Megaupload Say US Gov't Is Trying To Steal Assets Based On Crimes That Are 'Figments Of The Gov't's Boundless Imagination'
from the civil-fofeiture dept
We've obviously been covering the Megaupload case for many years, noting how surprisingly weak the case against Megaupload and its execs was. The case has been based mostly on a non-existent belief in some form of secondary criminal liability for copyright law that doesn't exist (there is secondary liability in civil copyright law, but not in criminal copyright law -- and while there is "aiding and abetting" in criminal law it's very different and almost certainly doesn't apply here). While part of ACTA tried to create a secondary liability for criminal copyright law, ACTA has not gone into force, since most countries rejected it.Separately, we've also been talking quite a bit about the government's widespread abuse of civil asset forfeiture, which is basically legalized theft by the US government, often done separately from any charges against people or businesses for crimes. These cases end up with funny names -- the US government vs. some sort of "thing" like the infamous United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls, which, yes, is real. Without getting too much into the legal weeds, there are really two separate processes: seizure and forfeiture. Seizure is basically when law enforcement grabs the stuff and hangs onto it for a while. Technically, after seizure, the government is supposed to either give the stuff back... or then file for forfeiture, which is when those crazily named lawsuits come into play.
In the Megaupload case, the government seized a bunch of stuff (all of which is still in New Zealand and Hong Kong), but over in the US, the government has made a move for civil asset forfeiture, leading to a separate civil asset forfeiture case named United States of America v. All Assets Listed In Attachment A, And All Interest, Benefits, And Assets Traceable Thereto. Catchy, right? But the reality is that it's the US government trying to claim "hey, we get to keep everything we took from Kim Dotcom and Megaupload, even though we haven't actually gone through and tried him or the company yet and there's no conclusive determination of guilt, we're saying that his property is guilty and we get to keep it and buy some toys with it."
Dotcom and Megaupload are now asking for that civil forfeiture process to be dismissed, or at the very least put on hold until after the criminal cases is resolved, for obvious reasons. The full filing (pdf) is worth reading -- and once you understand what we wrote above, it should mostly make sense. Basically, Dotcom and Megaupload are pointing out that the whole criminal case is based on a very questionable interpretation of the law, and then that the attempt at forfeiture is just an even more questionable attempt to not just pile on, but to get to keep everything the US government took from Dotcom/Megaupload based on those questionable theories.
Nearly three years ago, the United States Government effectively wiped out Megaupload Limited, a cloud storage provider, along with related businesses, based on novel theories of criminal copyright infringement that were offered by the Government ex parte and have yet to be subjected to adversarial testing. Thus, the Government has already seized the criminal defendants’ websites, destroyed their business, and frozen their assets around the world—all without benefit of an evidentiary hearing or any semblance of due process. Without even attempting to serve the corporate defendants per the Federal Rules of Criminal Procedure, the Government has exercised all its might in a concerted, calculated effort to foreclose any opportunity for the defendants to challenge the allegations against them and also to deprive them of the funds and other tools (including exculpatory evidence residing on servers, counsel of choice, and ability to appear) that would equip a robust defense in the criminal proceedings.Beyond the issues related to the basic secondary liability for criminal copyright infringement, the filing further points out that the government doesn't even show that any of the "criminal" infringement took place within the US -- and the Copyright Act only applies in the US.
But all that, for the Government, was not enough. Now it seeks to pile on against ostensibly defenseless targets with a parallel civil action, seeking civil forfeiture, based on the same alleged copyright crimes that, when scrutinized, turn out to be figments of the Government’s boundless imagination. In fact, the crimes for which the Government seeks to punish the Megaupload defendants (now within the civil as well as the criminal realm) do not exist. Although there is no such crime as secondary criminal copyright infringement, that is the crime on which the Government’s Superseding Indictment and instant Complaint are predicated. That is the nonexistent crime for which Megaupload was destroyed and all of its innocent users were denied their rightful property. And that is the nonexistent crime for which the Government would now strip the criminal defendants, and their families, of all their assets.
Nearly three years ago, the United States Government effectively wiped out Megaupload Limited, a cloud storage provider, along with related businesses, based on novel theories of criminal copyright infringement that were offered by the Government ex parte and have yet to be subjected to adversarial testing. Thus, the Government has already seized the criminal defendants’ websites, destroyed their business, and frozen their assets around the world—all without benefit of an evidentiary hearing or any semblance of due process. Without even attempting to serve the corporate defendants per the Federal Rules of Criminal Procedure, the Government has exercised all its might in a concerted, calculated effort to foreclose any opportunity for the defendants to challenge the allegations against them and also to deprive them of the funds and other tools (including exculpatory evidence residing on servers, counsel of choice, and ability to appear) that would equip a robust defense in the criminal proceedings. But all that, for the Government, was not enough. Now it seeks to pile on against ostensibly defenseless targets with a parallel civil action, seeking civil forfeiture, based on the same alleged copyright crimes that, when scrutinized, turn out to be figments of the Government’s boundless imagination. In fact, the crimes for which the Government seeks to punish the Megaupload defendants (now within the civil as well as the criminal realm) do not exist. Although there is no such crime as secondary criminal copyright infringement, that is the crime on which the Government’s Superseding Indictment and instant Complaint are predicated. That is the nonexistent crime for which Megaupload was destroyed and all of its innocent users were denied their rightful property. And that is the nonexistent crime for which the Government would now strip the criminal defendants, and their families, of all their assets. Because the Government’s Complaint improperly grasps for assets derived from extraterritorial conduct, it falls outside the subject-matter jurisdiction of this Court.Then it gets deep into that attempt by the "boundless imagination" of the US government to create secondary criminal liability where it does not exist.
“For the Copyright Act to apply, ‘at least one alleged infringement must be completed entirely within the United States.’” Elmo Shropshire v. Canning, 2011 WL 90136, at *3 (N.D. Cal. Jan. 11, 2011) (quoting Los Angeles News Serv. v. Reuters Television Int’l, Ltd., 149 F.3d 987, 990-91 (9th Cir. 1998)); see also Columbia Pictures Indus., Inc. v. Fung, 2009 WL 6355911, at *8 (C.D. Cal. Dec. 21, 2009) aff'd in part as modified, 710 F.3d 1020 (9th Cir. 2013) (plaintiffs must show “that United States users either uploaded or downloaded copyrighted works”). Tellingly, the Complaint and the Superseding Indictment together fail to identify a single instance in which an act of infringement—particularly an unauthorized upload or download—occurred entirely within the United States.
Instead, the Complaint plainly accuses foreign activities that fall outside the scope of the Copyright Act. The Government describes Megaupload as “an international criminal enterprise,”..., and “a worldwide criminal organization,”.... Other allegations reference foreign citizenships, foreign company registrations, foreign employees, foreign bank accounts, foreign assets, and computer servers located “around the world.” .... Indeed, the reality is that Megaupload’s activities—its users, its operations, its uploadings, and its downloadings—spanned the world at all relevant times. Yet the Complaint is seeking forfeiture without specifying the location of any infringement or confining itself to U.S. borders.
The Supreme Court has recognized that, in the civil context, secondary copyright infringement liability may obtain based on uncodified “common law” doctrines. See MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 930, 937 (2005). Federal crimes, in contrast, are “solely creatures of statute.” Liparota v. United States, 471 U.S. 419, 424 (1985)....In a footnote, it also points out that Megaupload likely isn't even subject to civil secondary infringement claims, let alone criminal ones:
In fact, there is no such crime. Strikingly, the criminal copyright infringement statute, 17 U.S.C. § 506(a), says nothing whatsoever about secondary liability. See, e.g., Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 434 (1984) (“The Copyright Act does not expressly render anyone liable for infringement committed by another.”). The statute does not state that criminal liability can be predicated upon theories of secondary liability, nor does it contemplate that the reach of criminal liability is to be coextensive with civil liability. Because the Government’s proposed theory of secondary criminal copyright infringement is not codified, it is unknown to federal law—and it is no basis for this Court to assert jurisdiction.
Indeed, a theory of secondary criminal copyright infringement or any species thereof, including aiding and abetting through cloud storage case, would be unconstitutional under the void-for-vagueness doctrine. “A penal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Connally v. General Construction Co., 269 U.S. 385, 391 (1926). If the Government’s theory takes hold, then ordinary people and legal scholars alike will be left guessing where civil secondary copyright infringement ends and criminality begins, particularly in an era when automated file transactions and “foot faults” faced by high-volume providers of online services are routine.
The Complaint’s allegations would not even satisfy the civil standards for secondary infringement, for cloud-storage technology is shielded from civil liability by the Sony doctrine, which forbids imputing liability in the context of dual-use technologies. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). Likewise, online service providers deserve protection against civil liability that is based on theories of constructive notice. See Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp. 1361 (N.D. Cal. 1995).Furthermore, the ruling points out that the DMCA did not codify secondary liability, but, rather, did the opposite: it sought to establish standards to protect service providers from secondary liability for copyright infringement.
Thus, Congress not only declined to codify secondary liability, but further expressed its intention to protect service providers against even “monetary relief” in the civil context: it follows a fortiori that Congress did not want secondary copyright infringement to serve as a trigger for criminal punishment. The Government’s secondary criminal theory finds no traction “without rewriting the statute: an act the Congress, but not this court, can undertake.”As for the attempt to mix and match to pretend that this is "aiding and abetting" and that aiding and abetting is the equivalent of secondary liability for criminal copyright infringement, no dice:
But that is no conceivable basis for criminal prosecution, much less resulting forfeiture. Congress specifically removed from the Copyright Act language about aiding and abetting criminal infringement. See Irina D. Manta, The Puzzle of Criminal Sanctions for Intellectual Property Infringement, 24 Harv. J.L. & Tech. 469, 481 (2011) (“Several years later, countering what had been a trend of expansion in the area of criminal sanctions, the Copyright Act of 1976 eliminated the provisions for aiding and abetting . . .”) Judicial reinsertion of the deleted language, particularly in the criminal context, would chill innovation, creating the prospect of criminal sanctions despite, for instance, compliance with express DMCA safe harbors. Even assuming arguendo that such a criminal prosecution might ever be permitted, neither 18 U.S.C. § 2323 nor 18 U.S.C. § 981 authorizes civil asset forfeiture for proceeds traceable to aiding and abetting criminal conduct. There is, accordingly, no jurisdiction for entertaining a request for civil forfeiture as pleaded here.The filing also points out that since the property is still in Hong Kong and New Zealand, the US can't use civil forfeiture procedures against it anyway as that's outside the jurisdiction for such "in rem" procedures.
The Fourth Circuit holds that a district court does not have in rem jurisdiction unless it has “exclusive custody or control” over the property at issue. R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 964 (4th Cir. 1999) (“Only if the court has exclusive custody and control over the property does it have jurisdiction over the property”). Exclusive custody and control obviously do not exist over the foreign assets at issue here. Nor does this Court have constructive possession over the property. The “fiction” of constructive possession requires that the Court possess some part of Claimants’ assets. R.M.S. Titanic I, 171 F.3d at 964. Yet no portion of the assets sought by the Government resides in this district.On top of everything else, the government doesn't even properly make a single claim of copyright infringement, with all of the necessary attributes of such a claim:
Missing from the Government’s pleadings are specifics about, e.g., (i) what works are at issue; (ii) whether those works are registered in the United States; (iii) whether those works were uploaded or downloaded and stored in the United States; (iv) which end users performed the infringing acts; (v) whether the end users acted with the intent to violate United States copyright law and (vi) when the alleged acts of infringement occurred (and whether they fell within the Copyright Act’s five-year statute of limitations). 17 U.S.C. § 507(a). The Complaint does not contain a single instance of infringement as to which all of the requisite facts have been pleaded.And of course, for it to be criminal, it would have to be willful, and yet (once again) the US government fails to do anything to show how any of the infringement was willful. Specifically, as we've noted in other similar cases, the government would have to show that the users of Megaupload were both infringing willfully and for profit, and that the execs of Megaupload were actively aiding and abetting -- knowing that the end users were doing so willfully. Here the government is doing the same thing that's been done in other cases (without success) arguing that the users are infringing and the site is profiting, and thus it's both willful and for profit, but that's combining different people and different actions in a manner that the law does not accept.
The closest the Complaint comes to these specifics is mentioning that Dotcom distributed a link to an unnamed “musical recording” by “50 Cent.” ... The Complaint does not allege the name of the recording; its copyright registration number; the authorization status of link; whether Dotcom properly purchased the recording; who uploaded the file to create the link; who (if anyone) downloaded the file from the link; where any uploads or downloads occurred; or where Dotcom was geographically when he distributed the link. The Complaint does provide a date of distribution (December 3, 2006) but that date falls more than five years before the first Criminal Indictment, well outside the five-year statute of limitations set by 17 U.S.C. § 507(a).
On top of all of that the filing questions why the government is seeking to seize everything. Not only has it not shown a reason to seize any of the assets, it appears to be arguing that all of the proceeds from Megaupload were illegal and thus can be taken by the US government.
While this is a separate action from the other Megaupload situations we've covered -- regarding the criminal case in the US and the extradition attempt in New Zealand -- it certainly does a pretty good job laying out the significant weaknesses in the overall case.
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Filed Under: aiding and abetting, asset forfeiture, civil asset forfeiture, copyright, criminal copyright, kim dotcom, secondary liability, seizure
Companies: megaupload
Reader Comments
The First Word
“It's an end-around tactic
The DoJ has stepped in it, and they know it. If they actually thought they had a solid case, they could have and should have spent years preparing it: after all, no persons were in any kind of danger, so what's the rush? They could have and should have had evidence stacked to the rafters, in a pile so massive and overwhelming that even if 90% was thrown out on various grounds, they'd still have enough to make their case.But they didn't do that. They leapt into this, grandstanding and showboating, taking advantage of Dotcom's celebrity and trying to score PR points instead of actually -- and I know this is a novel concept for the DoJ -- trying to achieve something vaguely like "justice". (Maybe they read the sign over the door more often.)
And now they're floundering. They've realized that they don't have a case and that if this goes to trial, they're going to get their asses kicked...which will not sit well with their overlords in the MAFIAA.
So they have no intention of going to trial. They don't need to, they don't want to, and they're going to make it as difficult as possible for Dotcom to force the issue by stripping as many assets as they can. (Watch: their next move will be to go after his current assets.) And then they do...NOTHING. They won't need to, and they won't want to, because they can string this out for the next 10, 20, 30 years and wait for the principals to die off...neatly tying off all the loose ends.
This has devolved into a face-saving exercise combined with punitive retribution against Dotcom for not being an obedient victim and meekly agreeing to whatever bullshit charges were thrown at him. They tried to nail his hide to the wall, to make an example out of him, and it didn't work. Now it's just cleanup.
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USA Feral gov at work
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Do you want the bad guys to win?
You are just trying to push courts into heeding the law rather than jailing the bad guys.
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This material was seized in a "criminal" case, that has yet to be heard so awarding possession before the outcome seems to be wrong.
They destroyed the company at the behest of corporations, they can not make a case under the law, and now seek yet another way to punish him for alleged crimes and laws stretched well beyond the breaking point.
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RE: Megaupload
Shame on you for believing that a Hollywood script is reality. You should know better.
In re: asset forfeiture - Your continuing doubling-down just makes you look like a bunch of incompetent assholes.
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Just a couple of examples for ya:
(1) Dotcom argues that there is no such thing as aiding and abetting criminal copyright infringement because that language was taken out of the Copyright Act: "But that is no conceivable basis for criminal prosecution, much less resulting forfeiture. Congress specifically removed from the Copyright Act language about aiding and abetting criminal infringement." The obvious response to this is that 18 U.S.C. 2 criminalizes aiding and abetting criminal copyright infringement--and that's the statute that Dotcom is charged under. While aiding and abetting under Section 104 was changed, that doesn't change Section 2. Congress didn't remove the language from Section 104 to suddenly make it legal to aid and abet a criminal infringer. Give me a break.
(2) Dotcom argues that the court doesn't have personal jurisdiction over the property: "Exclusive custody and control obviously do not exist over the foreign assets at issue here. Nor does this Court have constructive possession over the property." This is dumb. The court took control over the property when its warrants were executed and the property seized. It's precisely because the court has control over the property that Dotcom doesn't have that control. The court took it from him. See, for example, United States v. All Funds on Deposit in Four Swiss Bank, 2011 WL 7102568 (E.D. Va. Oct. 26, 2011) ("There is in rem jurisdiction pursuant to 28 U.S.C. § 1355(b)(2), as . . . there is constructive control over the foreign assets at issue pursuant to the service of the warrant of arrest discussed supra.")
Dotcom makes some good points, but he makes some bad ones too. Why are you so skeptical of the government's position, but not at all skeptical of Dotcom's position? This is a double standard--and further evidence that you're pro-piracy, by the way.
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New Mafiaa
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Please show the class where ANYONE has been convicted of criminal infringement in the MegaUpload case.
See cause to charge him with helping a criminal, in a system where innocent until proven guilty, requires there to be an adversarial legal process where guilt or innocence is proven before we can just slap a label on someone and pretend that is enough to run with.
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Auto-report.
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Wow, I never knew...
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Look at where the former DOJ person who started this clusterf works now.
The DOJ is now in a wild rush to save face and find anything to leverage a win against someone they can't threaten into taking a deal like they normally do.
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/s
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See cause to charge him with helping a criminal, in a system where innocent until proven guilty, requires there to be an adversarial legal process where guilt or innocence is proven before we can just slap a label on someone and pretend that is enough to run with.
As you well know, Dotcom is fighting like hell to avoid his day in court in the United States. But that's not the point. Dotcom is arguing that there's no such thing as aiding and abetting criminal copyright infringement. That's not true. The statute is 18 U.S.C. 2 (combined with 17 U.S.C. 506). That's the statute he's charged under for the aiding and abetting charge. This particular action is a civil forfeiture in rem. There's no need for the underlying crime to be proved first (that's criminal forfeiture). With a civil forfeiture, the standard is that the underlying crime has to be proved by a preponderance of the evidence. The government has to meet that burden before the property can be forfeited. The constitutionality of this type of in rem action has been tested and held not to violate due process by the Supreme Court.
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Has this legal argument been tested in other cases, or is it just as novel as all the rest of the DOJ's bullshit?
We're all skeptical of the government case because they have submitted zero solid evidence of their allegations, have repeatedly tried to have possible exculpatory evidence destroyed, and frankly are among friends in bumbling legal arguments as Prenda, Roca Labs, or your average pro se litigant submitting briefs about CIA mind control chips and the antichrist in crayons.
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Wow, I never knew...
No. Taking everything Dotcom argues at face value, while being skeptical of everything the government argues, shows a pro-piracy bias. That said, please explain how any of this violates due process.
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I laughed at this. All he has to do is come to the US if he wants his day in court. But in truth- for the reasons above- he'll never show go his own free will.
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Does it matter either way? No!
Why do people come here and try to out this website as having some sort of secret infringement agenda, as if unveiling it's nefarious plans would make any sort of difference? Is it a way to simply discredit everything TechDirt says because it's officially biased?
And why, after making valid points, do you insist on finishing up with unrelated slander and name calling, as if making a valid point wasn't victory enough.
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Re: New Mafiaa
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Wrong.
Taking everything Dotcom argues at face value, while being skeptical of everything the government argues, shows a *pro due process" bias.
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And you don't think that's so seriously fucked up as to call in question the motivations of the government?
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The aiding and abetting thing was dropped from Section 104 because it was redundant--Section 2 of Title 18 already criminalizes aiding and abetting. See, for example, Benton Martin, Jeremiah Newhall, Criminal Copyright Enforcement Against Filesharing Services, 15 N.C. J. L. & Tech. 101, 108 (2013) ("Although the 1976 Act dropped all mention of 'aiding and abetting' from the copyright statute, it appears that this change was intended merely to remove surplusage because this conduct remained a crime under 18 U.S.C. § 2."). It's not some crazy theory that the government cooked up just for Dotcom. "Persons who knowingly and willfully aid or abet copyright infringement are subject to the same criminal penalties as apply to the principal." 5-15 Nimmer on Copyright § 15.01.
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That's a huge logical leap right there. Take the case of me, for instance. When the DotCom case first came up, I thought the he was very likely guilty. However, as more and more details of the case and the behavior of the US government came to light, it increasingly appeared that he was simply being railroaded, and he looked less and less guilty to me.
This has literally nothing to do with being pro or anti-piracy (I'm personally anti-piracy, anyway, so if there's a personal bias involved, it would lean that direction). It has to do with being pro-justice.
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Yeah, the government's trying so hard to prevent Dotcom from having his day in court. LOL!
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Dotcom could get on a plane to the United States and prove his innocence. But he's not doing that. I'm surprised the U.S. waited so long to go after the assets.
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Ha! They should make a movie together. I'd pirate that.
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believing in due process is just like believing in our rights
>>Wow, I never knew...
Now you know. Believing in due process is just like believing in the 4th Amendment. And, if you do not believe in either, then you are definitely a pro-piracy terrorist!
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Your dictatorial authoritarianism is showing.
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Good point. The burden is on the government to prove his guilt. You're right.
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Mike's bias is pretty extreme, so it calls into question everything he posts on copyright. There's no balance to it. It's lopsided.
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Civil forfeiture proceedings, whilst they may have legitimate uses, are being used for largely illegitimate ends; i.e. they're primarily used for theft from the populace, under the guise of 'suspected of X', where X can be drug purchasing, firearm purchasing and possession of illegal drugs.
The fact that this legalised theft system is being used to steal what is still a legitimate business operation (having not, y'know, been proven guilty in a court of law) is nothing short of a fascist intent, given that there is a huge hate-on for MU Ltd.
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You mispelled North Korea.
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It's an end-around tactic
But they didn't do that. They leapt into this, grandstanding and showboating, taking advantage of Dotcom's celebrity and trying to score PR points instead of actually -- and I know this is a novel concept for the DoJ -- trying to achieve something vaguely like "justice". (Maybe they read the sign over the door more often.)
And now they're floundering. They've realized that they don't have a case and that if this goes to trial, they're going to get their asses kicked...which will not sit well with their overlords in the MAFIAA.
So they have no intention of going to trial. They don't need to, they don't want to, and they're going to make it as difficult as possible for Dotcom to force the issue by stripping as many assets as they can. (Watch: their next move will be to go after his current assets.) And then they do...NOTHING. They won't need to, and they won't want to, because they can string this out for the next 10, 20, 30 years and wait for the principals to die off...neatly tying off all the loose ends.
This has devolved into a face-saving exercise combined with punitive retribution against Dotcom for not being an obedient victim and meekly agreeing to whatever bullshit charges were thrown at him. They tried to nail his hide to the wall, to make an example out of him, and it didn't work. Now it's just cleanup.
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There is no reflection on the fact that the current laws in the US are....interesting, shall we say, when it comes to actual issues.
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2013?
It's not some crazy theory that the government cooked up just for Dotcom.
The MegaUpload shutdown happened in January 2012.
So at the very least, the government cooked this up for Dotcom and then used it on someone else no one has heard of later.
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But, of course, you're making the same mistake the DOJ is making in its arguments. If Dotcom is engaged in aiding and abetting criminal copyright infringement, who's doing the criminal copyright infringement? It would have to be the people who are actually infringing, but none of them are charged with *criminal* copyright infringement because they can't be. They don't come even remotely close to the standards of *criminal* copyright infringement.
The government's case hinges on mixing and matching. The users commit infringement. Dotcom aids and abets for profit. But with that you don't have enough to actually plead criminal copyright infringement. You're taking pieces from the end users and pieces from Dotcom and pretending you can glue them together in a hodge podge, and no one takes the time to sort out who's actually responsible for what actions.
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You've created a false dilemma. Arguing against that bias isn't a "pro-piracy" bias because those aren't the only two options. You can be pro-due process without being pro-"piracy" or even pro-Dotcom.
Even if piracy were actually an appropriate term here, there can't be a pro-"piracy" bias because no copyright infringement has been proven. The US system of justice is supposed to have a pro-accused-but-not-convicted bias to presume innocence.
That's how it's a violation of due process. The Government is presuming guilt and proceeding on that basis. Any actions taken with that starting point are de facto violations of due process.
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You vindictive little prick.
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Re: believing in due process is just like believing in our rights
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We're SUPPOSED to be skeptical of anything the government says in a criminal case. That's why there's a thing called due process. The government is a very powerful entity, far more powerful than your average citizen. However, to try and limit this power, (such as when the government wants to charge someone with a crime and lock them up), the government has to go through a trial and present evidence in favour of its argument.
Like with the default position of atheists, the null hypothesis. Atheists lack a belief in a god and must be convinced via argument and/or evidence. Same principle applies here: Dotcom is considered innocent until proven guilty. I lack a belief that Dotcom is guilty, precisely because so far, there has been little to no evidence that he is.
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Aren't you the one who is always calling Mike out for not making a firm opinion on any of the copyright stories he writes?
Now you are saying he has an extreme bias.
The problem you have is that this is his blog, so even if he was pro-piracy (if there really can be such a thing) and had an extreme bias towards it (which he doesn't) it would not matter.
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A crazy person will think that sane people are crazy since they don't think like he does. It doesn't actually make them crazy.
If you've at all examined US laws and their enforcement to the extent you purport to and haven't become significantly disturbed by the amount of injustice that is perpetuated on behalf of a corrupt government/justice system and large corporations, you're either blinded by bias, sociopathic, or your income depends on your intentional ignorance of the injustice and corruption.
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You're conflating two separate issues. I'm talking about whether aiding and abetting criminal infringement is a crime. Dotcom argues it's not; I'm saying it is. Whether Dotcom is guilty of aiding and abetting is a separate issue. I mentioned that Dotcom makes good and bad arguments, and this is one of the good ones. What works were infringed? Who are the direct infringers. We haven't seen all of the government's evidence yet, and maybe they're going to use the server records to show that Movie X was download Y times in the U.S. from the servers in Virginia. I dunno. My understanding is it's not necessary to charge others with these crimes, but the government still needs to show these crimes occurred or else Dotcom can't be shown to have aided and abetted them.
The government's case hinges on mixing and matching. The users commit infringement. Dotcom aids and abets for profit. But with that you don't have enough to actually plead criminal copyright infringement. You're taking pieces from the end users and pieces from Dotcom and pretending you can glue them together in a hodge podge, and no one takes the time to sort out who's actually responsible for what actions.
The government has to show that it was "for purposes of commercial advantage or private financial gain," which I think can be the gain of not paying for it (but I'm spacing on how that section is interpreted at the moment). Or it can show "reproduction or distribution, including by electronic means, during any 180–day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000." That part turns on the retail value of the works infringed. I don't think the government has to show that Dotcom did it for profit. I think it's enough that the third-parties he aided and abetted either gained from it or infringed works of a certain retail value. That Dotcom profited from it would go to damages (or forfeiture/restitution), not liability, IMO.
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I see...so that's how justice is supposed to work? You need to prove you're innocent?
What you wrote is exactly the problem.
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http://arstechnica.com/tech-policy/2012/07/kim-dotcom-offers-to-come-to-us-rather-than-be-ext radited/
Would you care to re-visit that opinion, sir?
He doesn't get some special rules just for him. He'd have to play by the same rules as every other criminal defendant.
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What you wrote is exactly the problem.
It was an offhand remark, and I wasn't thinking of the burden of proof at trial. Obviously, the government has to prove his guilt first, and then the burden shifts to him to prove his innocence. If the government can't prove his guilt, then his presumed innocence will win the day.
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Isn't the core of American justice "innocent until PROVEN guilty", boy?
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Have a nice day.
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Well, technically, yes he does warrant special treatment...he's not an American citizen. Be careful what you wish for. You'd have a shit fit if other sovereign nations could just force American citizens abroad because we violated one of their laws.
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So why are you presuming guilt, boy?
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Now you are saying he has an extreme bias.
The two aren't mutually exclusive. He won't state a firm opinion on whether he thinks authors should have any rights. The bias is where he regurgitates Dotcom's arguments without a hint of skepticism, even though some of these arguments are pretty dumb. Likewise, he's super-skeptical of any report that says anything good about copyright or bad about infringement, and he's not at all skeptical when it's something good about infringement or bad about copyright.
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Yes, but that doesn't mean we should just assume that all of Dotcom's self-serving arguments are correct.
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He's stalling the trial by fighting extradition. That doesn't mean he's not getting a speedy trial.
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At this point in time, based on the government's own history and evidence, Kim Dotcom has more credibility and respectability than the entire U.S. government.
As for violates due process, it depends naturally how you look at it. For someone like you, who loves weasel words and changing definitions to suit your needs, it doesn't. For the rest of the class, we could start with how the U.S. government took data and hard drives from the raid in New Zealand AFTER it was ruled they couldn't do so. Violation of due process. Oh wait, it wasn't a violation of U.S. due process, so that makes it okay in your book.
Hypocrisy, thy name is antidirt.
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Actually, boy, he's stated numerous times that copyright, as originally intended, is a good thing.
It's the ridiculous extensions instigated by corporations like Disney that he (and sane people) are against.
Your viewpoint on the matter is crystal-clear and your jacket with extra-long arms is ready.
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That would be very, very bad for personal liberties.
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"Yes, but that doesn't mean we should just assume that all of Dotcom's self-serving arguments are correct."
It also doesn't it mean we should just assume that all of DoJ's self-serving arguments are correct, right, boy?
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Did a court in NZ rule that copying the drives for the US violated his due process rights under NZ law? If so, that sucks. I don't recall that being the case, though.
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Corrected...
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I think what he did is morally wrong. I'm less certain that it's legally criminal. I don't have all the arguments yet.
You've created a false dilemma. Arguing against that bias isn't a "pro-piracy" bias because those aren't the only two options. You can be pro-due process without being pro-"piracy" or even pro-Dotcom.
The bias is that he's always super-skeptical of anything pro-copyright, and he loses his skepticism when it's anti-copyright.
Even if piracy were actually an appropriate term here, there can't be a pro-"piracy" bias because no copyright infringement has been proven. The US system of justice is supposed to have a pro-accused-but-not-convicted bias to presume innocence.
Nonsense. He can be pro-piracy by siding with the alleged infringers either before or after a court has ruled on it. Can you find any posts of his that lead you to think he's pro-copyright?
That's how it's a violation of due process. The Government is presuming guilt and proceeding on that basis. Any actions taken with that starting point are de facto violations of due process.
Huh? They aren't presuming his guilt. His innocence is presumed. They have probably cause that he's committed criminal acts. That leads to the warrants and arrest. Then, the government has the burden of proving he's a criminal. It works like this for everyone, and it doesn't violate procedural due process.
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While I've seen several commenters calling for the abolishing of all copyright, all I have ever seen from TechDirt is acknowledging that copyright law is in need of very serious reform, and it makes a pretty good case as to why.
There's a big difference between wanting laws to change and wanting to break the law. Techdirt wants the former but your futile attempts to peg it as "pro-piracy" is just a feeble (and pointless) attempt to make it look like it advocates the latter.
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There's no catch! If I'm wrong, and someone calls me on it, I admit it. It's a rarity on the internet, so that's probably why you're confused. :)
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So at the very least, the government cooked this up for Dotcom and then used it on someone else no one has heard of later.
That paper was published in 2013, but it's discussing the change to the Copyright Act in the 1970s. Aiding and abetting criminal infringement has been a crime for over a century.
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Also, does it not occur to you that he is being perfectly logical in employing illogical arguments against an illogical opponent? He's probably just going for a "quantity over quality" strategy in hopes that if he makes a huge number of arguments at least some will be believed or correct. Why make a few arguments when you can make a lot?
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While I've seen several commenters calling for the abolishing of all copyright, all I have ever seen from TechDirt is acknowledging that copyright law is in need of very serious reform, and it makes a pretty good case as to why.
There's a big difference between wanting laws to change and wanting to break the law. Techdirt wants the former but your futile attempts to peg it as "pro-piracy" is just a feeble (and pointless) attempt to make it look like it advocates the latter.
Well, I'm certainly biased pro-copyright. I freely admit that. That said, I try and call them like I see them--even if it means agreeing with the anti-copyright crowd. I think copyright brings out a lot of polar thinking. There are extremists in both camps. I think Mike is in the extreme anti-copyright camp. I think I'm closer to the middle, but definitely on the pro-copyright side of the line. I tend to think that both sides of the debate make good points. Mike, as far as I can tell, only thinks that his side makes good points.
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I'm skeptical of the arguments made by both sides. But that's just me. As far as I can tell, Mike turns off his skepticism when it comes to Dotcom's arguments. This comports with his bias generally. Any study that says anything "good" about copyright is summarily "debunked," while studies that show copyright is "bad" are repeated without question. It's pretty silly, IMO.
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That's it. Nothing more needs to be said.
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They might even destroy their careers losing a high profile case.
It isn't just DOJ, but the legal system in general.
Look at people cleared by DNA after decades of being railroaded to prison, and the current prosecutor threatens to try them again or other stunts to make sure they still are perceived as being guilty.
Protecting how people see the system, trumps actual justice.
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For instance, Bittorrent sites get busted all the time without authorities having any idea what Bittorrent actually is -- other than what Hollywood's lobby tells them, using carefully-crafted accusations that heavily distort what Bittorrent actually is and does. By the time prosecutors realize that no laws were actually broken, the case is too far advanced to stop it, and they are forced by tradition and custom (as well as ego) to push ahead with the prosecution full throttle.
Even though the DOJ has no case against Megaupload -and they probably know it by now- they will be forced to 'save face' by continuing their legal scorched-earth tactics to the bitter end. Sadly, That's how the system works. The three words you will never hear from the government are "We were wrong." Instead, they'll fight tooth and nail to try to justify their wrongful actions even when they know they have almost no chance of winning, since, let's face it, careers are on the line and it's not their own money they're using.
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It appears the government is tying the forfeiture to the direct infringement and conspiracy to commit direct infringement charges, not the aiding and abetting charge: "As set forth above and as incorporated in the Superseding Indictment, the Mega Conspiracy wilfully infringed and conspired to wilfully infringe copyrighted works when, for purposes of commercial advantage and private financial gain, it took numerous copyrighted works, including works it knew were being prepared for commercial distribution, and made them available on a publicly accessible computer network."
As far as which works this includes, the superseding indictment mentions: (1) a 50-cent song, (2) the works scraped from YouTube, (3) Alcohol 120 software, (4) "musical recordings by the artist Armin van Buuren," (5) loads of files from specific users, (6) a Soulja Boy video, (7) the Sopranos, (7) Grand Archives songs, (8) Louis Armstrong song, (8) "many infringing copies of copyrighted motion pictures, including Ocean's Thirteen, Ratatouille, and Evan Almighty," (9) BBC Earth, (10) My Blueberry Nights, (10) Dan in Real Life, (11) Taken, etc.
So it appears that the government has mentioned several works by name and is prepared to name several more. Source: http://www.washingtonpost.com/wp-srv/business/documents/megaupload-indictment.pdf
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The points you've made previously would indicate otherwise.
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I'm not going to delve into Mike's stance on copyright, since it's very clear to most of us and is a red herring of an issue, but I did want to point out that "pro-piracy" and "pro-copyright" are not exactly opposites. One can easily believe that the current copyright law is terrible while at the same time believing that piracy is wrong. I know I do, anyway.
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For example?
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Have you ever seen any evidence that Mike supports any copyright rights for authors whatsoever?
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There is a healthier debate for and against current copyright law at TechDirt than anywhere else I've found, and that debate is stimulated by taking a minority view, which happens to be asking what is ultimately best for culture, progress, and the people, and not just the bottom line of some industry.
And TechDirt only advocates this view because of the piss-poor reaction these industries have had to technological progress. I doubt, like most people, that TechDirt cared much about copyright until the internet made it everyone's problem.
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Want more?
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This is the kind of thing we should not be doing.
People are allowed to have conflicting opinions and as long as they're civil about it then we should not be reporting them.
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That is not true (but I guess you're too blinkered in thinking to have absorbed the information). Perhaps you haven't read up on the story..
Dotcom has time and again stated that he would willingly have this out in a US court IF he were to be allowed a fair trial and bail. The DOJ has refused those guarantees in official discussions.
The DOJ would NOT allow him access to funds to mount a proper defence and neither would they allow him bail - he would be incarcerated the whole time and the US likely delay the case for a number of years i.e. a few years incarceration without trial.
Just see the examples of the US justice system in the news e.g. 3 years incarceration for black juveniles awaiting formal charge and then all accusations suddenly dropped . And then factor in the powerful lobby groups wanting Dotcom specifically taken down, the embarrasment to the US if this action fails.
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The files were available all over the world and if, and that is a big if, MU is guilty then every country should get a part of the money not just the US. In my opinion it is a bit arrogant to say "we deserve everything" when the "we" represents only 320ish million people. China and India each have ~4 times the population, so why shouldn't they get a huge chunk of it?
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It's a red herring to ask for a court ruling that supports the argument that its unjust because its only intended, but not necessarily true, that a court would make a ruling that determines whether due process has been violated. If the system is corrupt, you can't expect just rulings to happen at all, much less quickly and/or decisively.
Expecting justice from a corrupt justice system is like expecting the truth from a pathological liar. On occasion, he may tell the truth, but you can't expect it every time.
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You must be the one recently asking a vet for a flu shot for a fried chicken. It seems like you have missed some developments.
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No big loss, anyway...
He carefully didn't actually state anything which is worth reading on its own. If he had stated "I was wrong, and the US government has no justification to seize Dotcom's assets", then I would agree with you that the posts shouldn't have been reported (and I have a suspicion that "you" are actually AD).
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associate entitled "lol". Attached to the message was a screenshot of a Megaupload.com file
download page for the file "Alcohol 120 1.9.5 3105complete.rar" with a description of "Alcohol
120, con crack!!!! By ChaOtiX!". The copyrighted software "Alcohol 120" is a CD/DVD
burning software program sold by www.alcohol-soft.com."
Mere file-names are not enough in and of themselves to constitute guilt. What if one of the files was named "Hot_Incest_Illegal_Child_Pron.avi"?
All that paragraph mentions is a file name and a description by the uploader. It mentions nothing about evidence showing it to be what it is purported to be.
The same goes for all the other files talked about in the pdf. I'm seeing file names only and no evidence that they are what they are actually named.
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(1) A large percentage of Internet communications are copyright infringement using P2P software.
(2) Anyone using P2P software illegally uploads in order to gain profit (as in, getting other parts of the file from others).
(3) Copyright infringement for profit is criminal.
(4) This criminal infringement is being willfully aided by Internet providers in general
(5) All Internet providers are also criminals, so we should shut them all down.
There now. Now the **AA's can go to sleep and rest peacefully, knowing that their bad dream of the Internet has been duly erased from reality... in order to serve Justice, of course.
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A much better argument is that it was the users of Mega that uploaded and shared those files. If it was the users, the Mega is just a service provider, and since they took down links in accordance with the DMCA, they're safe.
If the government can actually show that Kim or other Mega executives uploaded those files, then they're in the same position of Grooveshark. However, it's been almost 3 years since the raid, and the if the government had evidence, they would have said so long before now, just to shut the internet up. That they haven't is telling.
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Pro- / Anti- == false dichotomy
I'm also anti-piracy, but then, I'm also anti-littering. I'm not sure which should have the greater punishment, it seems to me to be a matter of context.
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If it's been proven so many times, it should be easy for you to show us this evidence now. What's the evidence?
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This is the kind of thing we should not be doing.
People are allowed to have conflicting opinions and as long as they're civil about it then we should not be reporting them.
I imagine the same people who are "reporting" my posts would proclaim their devotion to free speech and to the importance of dissenting views when asked. Thanks for saying something. It'd be nice if Mike said something about it, but since I'm being critical of him, I doubt he will.
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He'll get the same chance at bail as any other defendant.
The DOJ would NOT allow him access to funds to mount a proper defence and neither would they allow him bail - he would be incarcerated the whole time and the US likely delay the case for a number of years i.e. a few years incarceration without trial.
I've yet to see a decent explanation of how the government is withholding exculpatory evidence from him. I don't believe they are.
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If we were *not* skeptical of the government's position, then why bother having any judicial trials???
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It's a red herring to ask for a court ruling that supports the argument that its unjust because its only intended, but not necessarily true, that a court would make a ruling that determines whether due process has been violated. If the system is corrupt, you can't expect just rulings to happen at all, much less quickly and/or decisively.
Expecting justice from a corrupt justice system is like expecting the truth from a pathological liar. On occasion, he may tell the truth, but you can't expect it every time.
I'm a big supporter of due process, and if I thought Dotcom's due process rights were being violated, I'd say so. I think Dotcom will get a fair trial, should there ever be one.
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The complaint references the indictment. The indictment discusses the servers in Virginia and elsewhere in the U.S. I'd have to look up the case law on extraterritoriality to say anything intelligent about it.
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All that paragraph mentions is a file name and a description by the uploader. It mentions nothing about evidence showing it to be what it is purported to be.
The same goes for all the other files talked about in the pdf. I'm seeing file names only and no evidence that they are what they are actually named.
They have the servers, right? We don't know all the evidence yet since it's just an indictment. Perhaps the servers contain the actual file and records of when/where it was uploaded/downloaded.
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The rule applies to aiding and abetting liability under Section 2 generally, not just Section 2 applied to criminal infringement. If I have time later, I'll find you a cite.
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Given that the content industries hire companies to produce "red herring" files, this argument seems a bit weak. Certainly weak if we're talking about a criminal case.
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The specific "overt acts" are listed in the indictment, not the complaint. I'm not sure exactly how extraterritoriality works. But I think the government is hinging jurisdiction on the fact that some of the servers were located in the U.S.
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BWAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!
(deep breath)
BWAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!
(deep breath)
BWAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAJesus fucking christ you were serious?????
Dude, come on, you CAN NOT, with a straight face, make the claim that if you are called on something you admit it. You have NEVER admitted any such thing and you have been PROVEN wrong on many many occasions.
I'd laugh more if it wasn't so pathetically sad that you actually think this.
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There are very good reasons why extradition is not a simple rubber-stamp process. You don't seem to think you should be able to protect yourself from foreign court systems.
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This is the kind of thing we should not be doing.
People are allowed to have conflicting opinions and as long as they're civil about it then we should not be reporting them.
Are you kidding? This is Techdirtbag Nation- home of the anti-copyright echo chamber.
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1. Ummmm. There's these things called bail hearings. They're before a judge, not pre-determined.
2. He seems to have plenty of money to fight extradition from NZ.
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"Da law is da law" is the argument that mouth-breathing retards use who have absolutely no critical thinking skills.
And yes, that seven letter r-word is the correct one to use in this case.... it might even be KIND to those people.
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I'd be fine with them getting the proceeds of everything produced by companies in those countries. Their Presidents might have enough to go out to each at their local McDonalds.
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Funny thing, the English language. "Are you anti-abortion?" "No, I'm pro-life."
I wouldn't consider myself "pro-piracy", but I do despise what's been happening on the copyright infringement battlefield. Disney shouldn't even have many of the copyrights that are recognized to be theirs. How the hell do they get away with copyrighting centuries old fairy tales? I often wonder what the brothers Grimm's heirs think about this nonsense.
Then there's Canada which recognized (assumed!) infringement will happen, so they slapped a levy (tax!) on blank CDs. All blank CDs, assuming all blank CDs would be used for infringement and assuming all buyers of blank CDs guilty before the fact! Does that stop the Canadian gov't from attempting to up the ante criminalizing copyright infringement? Not bloody likely. Disney has money, politicians want money, and the resultant mess is a foregone conclusion. Screw you, Canadian taxpayer. Disney has spoken!
Damn, I wish you guys would fix your broken gov't (and this issue is nothing compared to (eg.) Kissinger vs. Cambodia).
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Is this any worse than the RIAA keeping all the money from the Napster, Grokster, Kazaa, and Limewire lawsuits, and then letting the recording artists (on whose behalf they were supposedly defending) hang out to dry?
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Yes, we dont know, and that is why we have a TRIAL to determine that. But we dont have a trial, and there is ZERO movement to get one going. But thats OK with you, as long as its your beloved All-Powerful Government doing the accusing, then accusation is enough.
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Dotcom, Ivins, Schwarz, etc all. Totalitarianism makes and remakes it's history as it seems fit.
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>
> Given that the content industries hire companies to produce "red herring" files ...
You can add to that the BS manner in which MS Windows allows files to be named. There's plenty of malware which rely on this sloppiness. That attachment in email that says it's kitten pix? Win* will happily run it as an executable anyway regardless of its filename. MS decided years ago that hiding file extensions would be a good feature for their users. I agree. Why they used them in the first place is a mystery. Unfortunately, all they did was hide them, not eliminate them nor the functionality.
Ergo, "KittenPix.exe.jpg" --> faceplant.
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So Dotcom can be convicted of aiding and abetting even if the direct infringer (the "principal") is not identified. Keep in mind too that there's the charges for conspiracy and direct infringement. It's not only aiding and abetting. Plus there's the money laundering (but I think that hinges on the copyright claims).
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You'd think so. Curious isn't it then that one of the gov't's early moves was to try to get the court's permission to blow away all the data arguing it was unnecessary and too expensive to keep.
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The government has copies, and the evidence will be (or has been) handed over to Dotcom as per the rules of criminal procedure.
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It makes for a fun and satisfying game. The tyrants think they're getting away with murder, only to find a Brutus shivving them in the back. Sic semper tyrannis!
We only live once, so make sure once is enough. This too shall pass. In the meantime, we get to torment the dipshits. Woohoo!
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Honestly I'm not familiar with those cases but if the RIAA got all the money and i.e. the Indian movie association (aka Bollywood) got none of it then in my opinion it is injust because as mentioned before all those copies were available in every country. I don't want to speculate why they(India and others) are that passiv because it would touch geopolitics and that would go way off topic but my general positon stands: they really should get a part of the seized funds because Hollywood isn't all that exists.
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So the US has a copy of every single file that was kept on a server hosted by Leaseweb retained as evidence before all those files were wiped off the server just over a year ago without Megauploads knowledge and will give Dotcom a copy of all that evidence containing all those millions files then?
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I'm not sure exactly what files they have, but I doubt they have a copy of every file that was ever stored since there were so many. They probably have the server logs, the emails, the files that were allegedly infringed, etc. You know, the relevant files. How are any of the other files relevant? I know Dotcom whined about exculpatory evidence being lost, but I don't understand how those other files are exculpatory. Is it because they might not have been infringing? If so, I don't see how it's relevant. Can you explain.
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The part you bolded seems to suggest that they don't have to convict(or even identify, which is all sorts of screwed up) the one who committed the 'original' crime, however this part:
'Nonetheless, as an element of the offense of aiding and abetting, the government must prove that someone committed the underlying crime.'
Would seem to be saying that they still have to prove that the original crime occurred.
They can't just say 'He's accused of aiding and abetting criminal copyright infringement', and try him for that, without first proving that the original crime of 'criminal copyright infringement' actually took place.
As for the money laundering charges, those are completely ridiculous, and honestly, seem to be added on for the sole purpose of meeting the requirements of extradition, since simple copyright infringement wouldn't be enough for him to be extradited for. If paying your bills counts as money laundering, a whole slew of people and companies are in trouble, and not just the shady types.
Run a company and get charged with some minor accusation, valid or not? Did you pay the bills related to your business during that same time period? Bam, instant money laundering charges.
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Wouldn't it be more productive to explain why you disagree with someone than to "report" the post? Are you threatened by people who think differently than yourself?
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They can't just say 'He's accused of aiding and abetting criminal copyright infringement', and try him for that, without first proving that the original crime of 'criminal copyright infringement' actually took place.
Correct. They need to prove that someone committed criminal infringement for Dotcom et al. to be guilty for aiding and abetting that crime. It seems like that's not hard to do assuming the server logs spell out what files were uploaded/downloaded. The records they kept for their affiliate program should do nicely.
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Which Kim Dotcom did and which the DMCA SPECIFCALLY said was all he had to do. Remove the things when informed of them, NOT proactively screen for them, which the people writing the DMCA realized was IMPOSSIBLE to do.
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They have been playing fast and loose with what the law actually allows from day one, second one, MILLI-SECOND one.
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This is SHARING, that thing that we have been EXTOLLED by our parents and PUNISHED for NOT doing by our parents for MILLENNIUMS!
Get the terms right, then we can talk about everything else.
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So what you are saying is that anything that can help Dotcoms defence you don't see how its irrelevant. Anything on those servers that can be helpful in Dotcoms defence should be available to him to use but because the files were wiped off the servers without his knowledge that is no longer an option but the only files that were copied by the prosecution were cherry picked by them that they deem will incriminate him. Is it any wonder that a fair trial cannot be given being as all those files were wiped off the server and none of which can no longer serve to help Dotcoms defence.
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I believe for criminal copyright infringement it is something like 5 years.
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I'm saying I don't understand how any of the files he doesn't have could possibly help him. What was on the those servers that could have helped him?
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It has not one iota to do with feeling threatened. It has *everything* to do with the fact that I have only so many breaths in my life to take, and why waste them on someone who exists *solely* to take a contrarian view to whatever is posted on this site, EVEN WHEN HE DIRECTLY CONTRADICTS HIS OWN PREVIOUS STAND to do so? We are not fucking Sisyphus, we have lives to live that should be *productive*
Even writing this is putting me one step closer to the grave for ZERO benefit to me, but hopefully some good will come of it for others to see your ridiculous and absurd *appeal to authority* for what it is.
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You also seem to accept at face value Dotcom's argument that the forfeiture is based on extraterritorial conduct, and the copyright statute does not cover extraterritorial conduct. But you, Mike Masnick, know that much of the data on Megaupload was hosted in the US. I know you know this because you have written many TD stories about Megaupload's US hosting partner, Carpathia. And even if Carpathia were outside the US, distributing copyrighted files into the US from a server outside the US is conduct within the scope of US copyright law. So again, I am surprised that you are so accepting of Dotcom's arguments on this issue.
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How is that blind loyalty to your government working out for you guys so far.
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Say you've got a server with 100 files on it.
40 of them are clearly infringing, or have been proven to be so.
40 of them are clearly not infringing, or have been proven to not do so.
20 of them have the status unknown. They may be infringing, they may not be, it's not clear either way, and their status as such hasn't been determined.
Now, say a government agency, under some not so subtle prodding from a third party, is interested in showing that the company who owns the servers is running a massive piracy haven, and the service is almost entirely for nothing but piracy.
If they're trying to make the service/company look as bad as possible, in order to bolster their case, they're going to be interested in the 40 files that support that idea, maybe including in the 20 'maybes' to show that while some of the files on the service might not be infringing, the majority of the files(according to their 'sample') clearly are, and the one running it obviously must have known this.
If the defense is allowed access to the same servers, they can present the opposite, showing the 40 clearly not infringing, and 20 'maybes', to show that the service was primarily being used for 'legitimate' files.
Alternatively, and more honest(likely more effective too), they could point out that the number of clearly infringing, and clearly not infringing, are equal, with the maybes going either way, undercutting the idea that the service is primarily being used for infringement, and showing that is does have significant 'legitimate' use, which has been ruled previously to be good enough in court as a defense.
The DOJ had a vested interest in finding the most damning files, to make the service look as bad as possible. Dotcom, the exact opposite. However, with the destruction of the files on the servers, and the DOJ's 'samples' all that remains, Dotcom is no longer able to gather a 'counter' sample, and, for what I hope is obvious, having to depend on the 'sample' gathered by the DOJ isn't likely to help him much.
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Thanks for the comment. I'm sure Mike won't respond. Good call on the NET Act. Here's the text if anyone's interested: http://www.gpo.gov/fdsys/pkg/PLAW-105publ147/pdf/PLAW-105publ147.pdf Section 506 does in fact say "for purposes of commercial advantage or private financial gain." But I think the point you're making is that the NET Act added this to Section 101: "The term 'financial gain' includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works."
You also seem to accept at face value Dotcom's argument that the forfeiture is based on extraterritorial conduct, and the copyright statute does not cover extraterritorial conduct. But you, Mike Masnick, know that much of the data on Megaupload was hosted in the US. I know you know this because you have written many TD stories about Megaupload's US hosting partner, Carpathia. And even if Carpathia were outside the US, distributing copyrighted files into the US from a server outside the US is conduct within the scope of US copyright law. So again, I am surprised that you are so accepting of Dotcom's arguments on this issue.
It is strange how much Mike just regurgitates Dotcom's arguments. Well, it's only strange if you think Mike's goal is to get to the truth. The indictment does focus on the files stored in Virginia: "From at least November 24, 2006 until at least January 19,2012, infringing copies of copyrighted materials were stored on computer servers located at Carpathia Hosting in Ashburn, Virginia, which is in the Eastern District of Virginia." What's unclear to me, though, is where the specific files mentioned in the indictment were stored or uploaded to. For example, as to a Louis Armstrong song, it says: "An infringing copy of this copyrighted work was still present on servers leased by the Mega Conspiracy as of September 2,2011." Does that mean on the servers in Virginia? I know Dotcom used servers in the U.S. and abroad. The extraterritoriality issues aren't exactly clear, IMO.
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I haven't really followed that closely. I know at first the court said the warrant was faulty, but then an appeals court said it wasn't. Yet, the appeals court agreed that the drives shouldn't have been turned over to the U.S. But even if the New Zealand government shouldn't have turned them over to the U.S., I don't see how that makes them inadmissible in the U.S. Moreover, the U.S. got the evidence it needed for the indictment from the U.S.-based servers, and there's no argument that the warrant in the U.S. is faulty that I know of.
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I don't see how the government's case changes one iota even if it concedes that there were millions of files that were lost that are all noninfringing. The case isn't about those files. It's about the files that are the works-in-suit. Dotcom can't point to the files that are noninfringing to prove anything about the files that aren't. Even if every single file that's gone is noninfringing, that doesn't change a thing.
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Are you also as financially corrupt too? How much are you paid to try to discredit this site?
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A law was technically broken, under which, if you attempt to plead innocent then the full weight is brought against. In this particular case, if the event occurs then you are automatically guilty. However, there is a twist, if you plead guilty, it is required that the court find out if there is any extenuating reasons for the event, at which point the minimum fine can be administered and nothing put against your record.
The persecutor and police expert witness were both so annoyed by the actions of the policeman who brought the charges, that they did everything they could to thwart the charges (including I believe bringing up the circumstances to the Judge).
So there are times when the honourable people are available and Justice is rightly served. But it can be a rare event.
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That's the way the so-called "justice" system works in the United States. It has absolutely nothing to do with justice. It's about all-out warfare, and the DOJ is Hollywood's paid mercenary.
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First, your account is still here, and not blocked. You are not prevented from making new comments. You have acknowledged in the past that it's the USERS of the site who are clicking the report button and not Techdirt staff.
Secondly, here's a TD article I remember very well.
https://www.techdirt.com/articles/20130828/05042724332/man-who-raped-14-year-old-sentenced-to-30-day s-jail-because-girl-looked-kinda-old-internet-is-mean.shtml
369 comments. Quite a discussion going on. Going back through it, I see all of 2 comments being hidden, and that was because they were short and had coarse language in them. The debate got quite heated with TD staff weighing in from time to time.
If TD were anti free speech, then the prediction is obvious - they should say their piece and then block the comments of all those who disagree with them. Let's check that article?
Oh wait, that doesn't happen. There were plenty of people with plenty of comments disagreeing with TD staff and yet their comments WERE NOT BLOCKED.
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You got royally smacked down by Mike and he set you straight. Wasn't that around the time the barnyard noises started?
Fortunately after that episode you dissapeared for a few months (maybe you spent time in a padded cell, not sure).
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KDC offered to fly to the US under certain conditions. He wanted to make bail and he wanted access to his funds so that he could mount a defence. The DOJ flat out denied both, so he fought extradition.
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Anyway like I previously said. This is his blog, if you don't like it, don't read it!
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Mike Masnick and the commenters here are fully aware that their excuses for lawbreaking don't hold any water, so it is impossible for them to refute dissenting opinion. So they simply censor instead.
Personally, I don't mind at all, as this blog has taken quite a continuous and public dive the past 5 years. But we know who's fault that is, don't we? :)
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Site feature request
Being able to collapse an entire thread would make it much easier to scan through the relevant threads.
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Really? Then how come I NEVER have had a problem with this site, and I too am using a high end computer? I can tell one thing you're doing wrong already and that's the fact you say you say you use Internet Explorer.
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I also might have more respect for your position if it were not automatically against every single article here. Even regular commenters will disagree with Mike (or other posters) on occasion, and say so. I know there's a few areas where I differ with him. But you, you are like a negative image (and I mean that emotionally as well as literally) of the site.
In the extremely odd case where you have constructively added to the overall post, it has been refreshing and helpful. It is a shame that it is rarer than a blue moon. It also does you no good to mawkishly whine over people 'daring' to report you (being fed up with your unhelpful negativity), let alone getting a little trigger-happy with the Report button.
No-one expects you to agree fully with Mike or the other posters, but appearing to automatically disagree with everything they say seems really petty.
In short, you do yourself no favours, and if you wish to be taken seriously (which I assume you do if you post here) and don't want to end up losing any actual message you are trying to convey in all the garbage, negativity and whining, you need to stop constantly attacking, and try adding constructive criticsm.
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Oh noes, did your wife/gf post a picture of her sitting in control of a car? She'd better get over to Saudi Arabia double-quick!
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We should obviously take the US government at their word they will act lawfully and ignore their constant unlawful actions
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All the pro-stifling-creativity do is bawk "money! piracy! end of the world! the sky is falling!", while trying to justify legal shenanigans, outright illegal actions by major corporations and government, or moral outrages perpatrated on innocent printers and dead grandmothers.
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It would appear that you don't care about anything that could help Dotcoms defence about Megaupload being destroyed because to you you couldn't care less about anything that would show innocence being destroyed because that innocence doesn't help your case of making and finding him to be guilty. The more evidence of innocence being destroyed being destroyed the better with you because its not about innocence with you but guilty. Guilty till innocence is proved with you always never innocence until proved guilty as per the legal system. /sarcasm.
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My point is not to engage in a technical debate about browsers, but merely to point out that the hiding of comments can have negative consequences in attempting to use the site. This is readily apparent to me after trying to follow the discussion here and having all of the devices I was using slow to a crawl before the browsers stopped working and returned me to the respective desktops.
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The fact that the US have filed for a forfeiture claim shows that they do not have the right to control/possession of the assets, property etc. in question to do what they like with.
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Not as much as you should get...
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I have no clue myself, but Dotcom's defense team believes there might be.
That aside, doesn't that go against pretty much every rule concerning evidence and discovery? The prosecution never gets to cherry-pick evidence then destroy everything else, does it? I thought rules of discovery required that the defense gets to see ALL of the evidence obtained against them, including that which might help them mount a viable defense. In any other case this type of action would cause a mistrial or at the very least overturn a conviction on appeals, wouldn't it?
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Oh look, you found a way to slip in your classic 'Mike's too cowardly to debate me' line by trying to disguise it as a generality. How completely unexpected! /s
It is strange how much Mike just regurgitates Dotcom's arguments. Well, it's only strange if you think Mike's goal is to get to the truth.
And look at that, another personal attack.
This is why your comments get reported AJ, because 99% of the time you seem to have the digital version of Tourretts, and find it impossible not to insult someone(usually Mike).
(As an aside, I find it rather funny that you're accusing Mike of 'regurgitating Dotcom's arguments, when you seem to be doing the exact same regarding the DOJ's. Double standards much?)
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Actually, you know what, re-reading that, I think I can sum up the matter much easier:
EVIDENCE. There was evidence on the servers. Maybe of guilt, maybe of innocence, but the files on those servers remained evidence regardless. Only allowing one side, the prosecution, to go through and cherry pick out what evidence they wanted to build their case, while prohibiting the defense the same opportunity, and then allowing the servers to be wiped, destroying evidence, should be enough to get the case tossed all on it's own.
(Not even going into the fact that by wiping the servers, or allowing them to be wiped, Dotcom has effectively already been found guilty and punished accordingly, all before the trial ever happened, as that destroys the business that was using those servers)
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It seems to me that all three situations are at play here, so I really don't know how the government can successfully win a trial on this with such blatant disregard for the rules.
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The fact that the US have filed for a forfeiture claim shows that they do not have the right to control/possession of the assets, property etc. in question to do what they like with.
It's a two-step process. First the government demonstrates to the court that there's probable cause to seize the property (for example, if the property is the fruit or instrumentality of a crime). The court issues a warrant and takes either actual or constructive possession of the property. Then the government demonstrates to the court that, by a preponderance of the evidence, the property which has already been seized should also be forfeited. The seizure is temporary. The forfeiture is permanent. Dotcom's assets were already seized when the court issued the warrants (which the foreign jurisdictions enforced). The issue now is whether Dotcom should lose those assets permanently.
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That aside, doesn't that go against pretty much every rule concerning evidence and discovery? The prosecution never gets to cherry-pick evidence then destroy everything else, does it? I thought rules of discovery required that the defense gets to see ALL of the evidence obtained against them, including that which might help them mount a viable defense. In any other case this type of action would cause a mistrial or at the very least overturn a conviction on appeals, wouldn't it?
Well, it's not a matter of the government having the evidence and refusing to turn it over. I think a good analogy would be if I rent a storage locker and keep evidence of my crime in there along with a bunch of crap. If the government searches the locker and seizes the evidence, but then leaves the crap, I can't complain that the evidence is being kept from me if the government chooses to not pay the rent so my crap stays in the locker. The owner of the locker can auction off my crap or throw it away, and that doesn't affect my legal case.
But it's the fact that keeping relevant, exculpatory evidence from Dotcom would undermine the government's case that makes me skeptical of Dotcom's argument that there's anything relevant being kept from him. Aren't the servers just full of files stored by third parties? How do those third-party files help Dotcom? Unless the government is claiming those files are infringing, I don't see how they matter. They're the crap I let my friend store in my locker. They don't have anything to do with my legal case. I can't point to the legal crap I kept in the locker to escape liability for the evidence of the crimes that I also kept there.
What possible evidence could there be? How are a bunch of files stored by third parties relevant? That's what I'm asking.
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Mike doesn't defend his nonsense when called out on it. And it's not just when I do it. This AC called Mike out, and, as I predicted, Mike was silent. Was I wrong?
And look at that, another personal attack.
This is why your comments get reported AJ, because 99% of the time you seem to have the digital version of Tourretts, and find it impossible not to insult someone(usually Mike).
(As an aside, I find it rather funny that you're accusing Mike of 'regurgitating Dotcom's arguments, when you seem to be doing the exact same regarding the DOJ's. Double standards much?)
I do challenge Mike, substantively and personally. So what? I disagree with what he says, and I explain why I think he's wrong. I think he's selectively skeptical, and I point that out. That's me stating an opinion, and I'm happy to back up my opinion with substantive argument. That should be celebrated, not punished. Debate is a good thing. Dissent is a good thing. It's unreal that I have to defend the fact that I have an opinion that I defend. WTF?
And I don't just regurgitate what the government says. I've stated above that I think Dotcom makes a good point about what works were allegedly infringed, and more importantly, where those infringements allegedly took place. The government may well have the evidence, but I haven't seen it yet. But that's not surprising, as we're still at the very early stages. I think the government has probably said enough to get past a motion to dismiss, but I don't think they've shown enough to get a conviction. I'd love to have all the evidence now, but we don't.
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Thanks for the comment. There's two types of forfeitures, criminal and civil. Criminal forfeiture, which is what I think you're thinking of, happens after conviction. Civil forfeiture, which is what this is, can happen before conviction. The government just has to show that the property is forfeitable by a preponderance of the evidence.
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9/10. Would LOL again.
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Right. Substantive arguments like calling him (and everybody else here) a bunch of thieves and/or pro-piracy. For the record, I don't think I've ever seen you back up your personal attacks and accusations with substantive arguments. It's just name-calling.
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Of course, if you have extensions hidden and suddenly see one, plus it has an executable icon and under type says "Executable File" I think you should figure it out. Then again, I turn on file extensions because I like to change them (e.g. file.dll.old) when I want to for things like ENB and other game mods.
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(E) Documents and Objects. Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief at trial; or
(iii) the item was obtained from or belongs to the defendant.
Source
It seems to me that all three situations are at play here, so I really don't know how the government can successfully win a trial on this with such blatant disregard for the rules.
Thanks for looking that up. Crim Pro is not something I know much about. That said, I'm not sure how all the servers were ever within the government's possession, custody, or control. And even if they were, my question is how the files were "material to preparing the defense," intended to be used in the government's "case-in-chief at trial," or "obtained from or belong[ed] to the defendant." That's my point. How are the files stored by third parties that aren't at issue is this case "material," i.e., relevant?
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I could think of a couple things that would be relevant. I believe (haven't looked into this case for a while now) that Dotcom was claiming that some of the files that they are charging him for infringing were ones that the USG told him to keep in place while investigating and building a case against NinjaVideo and never told him he was free to remove them.
Also, wouldn't evidence of complying with DMCA takedowns (even though he wasn't really required to do so) provide evidence that they were attempting to comply with US laws and therefore weaken the conspiracy to commit infringement allegations due to the DMCA safe harbor provisions?
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I think Mike is obviously pro-piracy, and this post is probative of that conclusion. He just recites Dotcom's arguments, with no examination of the merits of those arguments, verbatim. Yet, he's completely skeptical of everything the government says about Dotcom. Why is he so skeptical of every single thing the government says, yet so completely fawning of whatever Dotcom's lawyers argue? My suggestion: Because he's pro-piracy, and he loves Dotcom. That's substance, not name-calling. Has Mike ever even mentioned the remote possibility that something Dotcom argued Mike possibly be wrong? Of course not. Mike doesn't do substance. He does form. And "protecting" his "friend" Dotcom takes precedence over substance all day long on TD, IMO.
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Yes! I forgot about that. Thanks! If true, that certainly cuts in Dotcom's favor. But, I have to ask, are those particular files among the ones that the government says are criminally infringing? My point is that, while I'm sure there's some examples of Dotcom "doing the right thing," I don't see how those examples explain away the times when he allegedly didn't. You can't point to all the times you didn't break the law to defend the times you didn't. "Well, I didn't sell cocaine to Person X" doesn't excuse the time you sold cocaine to Person Y.
Also, wouldn't evidence of complying with DMCA takedowns (even though he wasn't really required to do so) provide evidence that they were attempting to comply with US laws and therefore weaken the conspiracy to commit infringement allegations due to the DMCA safe harbor provisions?
That's another great point. I honestly don't know how the DMCA applies in a criminal case. I haven't thought about it, and I don't think the issue has been litigated. That said, the government contends that Dotcom did acts that would make the DMCA safe harbors not apply--even if they potentially did.
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I don't know about possession or custody currently, but they were at one point when the government was able to get "their" evidence. As for control, absolutely, since the USG is not giving the defense the opportunity to investigate the servers or allow Mega the funds to preserve the data.
That's my point. How are the files stored by third parties that aren't at issue is this case "material," i.e., relevant?
I don't know myself either, but the rules of discovery are designed to afford the defendant the opportunity to build a defense. By keeping the servers away from Mega's defense team the USG is effectively crippling the defense and stomping on due process.
I would also think that the server logs themselves would be relevant because that would give clues as to when, where and with whom infringement happened (or didn't happen). Can the defense team be assured that the government has kept them in toto or has the prosecution only saved the ones that help their case?
Going back to your storage unit scenario above, would it fly if the government seized the "supposed" stolen goods from the storage unit and had the rest of the contents destroyed, including the bill of sale that proves the good are not stolen?
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What possible evidence could there be? How are a bunch of files stored by third parties relevant? That's what I'm asking."
Not only should you be reported for these 2 absurd and blatantly anti-defendant, anti-due-process paragraphs, you should be barred from ever commenting on anything on the internet ever again.
Yes, these comments of yours are THAT bad.
Just because you think that, maybe, there might not be any useful evidence (proof of which you claim is that because YOU dont see it, it must not be so) that ALL the evidence should be kept from the defendant. That the government can destroy whatever parts they want and thats OK, because after all, what could there possibly be to help them anyway? And then you want Kim to willingly come to the US with no assurances and just "trust" this insane system you support to give him a fair trial? How do you sleep at night?
This may be the most absurd thing I have ever read on the entire internet. And that encompasses a LOT of fucking stupid shit.
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Now I am simply disgusted at the DOJ's repeated attempts to keep Dotcom from mounting a viable defense at every turn. That is not justice in my book, it is blatant attempt to railroad someone. If the government's case is so weak that they have to resort to these type of tactics in order to "win" by attrition they should drop the case and spend my tax dollars in a wiser fashion.
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Asshole, it DOESNT MATTER WHAT YOU (or the govt) THINKS! ALL the evidence MUST be provided for a defendant to make his case. You just arent getting that. If only SOME of it is to be provided, then it may as well ALL be thrown out. YOU dont know, the GOVT doesnt know, probably Kim doesnt know ALL the evidence in question that might help his case. You, I and the govt dont get to decide that. The defendant MUST be allowed to see this or there is no, I repeat NO ZERO ZILCH chance of a fair trial.
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I disagree. When Megaupload was first taken down Mike had this to say:
Mike's attitude about this case has changed since then, but not because he is "pro-piracy" or Dotcom's buddy or whatever. It's because of the outlandish behavior of the DOJ and their constant twisting of the law in this case starting from the indictment and continuing on to this day.
I also believe that Dotcom possibly broke some laws, but the DOJ's actions to this point have been far, far worse and have given me ample reason to be skeptical of anything they say concerning Mega and Dotcom.
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Also, my memory might be off, but I thought it was impossible to have a civil case against someone in another country, for that to work the charges must be criminal. As such, given he is not a US citizen, the charges, and the case attached, would have to be criminal, which would mean they'd be forced into criminal forfeiture laws/rules, not civil, making seizing his assets before he's found guilty a violation of the laws.
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