Court Doesn't Buy DOJ's Argument For Why Megaupload User Can't Sue To Get His Data Back

from the another-failure dept

Just as the Justice Department is celebrating its "success" in the Megaupload case, a court was rejecting one of the DOJ's more ridiculous arguments in an offshoot case, involving Megaupload user Kyle Goodwin, who just wants his data back, but can't get it because the DOJ shot first and doesn't want to answer any questions later in court. The DOJ has been trying to deny Goodwin his day in court against them, attempting to say that Goodwin should sue Megaupload itself or the hosting company Carpathia, rather than the US government, who actually took down the site.

The court, however, isn't buying it, and has said that a full hearing will be held. This doesn't necessarily mean that Goodwin will win in the end, but it's definitely a step in the right direction -- and represents yet another failure to add to the long list of failures in the DOJ's supposed "success" story.

Filed Under: access, censorship, data, doj, justice department, kyle goodwin
Companies: megaupload

Justice Department Calls Megaupload Case A Success; Hands Out Cash To Cops To Do More Bogus Takedowns

from the shameful dept

Back in 2010, we wrote about Attorney General Eric Holder talking up how excited he was to create a special "IP Task Force" within the Justice Department. It was, effectively, an admission that he was happy to play Hollywood's business model protection officer on the public dime. Since then, of course, the DOJ has been involved in a fairly stunning set of disastrous attempts to "enforce" IP law -- including seizing and censoring two separate sites for over a year without real due process or evidence. Then there's the questionable attempt to deport a UK student for creating a web forum.

And, of course, the master of all screwups, the Megaupload case. Given all the info that's been released so far, you'd think that the DOJ would have a slam dunk against Megaupload -- but instead, the case has been a complete disaster for the DOJ, as every week we seem to hear about another error made in going after the company. Given how poorly the DOJ has come out in that case so far, you would think that Attorney General Holder wouldn't be highlighting it as a key example of a "success story" for his role as Hollywood's favorite inside man.

And yet... in a speech in which he talks about handing out cash to local police forces to become local versions of Hollywood's private police force, he uses Megaupload as a shining example of the success of this "Intellectual Property Theft Enforcement Program." Of course, you'd think that the top lawyer in the country would know better than to falsely call infringement theft, but apparently Holder's very good at taking Hollywood's talking points without bothering to understand the actual law. Otherwise, he wouldn't have had to "give up" in the Rojadirecta and Dajaz1 cases, after it became abundantly clear that the DOJ was about to lose big time, and could face serious problems for its actions. Instead... he just cheers on the various abuses and failings in the Megaupload case as if they were successful:

In this year alone, we have prosecuted a number of significant IP cases. For example, in January – in one of the largest criminal copyright cases in U.S. history – the Department indicted two corporations and seven individuals with operating an international organized criminal enterprise responsible for massive worldwide online piracy of numerous types of copyrighted works, through Megaupload.com and other related sites.

Indicted, yes. But pretty much everything after the indictment has been an unmitigated disaster. There was the illegal raid on Kim Dotcom's home, which used the wrong documentation. There was the illegal taking of evidence out of New Zealand without permission. There was the illegally obtained intelligence info on Dotcom's location. There was the ridiculous SWAT-ification of the raid team, which New Zealand officials now admit was both overkill and a mistake. Basically, pretty much every action by the DOJ in the case has been a disaster. And this is what Holder is cheering on as he hands out money for local cops to do more of the same? Really?

Filed Under: eric holder, ip enforcement, justice department, law enforcement, takedowns
Companies: megaupload

Megaupload Farce Stirring Up Backlash Against Copyright Overreach

from the too-much-to-hope? dept

Just when you think the Megaupload farce can't get any more ridiculous, it does. Following revelations that New Zealand's Government Communications Security Bureau illegally intercepted communications in the Megaupload case and provided those details to law enforcement authorities, the country's Prime Minister has been forced to apologize personally to Kim Dotcom: "Of course I apologize to Mr Dotcom, and I apologize to New Zealanders." From his position of increasing strength as more and more missteps by the New Zealand authorities come to light, Dotcom graciously accepted those apologies.

But the political fall-out is continuing. An article in the New Zealand Herald does a good job rounding up the country's deepening frustration over the way the New Zealand government carried out this botched operation, and at the behest of others:

If provincial newspaper editorials are anything to go by, there is growing anger about the authorities' handling of Kim Dotcom. The Waikato Times' editorial entitled, NZ: 51st state of the US, is particularly worth reading. It says that the announcement of the illegal spying has 'heightened suspicions that this country's relationship with the United States has become one of servility rather than friendship'. The editorial's conclusion is worth quoting at length: 'Dotcom is wanted in the US to face nothing more threatening than breaches of copyright laws.

That last point is new, and important: it means that people outside the world of digital activism are beginning to realize that the underlying reason this series of extraordinary blunders and abuses has come about is because enforcing copyright -- and making an example of those alleged to have infringed on copyright -- has been placed above concerns about an individual's rights, or even the law.

Some are rightly beginning to question whether the price being paid by society in terms of loss of fundamental rights is simply too high for the very limited gains by the media companies as a result of these actions. In a new post on his blog, James Firth explores this theme, and makes a bold claim:

This surely is a watershed moment when even the most ardent securocrats wake up and realise such abuses help no-one. Without public trust in the security apparatus we can never feel free, even if we are.

It would certainly be good news if that were the case, but it remains to be seen how many do in fact wake up -- and whether the grip of the copyright industries on both the legislative and executive branches around the world is loosened as a result.

Another question is whether in the wake of the public outrage over the New Zealand government's supine behavior in the Megaupload case, the latter might start asserting its sovereignty a little more by standing up to the US in the current TPP negotiations, and refusing to submit over things like software patents. It now looks increasingly likely that they will be introduced into New Zealand, and the suspicion has to be that this is partly as a result of continuing US pressure. Saying "no" to software patents would allow the New Zealand government to point to an area where it has defended the country's interests despite demands from elsewhere.

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Filed Under: backlash, copyright, kim dotcom, new zealand
Companies: megaupload

NZ Prime Minister Admits That The Government Illegally Wiretapped Megaupload Employees

from the yet-another-mishap dept

Since the January raid of Megaupload, not a month seems to go by in which another massive error in procedures isn't revealed concerning how US and New Zealand law enforcement handled the whole process. And each time, the mistakes seem to get bigger and bigger. They had the wrong warrants. They mishandled evidence. They mishandled the extradition request. And today comes the big news. New Zealand's Prime Minister, John Key, revealed that the Government Communications Security Bureau (GCSB), the equivalent of the NSA in New Zealand, illegally intercepted communications regarding individuals in the Megaupload case and provided those details to law enforcement. Like the NSA, the GCSB is in charge of monitoring electric communications, but is not allowed to use those tools domestically, only on foreign communications. Key has now ordered an investigation.

Mr Key says the Crown has filed a memorandum in the High Court in the Megaupload case advising the Court and affected parties that the GCSB had acted unlawfully while assisting the Police to locate certain individuals subject to arrest warrants issued in the case. The Bureau had acquired communications in some instances without statutory authority.

After being informed about the matter by the Director of the GCSB on September 17, the Prime Minister referred the Bureau’s actions to the Inspector-General, Hon Paul Neazor. The Inspector-General is an independent statutory officer with the power to enquire into any matter related to a government intelligence agency’s compliance with the law.

Once again, like pretty much all of these "mishaps," this seems to suggest a rather cavalier attitude towards actually following proper procedures under the law to go after Dotcom and Megaupload. Throughout this whole process, it really does appear that law enforcement, under pressure from Hollywood, believed that Dotcom was such a criminal mastermind that they could skirt the law in all sorts of ways to try to shut him down. And each time these mishaps come to light, it just raises more and more questions about whether or not law enforcement really had any legitimate evidence or reasons to do what they did.

Filed Under: gcsb, john key, kim dotcom, new zealand, spying, surveillance, wiretapping
Companies: megaupload

Copyright Holders Still Sending DMCA Takedowns On Content That's Been Gone For Months

from the dmca-failures dept

We keep seeing various DMCA takedown failures, and the folks over at TorrentFreak have discovered another common error while going through Google's Copyright Transparency Report and found that big copyright holders are still filing DMCA takedown notices on content hosted on sites like Megaupload and BTJunkie, despite the former being shut down in January and the latter shutting itself down in February.

If you look, you can see a bunch of takedown requests for Megaupload links in the past month. Some of these are by smaller players, whom you might expect to be confused, but there are some big guys as well. In the screenshot above you can see both BPI and the IFPI (on behalf of Sony Music). There are also DMCA requests from Universal Music, EMI, the Publishers Association and others. All for content that clearly doesn't exist and hasn't existed in months. Kinda makes you wonder if they even check this stuff. Considering that all of these copyright holders seem to think that Google and others can just magically "know" when there's infringing content around, it's pretty telling that even they don't seem to know how to tell if content exists, let alone if it's infringing.

Filed Under: content, dmca, takedowns
Companies: bpi, btjunkie, emi, google, ifpi, megaupload, sony music, universal music

New Zealand Court Releases $4.83 Million To Kim Dotcom

from the another-loss-for-the-doj dept

The US government keeps having setback after setback after setback in its legal fight against Kim Dotcom and Megaupload. If the US had its way, all of Dotcom's assets would have been frozen, he would be stuck in jail with no opportunity to be bailed out, and New Zealand would have already rubber stamped extradition papers. But none of that has happened.

The latest is that, against the wishes of the US and the New Zealand governments, the court has granted Dotcom the use of $4.83 million out of the assets that were frozen in order to pay some of his legal expenses (though, not for his US lawyer, Ira Rothken). The order also says that the released funds cannot be used for Dotcom's co-defendants. The ruling, embedded below, is pretty thorough and suggests (yet again) that the US-driven prosecution of Dotcom is mostly focused on trying to railroad him, rather than allow him to mount an adequate defense. He may very well be guilty, but it's pretty shameful that the steps taken by the US and New Zealand governments seem designed to not even give him a chance to properly defend himself. At least the New Zealand court has recognized that's not right, and will allow him access to some funds, with specific limits, so that he can put together his defense.

Mr Dotcom's rights under the NZBORA and the International Covenant on Civil and Political Rights further tip the balance in his favour. The State's contingent interest in the restrained property is of punitive nature and limited to depriving Mr Dotcom of the fruits of his alleged offending. In contrast, Mr Dotcom's access to counsel is supported by his rights to natural justice, to be presumed innocent until proven guilty, and to consult and instruct a lawyer and to have adequate time and facilities to prepare a defence. It is generally assumed that the right to access defence counsel includes the right to counsel of the defendant's choice....

Filed Under: kim dotcom, legal fees, new zealand
Companies: megaupload

New Zealand High Court: FBI Must Release Its Evidence Against Kim Dotcom

from the not-going-well dept

The US's case against Kim Dotcom and Megaupload continues to run into significant problems. While the US Justice Department (with an assist from New Zealand law enforcement) has continued to insist that extraditing Kim Dotcom halfway around the world to the US was a mere formality, and that the evidence against him need not be shown, the courts in New Zealand have taken a rather different view. They refused to rubberstamp the acquisition as the US hoped. Then, the New Zealand High Court stepped in to review the extradition issue, making a final ruling that says that the FBI needs to reveal its evidence and that the extradition request does not comply with the law as currently written.

In other words, a complete and utter failure by the FBI in this effort.

The full ruling (pdf and embedded below) is quite an interesting read, if you've got the time. Basically, the court agrees with the assertion from the US that an extradition hearing isn't meant to try the full case... but, then points out that this doesn't mean you completely ignore the basic rights of the accused. It is still a criminal case, and as such they have certain basic rights that must be observed -- and which the US was trying to deny to Dotcom. The court considers a variety of case law, including some Canadian extradition cases, and even directly notes that some past cases involved "rubber stamp" approvals of extradition (literally using that term). However, more recent cases have pushed back against that and said that the home court need not try all of the evidence, but should at least look at the evidence to see if it is defective.

The court further notes the fundamental unfairness of the argument made by the US and New Zealand: "severely restrict[ing] the ability of [one party] to file relevant evidence would not easily be characterised as 'fair.'"

The bigger question, then, was whether or not the FBI needed to release its evidence to Dotcom, and again, the Court ruled against the US's position. The Court notes that the law enforcement folks rely on obsolete and outdated caselaw to make their argument, and notes that "I do not find this line of authority particularly persuasive" because they really cover different issues, and (of course) the arguments made appear to be stretched from the original intentions. The judge seems to recognize that the FBI and the Crown are making ridiculous arguments, noting that there is "nothing incompatible" with revealing the evidence in New Zealand and then using it in the US case should extradition be granted.

In my view disclosure should be provided by the requesting state. The Act provides the person sought with a right to challenge whether the threshold for extradition has been met before he will be extradited. Consistent with the requirements of... the Bill of Rights Act to a fair hearing, the person sought should be given access to sufficient information to enable him or her to fully participate in that hearing on an equally informed basis. Without access to materials relevant to the extradition hearing phase, the person sought will be significantly constrained in his or her ability to participate in the hearing and the requesting state will have a significant advantage in terms of access to information.

The order lists out what needs to be disclosed, and it's a pretty long list. Basically "all documents" relating to each of the key charges.

Separately, the judge noted that the "Record of Case" document, which the Crown (with the FBI) used to argue for extradition wasn't up to proper legal standards in that it did not provide the necessary info to support extradition.

She also found the "Record of Case", the document which made the argument for extradition, did not currently meet the legal requirements. She said the FBI was under an "obligation of candour" to provide any evidence which could impact on the court's judgment of whether the extradition threshold had been met - and no information had been provided to support FBI claims. The document "did not comply", she said.

Basically, this is the final ruling on this issue. The New Zealand government and the FBI can't appeal it any higher and now have to actually let Dotcom and his lawyers see the evidence against him. What a concept.

Filed Under: discovery, evidence, extradition, fbi, kim dotcom, new zealand
Companies: megaupload

Video Of Dotcom Raid Revealed, As NZ Police Admit It Was 'Over The Top'

from the ya-think? dept

Yesterday we noted that government officials were seeking to suppress video and images from the raid on Kim Dotcom's home. As a bunch of folks have been sending in all day, New Zealand's 3NEWS has revealed some of the footage in a video interspersed with video from the courtroom hearings and a tour they did a few months ago of the room in which Dotcom hid. It's interesting to note that, contrary to some reports of law enforcement having to "break in" to a "safe room," the reality turned out to just be a hidden room which Dotcom left unlocked. But, much more telling is the ridiculous level of force that the government used to arrest someone for copyright infringement -- which even New Zealand law enforcement admitted was "over the top." Other reports have noted that Dotcom's security staff includes a police officer who could have been approached. Police also admitted that the effort was rushed and done with much less planning than they would have liked (which supports the notion floated by some that the timing was designed to happen right after the massive SOPA protests). Oh yeah, you'll notice in the video that two helicopters (and many police vehicles) were used -- but in court it was revealed that NZ law enforcement had said that "a full tactical response was not appropriate."

Perhaps they just wanted to look good on camera for the MPAA folks who were so infatuated with going after Kim Dotcom. Certainly, Americans were on the scene. NZ law enforcement admitted that the FBI came along for the ride...

Filed Under: copyright, kim dotcom, law enforcement, new zealand, over the top, raid
Companies: megaupload

US Has Ignored New Zealand Court Order To Return Data It Seized From Megaupload

from the of-course dept

There are a bunch of moving pieces in the various Megaupload legal proceedings, but if you recall, in the ruling in late June from New Zealand's High Court, it was made clear that the New Zealand government and the US FBI broke the law in sending data from Megaupload's hard drives overseas, and ordered them returned. Megaupload's lawyer, Ira Rothken is out reminding the world that the US has failed to comply with the order to return the data that was illegally taken, and has shown no signs of planning to comply. Apparently, the Justice Department, who is supposed to be enforcing the rule of law, doesn't believe such rule of law applies to its own activities.

Filed Under: data, doj, new zealand
Companies: megaupload

DOJ Argues That Even If Case Against Megaupload Is Dismissed, It Still Can Hold Its Assets

from the well-of-course dept

As the fight over whether or not the US can even charge Megaupload under criminal law continues, the US Justice Department continues to make quite extraordinary claims. If you don't recall, the US filed criminal charges against Megaupload and a bunch of its execs. However, as a US judge noted back in April, under US law it might actually be impossible for the case against Megaupload to proceed, because criminal law requires "serving" the defendant, and the law also says you can only serve companies at their US address. Megaupload is not based in the US and has no US address. The DOJ is trying to tapdance around what the law actually says, but (as Megaupload points out) they can't point to a single real legal citation that supports their position. The DOJ is basically arguing that the law should be what they want it to be... because otherwise the DOJ wouldn't like it very much.

Tim Lee continues his always excellent reporting, by providing some details of the latest court hearings on the matter where the judge definitely seems to recognize that Megaupload may be legally correct:

[Judge O'Grady] noted that the "plain language" of the law required sending notice to the company's address in the United States. "You don't have a location in the United States to mail it to," he said. "It's never had an address" in the United States.

Perhaps even more interesting is the claim by the DOJ that even if the Judge rules against them on this issue, they should still be able to freeze Megaupload's assets, because the cases against the individuals will continue.

Not only that, but the government believes it can continue to freeze Megaupload's assets and paralyze its operations even if the judge grants the motion to dismiss. That's because in the government's view, the assets are the proceeds of criminal activity and the prosecution against founder Kim Dotcom will still be pending. The fact that the assets are in the name of Megaupload rather than its founder is of no consequence, the government claimed.

That's a trickier argument to make, though, not a totally crazy one. It's more or less based on the same controversial theory under which the Justice Department seizes and forfeits things like hip hop blogs because someone might possibly get some infringing music from them. But here it's even more complex, because there is supposed to be a separation between the corporation as an entity and the execs who work there as entities. It's part of the reason why "limited liability" corporations exist. There are, of course, ways to get past that, but the government would need to make that case, and they may have a hard time doing so. Either way, it does appear that they're legitimately worried about this rather massive error on their part in bringing the case.

Perhaps, next time, the DOJ won't rush into highly questionable lawsuits just because the MPAA is upset about a website.

Filed Under: assets, copyright, doj, frozen, jurisdiction, service
Companies: megaupload