Megaupload Programmer Takes Plea Deal, Though It's Still Unclear What Criminal Law He Violated
from the out-of-options dept
A few days ago, it came out that programmer Andrus Nomm had flown to Virginia to be arrested. Nomm had worked for Megaupload in Europe and had been listed in the criminal case against Megaupload and its various employees. His name had mostly fallen off the radar, since he wasn't down in New Zealand with most of the rest of them. It was obvious in his move to come to the US and be arrested that he must have worked out a plea deal with the feds, and that's confirmed today with him pleading "guilty" to criminal copyright infringement with prosecutors asking for a year and a day in prison, which the court granted. Kim Dotcom noted that he has "nothing but compassion and understanding for Andrus Nomm."It seems clear that Nomm agreed to some sort of deal to get the overall threat off of his back and to be done with it. It's very, very, very likely that part of the "deal" is to testify against Megaupload and all of his former colleagues. But, reading through the Justice Department's self-congratulatory pat on the back over this plea deal and the indictment against the Megaupload team, I'm still confused as to how this is a criminal charge at all. It seems like he may very well be guilty of civil copyright infringement in personal downloads that he admitted to. But the rest... I don't see how it meets the requirements of criminal copyright infringement. Here's the DOJ statement:
In court papers, Nomm agreed that the harm caused to copyright holders by the Mega Conspiracy’s criminal conduct exceeded $400 million. He further acknowledged that the group obtained at least $175 million in proceeds through their conduct. Megaupload.com had claimed that, at one time, it accounted for four percent of total Internet traffic, having more than one billion total visits, 150 million registered users and 50 million daily visitors.Of course, the statements about how much "harm" was caused, and even how much money Megaupload made are meaningless. Pretty much everyone knows that anything signed in a plea agreement doesn't mean anything. The more important question is how the rest of it is criminal copyright infringement. For it to be criminal, it has to match certain criteria, and working on a software platform that is used for others to infringe certainly does not reach that level. Nor does knowing that some movies -- uploaded by others -- with the FBI anti-piracy warning message were uploaded (that message, by the way, has basically no legal power). Finally, as for his own personal downloads, those, too, would be civil infringements, not criminal.
In a statement of facts filed with his plea agreement, Nomm admitted that he was a computer programmer who worked for the Mega Conspiracy from 2007 until his arrest in January 2012. Nomm further admitted that, through his work as a computer programmer, he was aware that copyright-infringing content was stored on the websites, including copyright protected motion pictures and television programs, some of which contained the “FBI Anti-Piracy” warning. Nomm also admitted that he personally downloaded copyright-infringing files from the Mega websites. Despite his knowledge in this regard, Nomm continued to participate in the Mega Conspiracy.
And it seems like that may be the only thing he really did wrong from the explanation. He worked for a site that some people used for infringement -- but that's true of lots of internet companies. And he personally downloaded some stuff -- which is also true of a huge number of people. How does he end up in jail for a year other than because the US government came down on him, and he had no other option?
Frankly, this is embarrassing for the DOJ. I wouldn't be putting out a press release for them. Yay, they railroaded a programmer who worked on an internet platform into a "guilty" plea and a year in jail because he helped build a cloud computing system not particularly different than many others out there? What sort of "law enforcement" is this?
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Filed Under: andrus nomm, copyright, criminal copyright, doj, kim dotcom, mega conspiracy, plea deal
Companies: megaupload
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Biggest crime of all
It is to laugh.
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That's okay. The RCMP and Parliament will happily enforce it for them (plus C-51(?) ffs). We're getting our own PATRIOT Act soon. The FBI needn't open up any local branch offices. We're Five Eyes safe, after all. Everybody watches everybody.
So, I'm on Debian testing/jessie, and I've downloaded "Yes: Big Generator Full Album" via "youtube-dl", a FLOSS thingie which comes with Debian. How do I now burn that onto a blank DVD (I don't have any blank CDs). I used to own a legally purchased version on cassette tape (though that's "immaterial"). I'm using the Mate desktop and Fluxbox interchangably.
I've never done this before. YouTube let me DL it. I'm sure there's a way to burn an mp4 onto a blank disk. HP sold the hardware to do it. I'm in Canada and we pay a tax on blank media to cover this. Is this legal, or can I be sued?
Silly to have to care about @#$ like this on a sunny spring Sunday in the privacy of my home, and I'm hardly offending in any way the way the NSA is, yes? Cheers.
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Time to move the DOJ to Hollywood.
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If you are going down... might as well drag those you hate down with you. Misery loves company and the criminals running this country knows it.
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who knows, maybe he had a some kiddie pron on his 'puter (or was planted), so taking a deal and ratting/lying on his former co-workers was his only way out...
i am FAR MORE likely to believe that, than ANY bullshit put out by the dept of (in)justice, etc...
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What Criminal Law He Violated?
This resulted in much hand wringing and wailing on their part. In turn this caused their political water carriers to rustle the jimmies of the Justice Department resulting in a torturous twisting of questionable laws and great pressure being brought to bear on the "suspect".
I'm certain had the recording industry thought they could get away with it, they would have asked for the death penalty plus the seizure of all his worldly assets and the indentured servitude of his entire family for life plus 70 years or so.
Perhaps this desire will be revealed in the TPP.
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While people who tortured and killed walk free
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Re: While people who tortured and killed walk free
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"You only live once. Make sure once is enough." -- ?
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There's something so immoral and wrong about that. If he is so dangerous and did something so illegal that you threaten him with decades of prison, then why would you accept only a year or two of prison for him then?!
This system is clearly meant to SCARE "mostly innocent" or even completely innocent people to go to prison, and declare it a "win" for the prosecutor.
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Never mind threatening; how about actual sentencing?
In the 1980's there was a case involving a 23 year old giving a marijuana cigarette to a 15 year old. ONE cigarette. The sentence: 40 years in jail. Read that again: FORTY years in jail. It took several years of appeals before the state Supreme Court ruled that this sentence was in violation of the US Constitution and remanded back to the original court for re-sentencing.
I've no objection to jail time for such things but this sentence was outrageous.
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what a way to run a country! have the security forces in control, just like Nazi Germany, then have them lie through their teeth to make charges suitable for the made up laws!! millions died to stop this and here we have it happening, on our home ground, and not a single thing is said let alone done about it!
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Seems we're in the third quarter, here...
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It's the sort of law enforcement
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Id call it a twisted kinda moral logic, but then i'd be implying morals were involved
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F disgusting
individual vs vast entity
Entity initiates attack using resources a high percentage of people of a nation has little defence against......for a NON CRIME........YES.......a NON crime
F disgusting........bunch of mafia "sainted" bullies
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It's possible that the MPAA had private investigators following him everywhere he went, digging into his private life, "interviewing" his family members, friends and neighbors, sabotaging his relationships and employment. Maybe they found something he'd rather keep secret.
And under the strain, he folded, figuring it was better to spend a few months in a US prison, put it behind him, and then get back to a normal life without the constant harassment and threats.
And maybe there was a carrot in addition to the stick. There's no doubt that the US government and MPAA desparately need to nail Kim Dotcom, if for nothing else than as a face-saving measure. We may never know the full scope of under-the-table deals that took place, but we can be sure the rabbit hole runs deep.
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If you think about it, if their looking for a patsy, an easy mark, and they have the system already set up to look and confirm this easy target, would they use it?
I suspect, if not yet, this is the kind of thing that it will be used for.......and i suspect a few in the position to use it are just abiding their time for this to become law......baby steps to extreme surveillance.......no sorry, on seconds thoughts, no baby steps to extreme surveillance, we've long past that point, .....baby steps for 99.9% surveillance maybe
Bunch of voyeurs
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The DOJ started calling them that in the original indictment. They have been trying to negatively influence potential jurors from the get go. Just another reason to think their case isn't as strong as they would like everyone to believe, if you ask me.
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The Conspiracy against Mega
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Its the American way!!!
These days it doesnt mean anything good.
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As far as I can tell, it's not really copyright law that the DOJ is trying to enforce in the MegaUpload case. They have mixed and matched civil and criminal statutes when and wherever it suits them.
They are basically trying to make up new laws to enforce, IMHO.
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There was a conspiracy to break copyright law.
Mike Masnick knows this, and you ought to as well.
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Maybe, maybe not, but it's pretty clear that the DOJ isn't so sure they can prove it.
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It's amusing that you think this will be difficult to prove.
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Yes, the government alleges there is a "conspiracy" and that is fine. I question the DOJ's use of phrase "Mega Conspiracy", complete with the capitol letters.
MegaUpload_Indictment
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http://www.washingtonpost.com/wp-srv/business/documents/megaupload_indictment.pdf
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No. If any, there was a conspiracy to profit from the breaking of copyright law by others.
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I am sure this guy will have been offered a smaller sentence and been forced to agree to be a witness against Kim Dotcom in the future, they only gave him a 1 year sentience so that when he has to be a witness he is not in a jail and therefore the jury would not see him as saying things to get out earlier or receive special treatment.
Still this should have been a civil case not criminal.
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1) the person has committed copyright infringement;
2) for the purposes of commercial gain;
3) through electronic means and the works have a value of more than $1000; and
4) the work was "prepared for commercial distribution"
Mega was a business and he was getting paid, so 2) isn't going to be too tough. 3) and 4) are also not going to too difficult: there were probably plenty of Blockbuster Hollywood movies in the mix there, and no matter how much you want to argue about how to "value" the cost of movie piracy, $1000 is not a high bar to reach.
So we're pretty much left with the first question, which is: did he commit copyright infringement in the first place? After the isoHunt and Grokster cases, it seems pretty clear that courts are happy to nail you for contributory infringement if you're running a supposedly content agnostic service but the evidence shows that you were aware of specific copyright infringing content being traded. Maybe if this had gone to trial they wouldn't have been able to prove that part. But since he admitted as part of his plea that he had downloaded copyright infringing content himself from MegaUpload, that part is pretty much taken care of.
I'm not saying they had an airtight case against the guy, but the criminal copyright charges aren't THAT far out there.
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No, that's wrong. They have to show that *MEGA*/employees committed *the infringement* in order to get paid. What the government can show is that *users* committed infringement, which may have helped Mega get paid, but those are two separate actors. Not the same one.
Furthermore, they'd need to show that it's *the infringement* that got Mega paid, and not just "paying for the services the site offered."
I'm not saying they had an airtight case against the guy, but the criminal copyright charges aren't THAT far out there.
You're falling into the DOJ's trap of pretending that it can just mash up the user's actions with Mega's, and assuming they're a single party. That's not how it works.
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No. There is no secondary infringement in criminal copyright law, only in civil (via case law).
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So?
Go read Grokster again. Go read the definition of conspiracy again. You know this already.
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Grokster was a civil case, not criminal. Reinforces my point.
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Grokster ruled that inducement is secondary infringement. Infringement is breaking the law. Conspiracy to break the law is criminal law.
Stop pretending you don't know this. You're embarrassing yourself.
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In civil cases. But the government isn't filing a civil case now are they, they're filing for criminal copyright infringement, which doesn't have secondary infringement.
The DoJ is trying to mix and match pieces of the law until they get the right 'mix' that makes their actions, and charges legal, but the law doesn't work that way. If you're filing for criminal charges, then you use the laws and rules related to criminal crimes. If you're filing for civil charges, then you use the laws and rules related to civil crimes.
Now if you'd like, feel free to point out where in criminal copyright infringement law there is text related to secondary infringement.
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Again, the DOJ, and you, are mix and matching laws, in attempting to apply civil copyright infringement laws, which includes secondary infringement, to a criminal copyright infringement case, which doesn't. It's either one or the other, you do not get to have it both ways.
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This is wrong. You can't just take any random civil infringement and say because two people were engaged in it together, it's suddenly criminal conspiracy.
If two people agree to jaywalk to cross a street, it doesn't become a criminal conspiracy. Under your theory, almost every big internet company has nearly all of its top execs facing similar criminal charges. Facebook, YouTube, Dropbox execs could all go to jail for decades under this theory.
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Yeah. Beautiful, ain't it?
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It isn't a theory. Top execs at internet companies could absolutely be investigated, and if it were found they colluding to profit via copyright infringement, they could be criminally charged.
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"It isn't a theory. Top execs at internet companies could absolutely be investigated, and if it were found they colluding to profit via copyright infringement, they could be criminally charged."
Criminal prosecution in the United States so-called "justice" system is based far more on who you are --and especially who you know-- than on what you do. It's extremely rare for executives at mega-corporations to ever face criminal charges for anything, even when their companies flagrantly break the law (and in the example of the Wall St. banks, even when the damage done to society as a result of their law-breaking was colossal).
Napster was by design and intent far more infringing than MegaUpload ever was. But Napster had some big names and big money behind it, which served to shield its people from the possibility of criminal prosecution. Like it or not, that's how the system works.
And anyway, whether something is technically illegal or not makes little difference when you arouse the wrath of a well-connected mega-corporation or industry. We've seen Bittorrent site owners charged with criminal offenses ranging from everything from counterfeiting to fraud, ostensibly because these crimes carried much more severe penalties than copyright infringement. And it's a tradition here in the US for prosecutors, especially federal prosecutors, to pile on so many bogus charges carrying lengthy prison sentences that most innocent people who have neither the money to provide a proper defense nor the desire to play Russian Roulette simply accept whatever plea deal prosecutors put to them.
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Yes, if they were colluding to profit via copyright infringement *they did*. But under your ridiculous theory, if they were colluding to build a business in which *any* of their profits came from some of their *users* engaging in copyright infringement, they're guilty of a felony.
And under that theory, any maker of a VCR is a criminal. It would not just wipe out the Betamax ruling, but magically turn it into a criminal conspiracy.
That's insane.
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Seems like stockholders should be wary of investing in such an enterprise.
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I would say it's insane to charge that business for the alleged crimes of those who use that business' services. Guilt by association?
If that business is doing something which is illegal, charge them for it. Otherwise, you're harassing legal activities for no reason, because you can. Or, because you're too lazy or cheap to go after those who are actually offenders.
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Or the automotive industry(countless vehicle related crimes)?
Or the shipping industry(plenty of illegal stuff gets shipped every day)?
Or the storage rental industry(plenty of illegal stuff stored I'm sure)?
Or the VCR/MP3/Computer industry(all sorts of crimes take place using electronics)?
MU no more 'built a business model based on illegal activity' than the industries I listed above did. Just because some of the users of a product/service can use it for illegal actions, it does not automatically make that entire product/service illegal, and in fact that is how it is treated in pretty much every industry except internet/copyright related stuff, which for whatever reason is treated drastically different.
You wouldn't blame Ford for someone committing a hit-and-run, you wouldn't blame Smith&Wesson for someone using one of their guns to rob someone, so blaming someone for offering a digital storage locker when one of their users uses it for copyright infringement is exposing a glaring double standard.
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Oh no? The legal principles of responsibility have little in common with the realities of our litigation-based economy. Case in point:
http://www.washingtonpost.com/wp-dyn/articles/A8763-2004Sep9.html
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What is even more insane is building a business that relies om making something people can do without the companies assistance illegal, just so that they have to pay a company to do it for them.
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In your world, there is no VCRs, no iTunes, no Apple, no Google, no Facebook, no YouTube, no iPod, no iPhone, no Android, no Yelp, no Microsoft, no Yahoo, no Twitter, no AOL.... and on and on and on.
All of those created offerings that included substantial non-infringing uses... but also some infringing uses. And according to you, they're all criminal.
Seems like stockholders should be wary of investing in such an enterprise.
Yeah, ok.
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hmmm, just about all of those companies self-police themselves... except the company that's going to be investigated.
Once again, stockholders beware.
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Actually MegaUpload self-policed as well; often above and beyond what those other companies have done or do today.
You can about that maybe you were wrong. It's OK.
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ROTFLMAO
"In your world, there is no VCRs"
VCRs were designed with piracy in mind?
"no iTunes, no ipod, no iphone, no Apple"
Apple was incorporated with piracy in mind?
"No Facebook"
Facebook was incorporated with piracy in mind?
"no Yelp"
Yelp was incorporated with piracy in mind?
"no Microsoft"
Microsoft was incorporated with piracy in mind?
"no Twitter"
Twitter was incorporated with piracy in mind?
"no AOL"
AOL was incorporated with piracy in mind?
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According to the MPAA? Yes.
In the early 1980s US film companies fought to suppress the VCR in the consumer market, citing concerns about copyright violations. In Congressional hearings Motion Picture Association of America head Jack Valenti decried the "savagery and the ravages of this machine" and likened its effect on the film industry and the American public to the Boston strangler:
'I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.'
—Hearings before the Subcommittee on Courts, Civil Liberties and the Administration of Justice of the Committee of the Judiciary, House of Representatives, Ninety-seventh Congress, Second Session on H.R. 4783, H.R. 4794 H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705, Serial No 97, Part I, Home Recording of Copyrighted Works, April 12, 1982. US Government Printing Office.[18]
In the case Sony Corp. of America v. Universal City Studios, Inc., the Supreme Court of the United States ruled that the device was allowable for private use. Subsequently the film companies found that making and selling video recordings of their productions had become a major income source.
Apple was incorporated with piracy in mind?
Not so much Apple, but MP3 players, of which several of Apple's devices incorporate or are? Once again, according to the RIAA, yes.
The Recording Industry Association of America (RIAA) filed a lawsuit in late 1998 against Diamond Multimedia for its Rio players,[19][35] alleging that the device encouraged copying music illegally. But Diamond won a legal victory on the shoulders of the Sony Corp. v. Universal City Studios case and DAPs were legally ruled as electronic devices.
I'm not sure about the other entries, but if I had to guess, as they can be used for piracy, and that's often all it takes to be accused of facilitating or encouraging piracy, that was probably the reason for including those.
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I know you're being a jackass, but this is actually a good way to demonstrate the idiocy of your position.
Yes, your foot has many legal uses, and some illegal ones. The fact that you might kick anyone in the balls does not make your foot illegal. But if you do choose to batter someone with your foot, then at that point you would have broken the law and you could be arrested, tried and sentenced.
But, most people have a modicum of self-control and don't kick others in the balls. And we don't outlaw feet because there are some idiots who abuse feet. Nor do we imprison the maker of steel-toed boots for making you kicking someone in the balls more painful. Instead, we PROPERLY put the liability on you, the criminal, who attacks someone.
So, why don't you allow that to happen for copyright?
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Also gotta love how often physical harm is conflated with digital 'harm' by you lot, as though the two were even remotely similar.
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Charming.
However, the foot will be exonerated. The person using the foot will, quite rightly, be charged with assault. See the difference?
No, I didn't think you would.
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That's the complete opposite of Islamic Sharia law, which is closer to the American concept of asset forfeiture: the person's foot would be charged with the crime and forfeited, while the person would be exonerated and set free (albeit hopping on one leg)
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That's insane.
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Sued? You'll have to come up with a citation for that.
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You don't know how to use a web browser to search the web? Gee, lazy as well as ignorant.
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Had 'infringing' tools such as Napster, MegaUpload, and Bittorrent never been born, we would almost certainly not have NetFlix and Spotify today. The multi-billion dollar digital media marketplace we now enjoy, which continues to grow and prosper, would never have left the starting gate without the painful spurring from the heels of these digital outlaws.
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oh, and-
"Had 'infringing' tools such as Napster, MegaUpload, and Bittorrent never been born, we would almost certainly not have NetFlix and Spotify today."
is probably one of the most myopic, stupid things I've ever 'read' here.
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My understanding is that if the material uploaded was actually uploaded by someone who did have a right to it being accessible online for their private use, from say purchasing online for use on multiple devices, then their link to the material would still be valid and not removed. However another person uploading that same digital material would not have that right and therefore the links would be removed.
These two concepts become intertwined when you look at information about how the Mega system handles storage. Apparently material uploaded from different sources but matching digitally are only stored once, the duplicates being removed. Therefore it's possible that the material available to the legitimate licensed uploader could actually be the material that was uploaded by the illegal uploader. This however shouldn't alter the rights of the legitimate uploader.
Where does all this go?
Well if there's this backdoor for the copyright holder's to show them infringing material but they do nothing about it then surely they are knowingly allowing for the infringing to occur. Would this be to entrap as many infringers as possible, extend the damages incurred, or maybe they or the company(s) working on their behalf are just ignorant or could care less.
And by asking Mega to allow backdoor access to the Mega Upload system essentially Mega are being informed that there will potentially be infringing material uploaded to the site. This is similar to gaining access to mail at the US Postal service to be checked for contraband by say sniffer dogs.
And we don't see the US Postal service being accused of conspiracy to commit copyright infringement, software piracy, money laundering or fraud do we?
One has to wonder how much copyright infringing material traversed the US Postal service in its prime without being noticed?
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This's basic Unix (at least) filesystem behaviour. Type "man ln" on a Linux box. Just increment the link count every time you need to store this, then decrement when any owner releases it. We didn't always have 128GB storage in something we can hang around our necks.
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Yes, and there it fails.
Because at most they "facilitated" infringement, but in that case, they would need to go against a user of MegaUpload who uploaded works for commercial gain.
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companys employees,
but,
they are us companys,
look at hsbc bank ,
helping crinimals hide billions and people avoid paying millions in tax,
its 1000,s of times more significant than
the so called damage from people uploading movies to
megAupload.
Why should a non us citizen be subject to usa law ,
in regard to civil infringement .
OF course when tpp goes thru
god knows what penaltys there,ll be worldwide, for uploading
a few music cd,s to a file sharing website.
The american justice system is unbalanced in favour of the doj and prosecuters ,
most people will plea bargain
or give evidence against someone if they are threatened with 10 years in prison for a minor crime.
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Are you serious? From the DOJ press release you linked to: "He was sentenced to a year and a day in federal prison for conspiring to commit felony copyright infringement." The crime he pled guilty to is found in 18 USC 371. He pled guilty to willfully participating in the unlawful plan with the intent to further its objective. The superseding indictment includes many instances of direct criminal infringement by the members of the conspiracy--that's the unlawful plan. Why do you continue to pretend like these allegations don't exist? It doesn't help your credibility. Seriously, your continued denialism is delusional at this point. Though, the fact that you won't even discuss the specifics makes it just seem dishonest. Either way, it's not good.
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This is as stupid as felony jaywalking, or felony spitting on the sidewalk.
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You're a complete fucking moron, aren't you?
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Says the moron who equates stealing with copyright infringement. Hint: if I steal something from you, you no longer have it.
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This seems similar to the DOJ's tactics of Nazi-hunting. Since there are no more legitimate Nazis left to hunt, the Office of Special Investigations, the DOJ's dedicated Nazi-hunting unit, should have been disbanded. But instead, they go after teenage conscripts (or like John Demjanjuk, captured P.O.W.'s) whose only crime, seven decades ago, was having the misfortune to be assigned as prison guards.
These kind of prosecutions are not "justice" -- they're malicious vengeance, completely misplaced. Putting a random person's head on a pike just because they can.
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There is no justice from a bully
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Confused
Did he at one time or another do any work here on American soil? No??
Did he specifically prepare his work for the United States? No??
Then how can the American Justice Department (a term I use VERY loosely) claim any right to prosecute in the first place?!
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The DOJ's case has been a joke from the get-go, from seizing the servers, servers they claim were full of evidence, but then allowing them to be destroyed, illegally taking evidence out of the country, lying to the police in NZ and leading to a SWAT-style assault and so on, but by getting one of the members of the 'conspiracy'(and seriously, the fact that they call it that never stops being funny) to offer 'information', they can use that and try and nail Dotcom with it, despite the fact that a random drunkard off the streets would have more credibility than him with regards to the information he offered for the plea deal.
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Civil infringement
Sorry, that's wrong. DOWNLOADS can't be infringing copyright. Because copyright is about PUBLISHING. Unless he uploaded works to which he has no rights of publishing, he did not infringe copyright.
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Re: Civil infringement
No, that's wrong. Copyright law (in the US, at least) includes a number of separate rights, and one of those is "reproduction." Downloading a file that you're not authorized to download *can* be an unauthorized reproduction, and thus infringing.
Uploading can also be infringement, of the "distribution" right.
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Railroad Killer rerun?
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USA is trying to out-Nazi the Nazis.
This story, however, is mere titillating Hollywood gossip compared to the other !@#$ that's going on out there. Cf. the US (Obama and the Neocons; and how wierd it feels to write that) is fomenting another proxy war, this time against Putin's Russia after backing a coup against the elected gov't of Ukraine, in collusion with neo-Nazi stormtroopers, the IMF, and their beholden PR arm the New York Times (see consortiumnews.com).
This poor guy got off lightly. He'll get to see his kid again in only a year. Let's hope the world isn't entirely in flames by then.
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Re: USA is trying to out-Nazi the Nazis.
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