Let this be a lesson to future defendants in copyright infringement actions: if you plan on using a DMCA safe harbor defense, don't destroy or conceal evidence related to your argument. Judges don't like that sort of thing.
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. The claims stemmed from newsgroups on Usenet.com's paid service where
users could post and download music files. The plaintiffs alleged that
Usenet.com was aware of the infringement, promoted it and profited from
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
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.
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
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.