DOJ Responds To Megaupload's Accusations Of Misleading The Court... By Misleading The Court
from the that's-how-that-works? dept
We've discussed a few times now how Megaupload is arguing that key elements in the warrant used to criminally charge the company and its principles were misleading to the court. In particular, Megaupload has pointed out that part of the "evidence" for criminal conspiracy was that Megaupload knew about infringing activity on the site, but chose not to do anything about it. However, as Megaupload made clear in its filing, the reason it knew about it was because it was informed that the content was subject to a federal investigation, and that the "evidence" needed to be preserved. As we detailed in our last post on the subject, the DOJ went straight to Megaupload's hosting partner, Carpathia, to let them know about this. Carpathia pleaded with the DOJ to talk directly to Megaupload (after receiving assurances that Megaupload was not the target), but the DOJ rejected that request.However, since this was evidence of potentially criminal activity, Carpathia told Megaupload about it, implying that the DOJ was making it clear that Megaupload should not delete the files.
Notably, the Government avoided communicating with Megaupload directly, instead deputizing Carpathia to do so on its behalf. (See June 25, 2010 email from Phil Hedlund to Mathias Ortmann and Kim Dotcom, Ex. 1 ("Please know that we attempted to convince the Government to work directly with Mega on this matter, but given the complex jurisdictional issues, they have been unwilling").) Far from warning Megaupload that the Government considered it to be part of a worldwide criminal organization, which the Government even at the time was terming the "Mega Conspiracy," the Government, through its anointed agent Carpathia, represented to Megaupload that "[w]e have no reason to believe the [sic] MegaUpload is the target of the investigation."The DOJ has now responded to these claims, and it's done so in its typically misleading fashion. For example, it insists that Megaupload is misleading in its own filing, because the DOJ never directly spoke to Megaupload. They leave out the whole part about the DOJ talking to Carpathia, who had to talk to Megaupload if it wanted to preserve the evidence in question without risk of it being deleted. But, no, in the DOJ's version, this is all just Megaupload fantasy talk.
Megaupload cooperated with the Government and voluntarily arranged with Carpathia to supply the Government with the files identified in the sealed warrant. In accordance with the Government's express admonitions--as conveyed to Megaupload through the sealing order and Carpathia's instructions--Megaupload avoided signaling that anything was afoot or otherwise compromising the investigation, preserving the files in their original condition without alerting users or the public that anything had changed. At no time did the Government or Carpathia indicate that Megaupload could or should remove the files identified in the warrant from its cloud storage platform without compromising the stated secrecy of the investigation, much less did they suggest that Megaupload was legally obliged to do so lest it be complicit in an ongoing criminal conspiracy.
Megaupload's pleading and the search warrant materials at issue disproves the allegation that the government misled the court as part of a conspiracy to entrap Megaupload. For instance, Megaupload alleges that the government "affirmatively [led]" Megaupload to retain certain files on its servers.... Yet Megaupload does not cite a single communication between the government and Megaupload or a single instruction from any member of the government to Megaupload; there are none.Notice the lack of any mention of the Carpathia communications between the DOJ and Carpathia, or between Carpathia and Megaupload. That seems like relevant info that the DOJ conveniently just skips right over.
Is this really the best argument that the DOJ can put forth? The filing also does highlight that the DOJ made other arguments against Megaupload in its filings -- which is true -- but it doesn't mean that the questionable aspects concerning some of the key claims should simply be ignored, as the DOJ would prefer.
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Filed Under: doj, entrapment, evidence
Companies: megaupload
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Wake up, Americans.
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not too many years ago, used to be a funny joke that this or that gummint action was going all 1984 on our ass...
then it became ironic, then it became alarming, *now* it is getting scary-true...
the 1984 propaganda ministry is in full force, can the jackboots be far behind, citizen ? ? ?
('member how we used to *joke* about 'show us your papers, citizen', 'member those innocent days ? ? ?)
art guerrilla
aka ann archy
eof
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Actually, the US government is not out of control at all, it is under the complete control of the scummy, self serving, greedy, Corporate America.
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The Attorney General is confirmed by the Senate, not the Supreme Court.
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This case is going to drag on for years, and it doesn't matter if the DoJ loses.
MegaUpload is still off the internet.
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Re:for 3 more days only
DoJ can do what they want, they are not going to stop Mega from being reborn out of its ashes
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It has happened before. Like so many others, the whole point of this operation is to dismantle Megaupload at all costs (even if they trample the law) and scaring the shit out of all other online service providers. In the meantime, the copyright cartel can enjoy the illusion that they don't have to innovate and provide a better value to stay relevant.
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Its a shame the cost is our credibility around the globe. Bullies don't care what others think of them.
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It would actually be a big plus for Megaupload if they could say no they were locked out of view from the public soon as they became evidence.
At least that way they could be like.
1. We preserved evidence.
2. We locked it out of any possible public access to prevent future infringements of the files in question.
3. They did not instruct us whether to delete the files or keep them. Either way if 2 is true it's going to be another blow to the already absurd case.
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mind = blown
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If you tell someone they are being investigated (as opposed to telling them they're assisting in the investigation of someone else), it may alert them to the fact they, themselves are being investigated, and cuse them to alter their behavior or actions.
(Unless, of course, they're innocent...)
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Then I as a station attendant walk over to 36A and put a padlock on it and a note that says "closed due to police investigation" I'm pretty sure the cops would be pretty upset about me letting the criminals know the cops are onto them.
Of course I also wouldn't expect the cops to arrest everyone who works at the train station and close it down because the staff knowingly allowed illicit substances to be distributed after the cops told us to ignore the people pulling drugs out of the locker.
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In accordance with the Government's express admonitions--as conveyed to Megaupload through the sealing order and Carpathia's instructions--Megaupload avoided signaling that anything was afoot or otherwise compromising the investigation, preserving the files in their original condition without alerting users or the public that anything had changed.
So no, they did absolutely nothing to those files, as explicitly instructed.
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One way or another
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They also claim they didn't mention the June 2010 warrant, but they did
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Sting?
I think the right phrase for this is "a sting operation" or "being set-up". The DOJ used Carpathia to trick Megaupload into preserving evidence against itself.
Does it really show anything more than Megaupload didn't think it was guilty?
Unless the DOJ's case is based on the (circular) reasoning that because of Carpathia informing MU that the data were the subject of a federal investigation, that it knew the data were illegal, and thus eliminates MU's DMCA safe-harbor, it seems like this who-told-who is just a side show.
Am I missing something?
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Re: Sting?
The MAFIAA were really upset over them - and so they demanded that something spectacular be done - the megaupload case was cobbled together in a hurry using spare bits from other existing investigations.
This is mostly cockup rather than conspiracy...
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Wasn't that a bad movie starring Barry Bostwick?
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A badly cocked up conspiracy...
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A badly cocked up conspiracy...
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Crap like this is just harassment, and is full of 'We know he knows. He knows we know. And we both know we don't have shit on him.' Which is bullshit, and not a standpoint for a legal warrant. I hope they fail for mucking up what they should have known better than to do, much less fail if they didn't know better.
The argument, 'They kept data that should have been deleted' is bullshit and null as well. The 'DATA' in question can be legal for one person, and not legal for another. If the groups that manage that legality of the data can NOT reliably distinguish when it is or isn't legal, than there is no reasonable expectation that MegaUpload should either. Simply, there is no mechanism in existence to correctly tell upon examination alone data's legality in terms of ownership and licensing.
Also, the impact of 'LIKELY' is not an expectable quantification of legality. If that was, the functional operations of businesses across the US would come to a halt. (i.e. Any bank is LIKELY to have laundered or illegally gained money in its ownership. Any storage facility is likely to have illegal items (stolen or otherwise) in its facility. etc.)
There are some actions that would be illegal with evidence (like paying someone to upload data they knew was illegal for that person to possess), but anything except EXPLICIT knowledge of an item being UNIVERSALLY illegal is just harassment, wrong, and illegal behavior of the government.
In physical items, this is like police handing you a paper bag. You don't know this, you know that it's heavy and in a bag. It could be illegal for you to handle this item, it could not be. Upon examination, you would not be able to tell, the information that determines this is not attached to the item, does not transform the item, is not revealed upon inspection in any way. Inspection reveals it's a gun. It is not a universally illegal gun, it's a nondiscript gun. The police decide to charge you for having illegal items, because the owner of the gun, is not legally allowed to own the gun. In fact, it wasn't legal for the police to have the gun either, because if they did, then it's just a hypothetical owner, in which case it's not illegal. They'll just put you in prison until they sort this out....Bullshit isn't it?
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I can't tell from the article above, but is Megaupload planning to use lack of knowledge as their defense? That sounds a lot like willful blindness, which is something judges get very angry about.
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The DOiJ's argument, and in fact the information they presented to get the warrant they used to seize MU's servers, was that they knew about the infringing files, but refused to take them down, making them 'willful infringers', all the while ever so conveniently leaving out the whole reason MU didn't take the files down was because they were told not to.
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How do you get "lack of knowledge" from the text you quoted saying that claimed "it knew because it was informed"?
Anyway, the article states that MU used the fact that they were informed (and told not to do anything) as their defence on this point. The DOJ appear to be coming back claiming that they didn't tell MU directly, but are omitting the fact that they told Carpathia, who in turn had to notify MU for the requested action (or lack thereof) to be undertaken).
So, MU are not claiming that they were not informed. The DOJ appears to be claiming that they weren't as they weren't *directly* notified by the DOJ, but just happen to be omitting the part where they knew they were being informed via Carpathia.
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I'm confused...
The DOiJ either:
A) Believes the judge is so on their side he'll be willing to ignore any pesky 'evidence' that MU might submit, and will therefor ignore MU's filing in favor of this one.
B) Believes the judge is so incompetent that he'll believe anything people tell him.
Or C) Believes the judge has an insanely lousy memory, and will have already forgotten that MU specifically said that the DOiJ didn't contract them directly, instead going through Carpathia, making their 'argument' here moot.
On a side note, given all the smoke and mirrors the DOiJ is employing throughout this whole case, all the shenanigans they've pulled so far, does anyone still think they actually had a solid case against MU to begin with? Because the more I read about the case, the more it looks like someone told the DOiJ 'Jump!', and they were so eager to do so they were already in the air before bothering to check to see if they actually had a solid place to land.
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Re: I'm confused...
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Organize the Data
The US DOJ is on a roll this week for sure.
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I can't tell from the article above, but is Megaupload planning to use lack of knowledge as their defense? That sounds a lot like willful blindness, which is something judges get very angry about.
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Cue Benny Hill slapstick music.
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Thanks TD for brightening my day.
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Kim's defense team (which apparently includes more lawyers than the total IQ points of the prosecution) has worked out that Kim may be able to sue for around 2.6 Billion (B, not M) US dollars for damages after the Megaupload case is dropped. The Dept. of inJustice rather rudely and recklessly grabbed a tiger by the tail here, only to find out that the weapons and cages Biden, Dodd, and the MPAA promised to deliver were nowhere to be found. Now they will do anything to hold onto the tail for fear of facing the other end the instant they let go.
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