaintiffs wanted a straight default judgment, but Judge Baer thought the nuclear option was a little bit extreme, even for Usenet.com's egregious discovery violations.
It's unlikely that the DMCA argument would have helped all that much anyway. From what evidence there was in the case, it was pretty obvious that Usenet.com was actively encouraging infringement across its network. The site included the term "warez" in its meta tags and gloated that the shutdown of peer-to-peer services offered a way for Usenet "to get back in the game." Its customer service reps also helped people with technical problems while they were trying to download infringing material.
They also charged for the service, which removes them from pretty much every single one of the requirements for the section 512 safe harbor.
Game, set, match to the RIAA.
RIAA Wins Copyright Lawsuit Against Usenet (WSJ Digits Blog)