New Zealand Supreme Court Says Raid On Dotcom's Home Legal Enough To Get A Pass

from the quasi-legal dept

While a lower court had found that New Zealand police had violated the law in its poorly written warrant to raid Kim Dotcom's rented mansion, the Supreme Court has now decided that it was legal enough. They admit that while the warrant was probably more vague than the law says it should be, that was okay

"While the search warrants did not specify that the offences were against United States law, or that the offences were punishable by two or more years' imprisonment, this did not cause any significant prejudice to the appellants."

Justices John McGrath, William Young, Susan Glazebrook and Terence Arnold agreed that the warrants for the raid were not unreasonably vague and general.

"Undoubtedly they could have been drafted rather more precisely," they said in their written decision.

"We agree with the Court of Appeal that the appellants were reasonably able to understand what the warrants related to and that the police were adequately informed of what they should be looking for.

"Any issues relating to matters such as the way the search of the computers was conducted or the handling of irrelevant material should be addressed through other processes."

Basically, yeah, sure the warrants didn't technically comply, but everyone sorta understood what was going on, so it's okay. That seems like a fairly slippery slope of reasoning for allowing something that was illegal to proceed because people want it to proceed. The Chief Justice, Sian Elias, didn't agree with her colleagues, and was much more clear in the dissent:

"That conclusion is I think based on a mistaken view of what constitutes a miscarriage of justice in this context," she said in her part of the written decision.

"A search warrant properly issued would not have authorised the seizure of irrelevant material, at least not without setting up conditions to ensure secure and expeditious sorting under the supervision of the court.

"Where, as here, a search warrant was overbroad and no protective conditions were imposed, the relevant miscarriage of justice is complete."

Either way, this issue was always a bit of a sideshow. The fight over extradition to the US is the next big issue, followed by the main event (should it get that far) of an actual trial in the US. Of course, at a bigger level, we're now nearly three years since the US government completely shut down this company, and it's still not clear that it had any legal basis to do so.

Filed Under: kim dotcom, new zealand, raid, supreme court
Companies: megaupload

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.

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.

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.

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.

“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.

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.

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 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.

In a footnote, it also points out that Megaupload likely isn't even subject to civil secondary infringement claims, let alone criminal ones:

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.

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).

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.

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.

Filed Under: aiding and abetting, asset forfeiture, civil asset forfeiture, copyright, criminal copyright, kim dotcom, secondary liability, seizure
Companies: megaupload

New Zealand Whistleblower Reveals He Was Told To 'Bury' Unflattering Info About The Gov't Spying On Dotcom

from the incredible dept

The list of incredible screwups concerning the investigation, raid and prosecution of Kim Dotcom in New Zealand is fairly incredible. At nearly every step of the way, we find out more and more about just how monumentally questionable the whole thing was. Frankly, I have no idea if what Dotcom did with Megaupload broke the law, but the indictment against him was filled with really questionable claims, the GCSB (local equivalent of the NSA) illegally spied on Dotcom and then deleted the evidence, the police sought to suppress images of the raid itself, and evidence was mishandled. Oh, and it was eventually revealed that customs officials agreed to share info on Dotcom with the FBI in the US to "buy... brownie points" with the FBI.

And, now a former high-ranking New Zealand Customs lawyer has said that he quit his job after he was ordered to "bury" information that made the New Zealand government look bad. Specifically, this is about that last point above -- the letter concerning the brownie points. Apparently, the New Zealand government didn't want that email to get out, despite it being required to be released under a freedom of information request (in New Zealand it's the Official Information Act). Curtis Gregorash, a lawyer in the Customs department was told directly not to release any such documents:

"Mr Taylor directed me to withhold all information and pass the same direction on to my team."

He said he was subjected to an internal investigation after releasing information about Dotcom sought by the NZ Herald through the Official Information Act. The information released saw Customs staff discuss earning "brownie points" by passing on Dotcom information to the FBI.

"Simpson Grierson [Dotcom's lawyers] had made several Privacy Act requests of the Government, some of which flowed through Customs, and decisions were made from ministerial level with Maurice Williamson directing Customs, 'Don't you dare release anything - nothing at all.'"

Gregorash apparently disobeyed these orders and released the "brownie points" letter -- as required by law -- and then faced an internal investigation, leading to him resigning in protest.

The "brownie points" OIA release to the Herald was the tipping point. "I got dragged over the coals for it. There was an investigation into me. I was cleared. I resigned after that."

He also seems to indicate that other documents that should have been released were withheld as well:

"All sorts of jokes and laughs and cut-downs that were being made by officials to each other were being withheld for [what he considered to be] no reason."

Gregorash had held onto the story for a while, but decided that it needed to be told.

Combined with everything else about this investigation and prosecution, it again makes you wonder what people were thinking. It still really feels like the DOJ and New Zealand officials all simply believed Hollywood's fanciful stories about Dotcom being "Dr. Evil" -- a cartoonish villain so bad that official and legal processes could be thrown out the window just to get him at any cost. Once again, it suggests that Hollywood and the DOJ officials who support it would be much better off actually taking the time to understand the nuances of the copyright debate, rather than their crude "piracy bad" level of understanding that they seem to have of it.

Filed Under: brownie points, copyright, coverup, curtis gregorash, customs, fbi, kim dotcom, new zealand, raid
Companies: megaupload

New Zealand PM Releases Documents... That Don't Actually Discuss GCSB Mass Surveillance

from the wait,-what? dept

So we had just posted New Zealand Prime Minister John Key insulting the Pulitzer Prize-winning journalist Glenn Greenwald, referring to him as a "henchman" and "a loser" for showing up in New Zealand to reveal that, contrary to Key's own claims, the country's GCSB (local equivalent of the NSA) had been engaged in mass surveillance of New Zealand residents. The documents Greenwald revealed showed how the Kiwi government was being pressured by the NSA to pass a law to fully "legalize" the program for mass surveillance of metadata. Further support to Greenwald's claims was provided in an article written by Ed Snowden, discussing just how easy it was to go surfing through the metadata collected on New Zealanders by GCSB.

Over the weekend, Prime Minister Key had said that once Greenwald revealed what he had, he would declassify a set of documents proving that Greenwald was wrong. Well, now Key has, in fact, declassified a set of documents from the GCSB... and they don't actually discuss what Greenwald or Snowden were talking about. Instead, they look like some internal discussions of why GCSB needed a (dangerous) program that would allow GCSB to try to spot and deal with foreign cyberattacks (similar to what the NSA wanted to do in the US, but which banks on Wall St. rejected).

So, basically all that Key has revealed is that GCSB supported an overly broad cyberattack plan that would let the GCSB take it upon itself to deal with cyberattacks -- a plan so insane that even the US has rejected it -- in part because it would massively increase surveillance. So, Key has revealed secretly approved plans to increase GCSB surveillance, while pretending he's debunking increased GCSB surveillance. And, yet, the documents don't even address any of Greenwald and Snowden's actual claims. When asked about that Key appears to have done his standard childish pouting, refusing to answer about specifics:

"There is not, and never has been, mass surveillance of New Zealanders undertaken by the GCSB.

He would not discuss XKEYSCORE, ''we don't discuss the specific programmes the GCSB may, or may not use''.

''But the GCSB does not collect mass metadata on New Zealanders, therefore it is clearly not contributing such data to anything or anyone," Mr Key said.

Frankly, this is a bit of a let down. Given the documents that Greenwald revealed on Monday, there was still the slight possibility that changes had happened along the way and people had rethought a bad plan. So I was wondering if Key might actually reveal something miraculous like that. Instead, it seems like he's trying a sleight of hand trick by declassifying and releasing unrelated documents (that actually reveal a secret surveillance expansion different from the one Greenwald revealed) and hoping no one notices. Interesting strategy. It seems to assume that the New Zealand populace doesn't actually pay attention to any details, which seems like a risky move.

Filed Under: cybersecurity, ed snowden, gcsb, glenn greenwald, john key, kim dotcom, metadata, nsa, surveillance

Snowden & Greenwald Reveal PM John Key Lied About Kiwi Mass Surveillance; Key Hits Back By Calling Greenwald 'A Loser'

from the not-very-convincing dept

Over the weekend, Glenn Greenwald made it clear that he was going to reveal evidence of domestic mass surveillance on New Zealanders by the GCSB (the Kiwi version of the NSA). The plan was to reveal it at a political event organized by Kim Dotcom. Before Greenwald even had the chance, New Zealand Prime Minister John Key tried to preempt the story by claiming that the country had considered such options, but never actually went through with it. He also used the opportunity to toss out random ad hominem insults at Greenwald, because that's always convincing.

"Dotcom's little henchman is wrong," says Mr Key..... "I'm probably not going to jump in front of what information he's got," says Mr Key. "It's up to the henchman to go and deliver that information I suppose, but mark my words, he's wrong. I'm right and I'll prove I'm right."

Except he did try to "jump in front" by revealing that there were plans in place for such a system and in promising to "declassify and release top secret documents" that would prove his side of the story.

This morning, Greenwald delivered on his half of the bargain with a detailed look at how the NSA was relying on New Zealand to change its laws to further legalize GCSB domestic surveillance. Greenwald got a further assist from Ed Snowden himself who wrote about how he regularly had access to New Zealanders' metadata, collected by the GCSB. Snowden's really damning point is that there was a simple "checkbox" if he wanted to turn off such searches:

If you have doubts, which would be quite reasonable, given what the last year showed us about the dangers of taking government officials at their word, I invite you to confirm this for yourself. Actual pictures and classified documentation of XKEYSCORE are available online now, and their authenticity is not contested by any government. Within them you’ll find that the XKEYSCORE system offers, but does not require for use, something called a “Five Eyes Defeat,” the Five Eyes being the U.S., U.K., Canada, Australia, and yes, New Zealand.

This might seem like a small detail, but it’s very important. The Five Eyes Defeat is an optional filter,  a single checkbox. It allows me, the analyst, to prevent search results from being returned on those countries from a particular search. Ask yourself: why do analysts have a checkbox on a top secret system that hides the results of mass surveillance in New Zealand if there is no mass surveillance in New Zealand?

Greenwald's piece further details how the NSA was pushing New Zealand to pass a new law last year to finalize the full legalization of this kind of surveillance, noting that the legal change was considered the final blockade on such a program. As we noted last year, while most of the world was passing laws to cut back on domestic surveillance, New Zealand was actually passing a law to expand those powers. While that bill was being debated, New Zealand Prime Minister John Key insisted that it was not enabling broad new domestic surveillance options, even though it was pretty clear from the text of the law.

At the time Key vehemently denied that it was legalizing domestic mass surveillance, responding to such claims by arguing "none of that is true." And yet, Greenwald highlights documents that show that the domestic surveillance program was entirely in place, just waiting for that last legal hurdle to be knocked down:

But in high-level discussions between the Key government and the NSA, the new law was clearly viewed as the crucial means to empower the GCSB to engage in metadata surveillance. On more than one occasion, the NSA noted internally that Project Speargun, in the process of being implemented, could not and would not be completed until the new law was enacted. The NSA apparently viewed that new law as providing exactly the powers that Key repeatedly and publicly denied it would vest.

And, of course, Key did this with pure and blatant FUD. At the time, he went on and on about immediate threats to the nation:

The Prime Minister says the country faces genuine security threats, while his opponents reckon he's being manipulative.

[....] John Key says he has received some briefings from intelligence agencies that have deeply concerned him. "I think it would cut dead some of the most fancible claims I've heard lately from those who oppose this Bill."

Except there doesn't appear to be any evidence to support that. Just evidence that the NSA really, really wanted this bill to pass. As Greenwald highlights with newly revealed Snowden documents:

Critically, the NSA documents note in more than one place that completion of Speargun was impeded by one obstacle: The need to enact a new spying law that would allow the GCSB, for the first time, to spy on its own citizens as well as legal residents of the country. As one NSA planning document put it, completion of Speargun was “awaiting new GCSB Act expected July 2013.”

So far, Key's response is to ratchet up the insults. Beyond calling Pulitzer Prize-winning Greenwald a "henchman" a bunch of times, Key also called Greenwald "a loser," and tried to spin it all as a plot by Kim Dotcom:

"People got really wound up about me calling him Dotcom's little henchman. I would have a modicum of respect for the guy if he had the guts to turn up here six months before the election, or six months after. If this loser is going to come to town and try and tell me, five days before an election, staying at the Dotcom mansion with all the Dotcom people and being paid by Dotcom, that he's doing anything other than Dotcom's bidding - please don't insult me with that."

Except, of course, Greenwald has long explained that Dotcom agreed to pay Greenwald's usual speaking fee to charity (though, he did pay for Greenwald's flight to New Zealand). But, honestly, anyone following Glenn Greenwald for more than about five minutes would know that the guy is not exactly the kind of person who takes orders from anyone, no matter who's paying for what.

Filed Under: ed snowden, gcsb, glenn greenwald, insults, john key, kim dotcom, metadata, surveillance, truth

Record Labels Issue Takedown To Take Kim Dotcom's Album Down From His Own Site

from the just-another-accident dept

We've heard some folks claim that all these bogus takedown notices we write about are just "anomalies" rather than a pattern of abuse of the law for the purpose of censorship. And yet, there are more and more examples every day. The latest one is particularly bizarre. IFPI (the international version of the RIAA) has apparently been issuing a series of bogus takedown notices to get Kim Dotcom's album "Good Times" taken down off of his own site, Mega. That's... quite incredible. This does not appear to be a strange attempt to hide Dotcom's music, but it looks to just be pure sloppiness on the part of the IFPI issuing misguided takedowns. That is, the IFPI takedown notice lists a totally different song (and it turns out this is the second time this has happened to Dotcom's album in the past month). As short-sighted as the IFPI is, it would take an other wordly level of stupidity to directly target Dotcom's music with a bogus takedown. Even the IFPI must know that that would backfire badly. The story that it's an "accident" makes much more sense.

Dotcom filed a counternotice and the album was back up after about a day of being down. However, the real issue here is just how common this sort of thing is. And it comes from the same folks who like to (1) insist that it's "easy" to tell infringing works from non-infringing works and (2) demand that entire sites be blocked based just on their say-so that those sites are "illegal." Of course, Dotcom has some experience on that front, seeing as his own website, Megaupload, was shut down nearly three years ago, despite no adversarial hearing in a court of law on whether or not it was legal.

Filed Under: kim dotcom, takedown
Companies: ifpi, mega

Italy's Public Prosecutor 'Seizes' Giant Webmail Provider And Cloud Storage Provider, Because Copyright

from the such-is-the-internet dept

We've been highlighting how Italy's public prosecutor has suddenly decided that he gets to be the judge, jury and executioner of any websites he deems to be engaged in copyright infringement. Back in March he ordered dozens of websites to be censored based entirely on his say so. And now he's back with another big list, except this time it includes two very big names: Russian webmail/social networking giant mail.ru and Kim Dotcom's cloud storage provider Mega.nz. No matter what you might think of Kim Dotcom and Megaupload, Mega.nz was clearly set up to be quite different from Megaupload -- and the company is known for being quite responsive to takedown requests.

As for mail.ru, it's owned by Russian oligarch Alisher Usmanov, who (not surprisingly) is a pal of Vladimir Putin. The company put out a statement in which it says it was not informed about any of this and only found out once its users in Italy started complaining. The company is not happy about the situation. "[Eyemoon Pictures] made no attempt to resolve the situation pretrial.... No notification of illegal content or requirements to remove copies of [Eyemoon's] films has been addressed to Mail.Ru Group from law enforcement agencies and Italy."

Fulvio Sarzana, an Italian lawyer who follows these things (and first alerted us to the news) is claiming that these sites have been "seized" by the Italian government. In this context, Sarzana explained via email, the government technically is "seizing" the site, but since they have no actual ability to do so, they order ISPs to block access to them.

The decision came after an Italian film distributor complained that two movies -- that have not yet been released in Italy -- could be found on these sites. But, they could just as easily discover that someone had uploaded such films to YouTube or Dropbox or Amazon's S3 or Gmail. Would the public prosecutor order all of those sites completely blocked with no adversarial hearing whatsoever? If prosecutors in Italy truly believe that these entire sites should be "seized" or blocked in Italy, why not take them to court and hold a trial? Why jump immediately to a complete shutdown of sites used by millions for perfectly legitimate activity, just because someone was able to find two infringing files? The chilling effects in Italy from this kind of activity should be massive. It would appear to make it absolutely impossible to build any kind of internet company that allows any form of user generated content, because on a whim, the government might seize everything.

Filed Under: blocking, censorship, copyright, isps, italy, kim dotcom, public prosecutor, seized, websites
Companies: mail.ru, mega.nz

RIAA Files A Near Word For Word Copy Of MPAA Lawsuit Against Megaupload

from the because-that's-not-infringement dept

Earlier this week the MPAA filed a very questionable lawsuit against Megaupload, recognizing that the statute of limitations would run out in a few months. And just days later, the RIAA has followed suit with a nearly identical filing. While they're done by two different law firms, the similarities between the lawsuits are uncanny -- including the numerous defective (to dangerous) attempts to reinterpret copyright way beyond what the law actually says. We already covered why most of these theories are defective, but let's look at some similarities between the filings. I mean, honestly, if the RIAA and MPAA weren't so close, and if it were possible to claim copyright on legal filings (as some do assert), you'd think that the MPAA attorneys might have a claim on the RIAA's attorneys for copying their work. One wonders how much the RIAA's lawyers charged to basically rearranged some words in the MPAA's filing.

Let's start at the beginning. Here's how the MPAA describes what Megaupload does:

Megaupload amassed the millions of popular content files that it hosted on its servers and offered to the public for download by openly encouraging and paying users to upload these files. Any Internet user who went to the Megaupload website could upload a computer file, whether or not the user registered as a member. When the upload was completed, Megaupload reproduced the file on at least one computer server it controlled and provided the user with a Uniform Resource Locator ("URL")"link" beginning with "megaupload.com." The uploader could then propagate the link broadly over the Internet, so that anyone interested in downloading or otherwise accessing a copy ofthe file could easily find it on Megaupload's servers.

Any user who had the URL link could access and download the associated content from Megaupload's servers. By "clicking" the URL link (or copying it into any web browser), the user was taken to a "download page" on the Megaupload website that allowed the user to download a copy of the file from a computer server controlled by defendants.

And the RIAA's version:

Beginning in late 2005 and continuing at least to January 2012 when Defendants were indicted, Megaupload amassed the millions of popular content files that it hosted on its servers and offered to the public for download by openly encouraging users to upload these files. Until mid-2011, Megaupload went so far as to actually pay its users to do this. Any Internet users who went to the Megaupload website could upload content files, regardless of whether the users registered as members. Upon completion of the uploads, Megaupload reproduced each file on at least one computer server it controlled and provided the users with a Uniform Resource Locator ("URL") "link" beginning with "megaupload.com" for each uploaded file. The uploading users could then propagate the links broadly over the Internet, so that anyone interested in downloading or otherwise accessing copies of the files could easily find them on Megaupload’s servers.

Users in possession of the Megaupload URL links could access and download the associated content from Megaupload's servers. By "clicking" the URL links (or copying them into any web browser), users were taken to a "download page" on the Megaupload website that allowed users to download the content, including Plaintiffs’ recorded music, from computer servers controlled by Defendants.

Yeah. That's pretty damn similar, including numerous identical phrases. Someone's copying something. Okay, how about the lack of a search (which, as we noted previously, is ridiculous, since Napster got in trouble for having a search, and now everyone's saying that not having a search is just as damning). Here's the MPAA:

To conceal the scope of infringennent occurring on the Megaupload website, defendants did not provide users with a searchable index of files available for download from the Megaupload website (although defendants themselves had access to such an index). Instead, defendants relied on numerous third party "linking" sites to host, organize, and promote URL links to Megaupload-hosted infringing content, including plaintiffs' copyrighted works. Such linking sites made infringing content broadly and easily accessible to users by maintaining an index of links to content files organized by category and/or alphabetically by titles of the copyrighted work; some such linking sites also offered search boxes where users could enter queries quickly to find the content they wanted. Many of these linking sites were blatant pirate sites, hosting thousands of links to infringing material. Any visitor could quickly see the widespread availability on many linking sites of links to infringing content on Megaupload. Defendants knew of this open infringement on pirate linking sites and closely tracked the traffic from those sites to Megaupload. Furthermore, defendants provided financial incentives for premium users to post links to these sites through the Uploader Rewards program.

Okay, and the RIAA version:

To conceal the scope of infringement occurring on the Megaupload website, Defendants did not provide users with a searchable index of files available for download from the site (although Defendants themselves had access to such an index). Instead, Defendants relied on numerous third party "linking" sites to host, organize, and promote URL links to Megaupload-hosted infringing content, including Plaintiffs' copyrighted works. Such linking sites made infringing content broadly and easily accessible to users by maintaining an index of links to content files organized by category and/or alphabetically by titles of the copyrighted work; some such linking sites also offered search boxes where users could enter queries quickly to find the content that they sought. Many of these linking sites were blatant pirate sites, hosting thousands of links to infringing material. Several of these linking sites exclusively offered Megaupload links. Any visitor could quickly see the widespread availability on many linking sites of links to infringing content on Megaupload. Defendants knew of this open infringement on pirate linking sites and closely tracked the traffic from those sites to Megaupload. Defendants also knowingly interacted with users of linking sites and have visited such sites themselves. Defendants also provided financial incentives for premium users to post links to these sites through the Uploader Rewards program.

Right. So those two paragraphs are identical, except the RIAA adds in two extra sentences about the linking sites. It goes on and on like this, with both filings clearly working off of either each other or the DOJ indictment, which they're copy/pasting into their own filing and fussing with a word or two here or there. Here's just one more example. Both filings claim that Megaupload can't be considered a "cloud storage" site because it would delete unpopular files. Here's the MPAA's version of this:

Contrary to some of defendants' public assertions, Megaupload was not designed to be a private data storage provider. Users without premium subscriptions were restricted not only in their downloading capabilities, but also in their ability to store files on the site. Any content they uploaded would be deleted if it was not also downloaded within a certain period of time -- after 21 days in the case of unregistered, anonymous users and after 90 days in the case of registered users who were not premium subscribers. Only premium subscribers (estimated to be 1% of users) could use Megaupload for long-term file storage.

And the RIAA's nearly identical text:

Megaupload was in no respect designed to be a private data storage provider. Users without premium subscriptions were restricted not only in their downloading capabilities, but also in their ability to store files on the site. Any content that users uploaded would be deleted if it was not also downloaded within a certain period of time--after 21 days in the case of unregistered, anonymous users, and after 90 days in the case of registered users who were not premium subscribers. Only premium subscribers (estimated to be one percent of users) could use Megaupload for long-term file storage.

Of course, Kim Dotcom has now refuted this claim, saying that content that was unpopular was not deleted from Megaupload.

However, even beyond that, I fail to see how having a service like this that deletes unpopular content suddenly disqualifies it from being a legitimate service. Lots of other legitimate services have similar terms. While it appears to have recently changed this, the popular image sharing site Imgur (which we use at Techdirt) used to have a very similar clause, saying that "images that are not viewed for 6 months may be removed. However, images with pro accounts can only be removed by you." That doesn't mean they were not a legitimate service.

Nor does it mean it's not a "cloud" service. Different cloud services serve different markets, and services like Megaupload (and Imgur) tend to be more focused on the immediate sharing of content (not necessarily infringing content). In fact, if you look back at the origins of Megaupload, it initially resembled services like the old "YouSendIt," which were focused on making it easier for people to move any file from one person to another. That's not encouraging infringement, it's encouraging being able to transport a digital file it's completely neutral to whether or not the content is or is not infringing.

Either way, the RIAA's lawsuit is a near carbon copy of the MPAA's, and is just as faulty in its reasoning. It's nothing more than a blatant pile on in the attempt to twist copyright laws to their liking.

Filed Under: copyright, kim dotcom, lawsuits
Companies: megaupload, mpaa, riaa

Hollywood Piles On: MPAA Sues Megupload, Even Though They Already Got The Feds To Kill It

from the because-money dept

In news that will come as little surprise to just about anyone, the MPAA has announced that it is piling on and suing Megaupload and Kim Dotcom for copyright infringement, in an action separate from the criminal charges he currently faces. Two years ago, the MPAA had indicated it was likely to do this when it asked for some data to be retained for such a purpose. Also, a few months ago, the DOJ (secretly) got an order from the court (without letting Megaupload know) that allowed it to share information with the MPAA so that the MPAA could file its own civil suit against Megaupload.

So you had to know that a lawsuit was coming -- and it had to come soonish, given the three year statute of limitations on infringement claims. The MPAA's press statement simply parrots the DOJ's highly questionable assertions:

“When Megaupload.com was shut down in 2012 by U.S. law enforcement, it was by all estimates the largest and most active infringing website targeting creative content in the world,” said MPAA global general counsel Steven Fabrizio. “Infringing content on Megaupload.com and its affiliates was available in at least 20 languages, targeting a broad global audience. According to the government’s indictment, the site reported more than $175 million in criminal proceeds and cost U.S. copyright owners more than half a billion dollars.”

The MPAA is using its favorite law firm for these kinds of cases, Jenner & Block. Of course, there's a (pretty strong) argument that if the MPAA was so upset by Megaupload, it should have filed this lawsuit years ago, rather than convincing the DOJ to twist and turn things to pretend that it was a criminal issue. Megaupload has a pretty strong defense to a civil suit in pointing out how the DMCA works and the fact that the company complied with DMCA takedowns. But, now, with Megauploads' assets frozen, Kim Dotcom separately having to fight extradition charges and the criminal charges, it just makes it that much more difficult to also fight the civil case -- which is exactly how the MPAA likes it.

Really, this is perfect for the MPAA. There's no reason at all for this lawsuit. Megaupload is about as dead as can be -- and, in fact, much of the data has been deleted already thanks to the DOJ's actions. But at this late stage of the game, the MPAA can pile on, likely get some sort of court victory and will then crow about how it fights copyright infringement hard. And those lawyers at Jenner & Block will certainly be paid nicely.

Of course, what none of this will do is help the MPAA or the studios actually deliver more good content in a format people want. That's too much work.

Filed Under: civil copyright, copyright, criminal copyright, doj, kim dotcom
Companies: megaupload, mpaa

New Zealand Supreme Court Says DOJ Doesn't Have To Provide Its Evidence In Megaupload Extradition Case

from the blind-justice dept

Despite two earlier rulings that the US Justice Department needed to provide Kim Dotcom and others involved in Megaupload with the actual evidence being used against them for the extradition trial, an appeals court overturned those rulings and now the New Zealand Supreme Court has agreed in rejecting the request. While the chief judge dissented, the majority found that the extradition treaty does not require the country that has filed the charges against the individuals to provide the information and that the New Zealand courts have no real authority to order the US DOJ to provide the evidence. It does seem rather ridiculous that someone can be sent halfway around the world to face criminal charges without first being able to see the evidence against them, but that's apparently the law in New Zealand. They might want to fix that.

Either way, the actual extradition trial was recently pushed back until July (it had been scheduled to start in a few weeks). Seems quite bizarre that they're only just getting to the trial over extradition nearly two and a half years after Megaupload was seized and shut down. The judicial process isn't exactly known for its speed, which is kind of crazy when you realize how quickly (and with such flimsy evidence) DOJ and New Zealand officials acted to arrest Kim Dotcom and his colleagues.

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