Justice Department Continues Handwaving To Avoid Facing Up To Its Questionable Behavior In Taking Down Megaupload

from the quick,-look-over-there! dept

We already wrote about the motions from Megaupload, the MPAA and Kyle Goodwin, concerning Goodwin's attempts to regain access to the backup files he uploaded to Megaupload. However, there is also the Justice Department's own filing, which deserves its own separate post.

As we noted a little over a week ago, Goodwin, represented by the EFF, was using Goodwin's attempt to retrieve his data to also seek to unseal the seizure order that led to Megaupload's servers being taken. The Justice Department clearly does not want that, and you can see it by the way in which it hits back at Goodwin. It insists that Goodwin hasn't done nearly enough to prove that he actually has "property" hosted on those servers:

To date, Mr. Goodwin has failed to make such a showing – he has not shown that he has a cognizable, legal interest in property seized by the government, nor has he shown a deprivation of a property interest based on any government seizure.... The only facts submitted to the Court by Mr. Goodwin regarding his interest in the servers imaged by the government are in a declaration he submitted in support of Non-Party Carpathia Hosting’s Emergency Motion for a Protective Order where he states he used Megaupload’s service.... However, if mere use of the service was sufficient to create a legal ownership interest in servers leased by Megaupload from Carpathia, then there could be hundreds, if not hundreds of thousands, of “owners” of each and every single Carpathia server. Such a result is absurd. Cf. Board of Public Utility Comm’rs v. N.Y. Tel. Co., 271 U.S. 23, 32 (1923) (“Customers pay for the service, not for the property used to render it . . . . By paying bills for service they do not acquire any interest, legal or equitable, in the property used for their convenience[.]”).

Talk about willfully misrepresenting Goodwin's position... Goodwin isn't claiming a property interest because he used the service, but because he uploaded his own content. He's not claiming a property interest in Megaupload, but just in the data he uploaded. Apparently the DOJ is trying out diversion techniques to hide from the real issue.

The DOJ then goes on to state, by footnote, that they believe that even if Goodwin's content was taken down by the government's actions, that's okay because he was probably infringing anyway:

Based on the government’s review of Mr. Goodwin’s website, ohiosportsnet.tv, the list of files uploaded by a Megaupload user using the account name “ohiosportsnet,” and the MD5 hash values of those files, it is not clear that Mr. Goodwin or his company owns the rights to all the data that he (or others using the “ohiosportsnet” account) uploaded to Megaupload. Numerous videos produced by Mr. Goodwin have as their soundtracks recordings of popular copyrighted music. Many videos on his website begin with a statement describing the copyrighted music and including a disclaimer such as “we don’t own the rights.” In addition, the “ohiosportsnet” account at Megaupload had uploaded numerous music files, including music files with MD5 values that matched the hash values of pirated versions of popular music. Even assuming Mr. Goodwin has not contracted his rights to any data uploaded to Megaupload away, the extent and nature of those rights may vary file to file.

Indeed, the nature of the rights may, in fact, vary file to file. And that's true of everything hosted on Megaupload... or any other server online. And yet, the DOJ's own actions were to take down the whole damn thing, ignoring the fact that there was plenty of legitimate and non-infringing content there. Yet now it wants to parse carefully about how each file may have different rights? Really?

Furthermore, as the EFF has pointed out in an interview with Tim Lee at Ars Technica, the DOJ's admission that they specifically looked up Goodwin's Megaupload account raises other serious questions about the DOJ abusing its powers:

But Samuels says it's the government who has some explaining to do. "The government's approach should terrify any user or provider of cloud computer services," Samuels told Ars by e-mail. "The government apparently searched through the data it seized for one purpose, in order to use it against someone who was hurt by its actions but who is plainly not the target of any criminal investigation, much less the one against Megaupload."

Samuels told us that the government's response to Goodwin's petition demonstrates "that if users try to get their property back, the government won't hesitate to comb through it to try to find an argument to use against them."

From there, the DOJ continues its sleight of hand tricks, by claiming that if Goodwin has any issue it's with Carpathia (the hosting company) or Megaupload, since his contracts are limited to them:

Any ownership interest by Mr. Goodwin in that data would be limited by at least two separate agreements: (1) the contract between Carpathia and Megaupload regarding Megaupload’s use of Carpathia servers; and, more specifically, (2) the written agreement between Megaupload and Mr. Goodwin regarding use of Megaupload’s service. Those contracts not only bind Mr. Goodwin’s use of Megaupload’s service and Carpathia’s servers, they also likely limit any property interest he may have in the data stored on Carpathia’s property.

This conveniently ignores that the DOJ ran roughshod over any agreements and just took the whole damn thing down, and then told Carpathia to delete all the evidence. It would seem that those actions have some bearing on the legal proceedings of the guy who'd just like his data back.

Basically, the government, as it's known to do, is playing hardball here. It doesn't want its own actions looked at closely, so it's challenging Goodwin's credibility while insisting that if anything does go forward, it's focused very very narrowly on Goodwin's specific situation, rather than the government's giddy bull-in-a-china-shop routine that created this mess in the first place.

Filed Under: doj, kyle goodwin, takedown
Companies: megaupload

MPAA & Megaupload Want In On Hearing Over Whether Former User Can Get His Data Back

from the jockeying dept

In the ongoing saga of all of the Megaupload servers that the federal government seized and then handed back to hosting company Carpathia, telling them to effectively destroy them (and with it all sorts of important evidence in the Megaupload case), the judge is considering holding a hearing to dig into some of the questions raised by the case -- leading a few motions to be filed. The first, of course is by Kyle Goodwin, represented by the EFF, over his desire to get his data back. The filing also raises significant questions about the entire situation:

... the available record already shows that the government acted (and continues to act) with a callous disregard for third-party property rights in data stored on Megaupload. For example, the government knew Megaupload operated a data storage business, and thus held the property of third parties lawfully using Megaupload’s storage services. The government knew its search and seizure of Megaupload’s assets would deprive such third parties of the ability to access and retrieve their property. In seizing domain names and executing the search warrant at Carpathia, the government took constructive possession of all the third-party owned data it had seized and to which it had prevented (and continues to prevent) access by their owners. The government then “released” the third-party owned data in a manner that deliberately made the data both inaccessible to property owners and subject to government-sanctioned destruction, while at the same time blocking all reasonable efforts to allow access.

These failings are striking given that the government is well familiar with the need to accommodate third-party Fourth Amendment rights through minimization when it executes searches and seizures, especially of electronic material.

Of course, Goodwin isn't the only one asking the court to pay attention. Megaupload itself pointed out that it should be included in any such hearing, even though it's technically outside of this part of the dispute. It notes that if the courts order the data retrieval, someone who understands what's on the servers and how to find the relevant material would be helpful. Furthermore, the company is concerned about how the servers will be handled, since it still believes there's useful evidence there that the DOJ appears to want to destroy.

Of course, if Megaupload is filing for something, you shouldn't be surprised to find out that the MPAA is right behind with its own filing, warning that it wants to be sure that the court magically make sure that no infringement occurs if anyone can access their backup data. We've heard this story before, but here it goes again.

... any remedy granted should not compound the massive infringing conduct already at issue in this criminal litigation.... Additionally, if it would be helpful to the Court to consider evidence from the MPAA or its members on such issues as the lack of authorization for the reproduction and/or distribution of their works via Megaupload, or the overwhelming amount of infringement of the MPAA members’ copyrighted work on Megaupload, they will of course cooperate.

Of course, the issue right here has nothing to do with the MPAA's fears about infringement. It's about getting someone back the legitimate data they have on the servers. Why would the MPAA fight so hard against that?

I would imagine this is going to drag on for a while.

Filed Under: kyle goodwin
Companies: megaupload, mpaa

EFF Files Motion To Have Court Release Seizure Warrant In Megaupload Case

from the should-be-public-info dept

In the ongoing case involving Kyle Goodwin trying to get back the content that he backed up via Megaupload and lost as a result of the US taking down the site, the EFF (representing Goodwin) has asked the court to unseal the initial seizure warrants that the US relied on to grab the Megaupload servers from hosting company Carpathia. They point out the number of concerns that New Zealand courts have raised with the legitimacy of the warrants, as well as some basic principles related to the limits on such warrants within the US.

.... these materials will certainly assist him to learn what steps, if any, the government took to inform the court of the scope of its planned seizure and related execution of search warrants. They would also show any plan provided by the government or the court in the warrant materials for minimization to protect innocent users before the seizure or to segregate the data after seizure. Federal judges increasingly impose detailed conditions prior to execution of computer searches.... For example, Judge Kozinski in the Ninth Circuit has observed that if the government refuses to forswear the ability to retain or use data that should have been segregated initially, the judge “should order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant altogether.” .... Unsealing will allow Mr. Goodwin, as well as the general public, to learn which, if any, such conditions were undertaken in this case.

Similarly, under the Fourth Amendment people have a right to be secure in their “papers” and “effects” against unreasonable searches and seizures. A person's “effects” may be the subject of Fourth Amendment protection even where there is no particular privacy or liberty interest.... A property seizure occurs when a governmental intrusion meaningfully interferes with an individual's possessory interest.... The Fourth Amendment analysis, in turn, requires the Court to determine whether the seizure was “reasonable.” Gaining access to the materials that served as a basis for the government’s seizure of his property can assist Mr. Goodwin and other innocent Megaupload users in determining whether the seizure was unreasonable.

Separately, they note that there is tremendous public interest in revealing these details, and criminal cases should be done as publicly as possible. And, considering how frequently the US government is now seizing websites, the issue is of tremendous importance:

The public also has a strong interest in understanding the government process in executing search warrants on cloud computing servers that contain innocent third-party property. Seizures of domain names, and resulting searches of related servers, are tools the government is using with increasing frequency in criminal copyright enforcement actions. For example, the federal government has reportedly seized more than 800 websites so far under its Operation in our Sites campaign. The government has issued press releases and otherwise sought to publicize its efforts, obviously giving its own perspective on its actions. Legislators, the media, and the public are vigorously debating the very issue of these domain name seizures and related searches, even as a large percentage of Americans continue to use cloud computing services. Access to judicial records would ensure a more accurate and informed public debate, rather than one informed merely by the government’s press releases

Finally, they note that the government has already said it has no more need for the servers in question, so why would it make sense to keep the seizure warrant sealed? It seems difficult to argue with any of these points... but I have a feeling that the US Attorneys are about to try to do exactly that...

Filed Under: kyle goodwin, seizure, warrant
Companies: eff, megaupload

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

The DOJ's Truly Disgusting Argument For Denying A Megaupload User Access To His Legal Content

from the hey,-not-our-machines... dept

In the ongoing saga of what happens to all the data stored on the Megaupload servers, the Department of Justice has now filed a truly revolting argument in seeking to end the efforts by a Megaupload user, Kyle Goodwin (who uploaded and stored sports videos that he shot), to regain access to the content he uploaded.

As we've noted, there's been a lot of finger pointing going on here, with a bunch of highly questionable actions on the part of the government, including its repeated suggestion that all of this data -- which, remember, they seemed to think was evidence of a crime -- should simply be deleted. But what's so sneaky and duplicitous about the DOJ's argument here? They're saying that because they never actually seized the servers in question, this has absolutely nothing to do with them -- and that Goodwin would be better off suing Megaupload or Carpathia (the hosting company) or simply paying Carpathia to access the servers. Basically, it says that no one's stopping him... other than the fact that all the servers are offline thanks to the feds' own actions (but, please, they'd prefer you not remember that part). They actually seem to feign surprise that their own actions of seizing Megaupload's domains and all of the company's (and its exec team's) money, and arresting the entire senior management team... might lead to the site being shut down entirely.

Basically, it's as if the government walked into a china shop, smashed up every last piece, and then walked out. When the owner then sought restitution from the government, the government suddenly insists that since it didn't take any of the broken pieces out of the shop, there's no cause for action against the government. And all the smashed up little pieces are still there, so why would anyone complain?

Oh, and just to add totally obnoxious insult to injury, the DOJ also says that even if the court decides that there's some merit in the arguments laid out by Goodwin, even that doesn't matter, because it'll just cop out and declare "sovereign immunity" and avoid having to pay out. The whole thing is a fairly disgusting display by the DOJ showing just how far it will go to lock someone up once it's determined to. They will cause all sorts of collateral damage, and when someone calls them on it, they'll just point the finger elsewhere... all while demanding even more power to censor with impunity.

Filed Under: doj, kyle goodwin, seizure
Companies: carpathia, megaupload