DOJ Tries To Explain How It Can Get Around Requirement To Serve Megaupload In The US

by Mike Masnick

Back in April, a US judge pointed out that US criminal law requires serving those accused of criminal activities and Megaupload, as a foreign-based corporation, might not be subject to such service -- potentially killing the lawsuit against the company (though, not against the individuals who run the company). The Justice Department has now hit back with a filing mocking the idea that Megaupload could avoid criminal charges as a company (pdf and embedded below).

The filing focuses on how Megaupload had extensive operations in the US, including having many of its servers hosted here -- and even had two separate CEOs at various points who reside in the US (including Swizz Beatz, who the filing notes, has refused to cooperate). It further argues that there is no rush to serve the company, and that it can do so once the execs are extradited to the US -- or it can serve them at the office listed in Hong Kong. Admittedly, part of this fight is really about process technicalities, so I wouldn't make too big a deal of them. However, there are legitimate jurisdictional questions about what the standards are if the US can go after a company anywhere in the globe, just because it's online. That could certainly come back to haunt the US, as US companies are frequently targeted by other countries. Having a case like this could be used as justification to retaliate against US companies.

The filing also highlights something that is somewhat self-contradictory about the US's case. In an effort to argue US jurisdiction, the DOJ argues that Megaupload has been involved in civil lawsuits (on both sides) in the US. That is true... but that seems to weaken another contention in the DOJ's wider case: that it had to take the actions it did because Megaupload was somehow "unreachable" as an offshore "rogue site." The actual evidence, as noted by the DOJ itself in this filing, proves otherwise.

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Pro-Copyright Judges Never Drop Cases Over Conflicts, So Why Does Megaupload Judge Have To Step Down?

by Mike Masnick

This isn't a huge surprise, but yesterday, we wrote about some comments by Judge David Harvey in New Zealand concerning region coding on DVDs and the New Zealand/US negotiations over the TPP agreement. None of this had anything to do with Megaupload or the Dotcom case, but at one point he referred to a tweet that did a slight satire on the famous saying, and noted that "we have met the enemy and he is [the] US." The press was already blowing this out of proportion -- suggesting, totally incorrectly, that he had "called the US an enemy" when it came to copyright law. That's not true at all. Beyond the fact that he was paraphrasing a common saying in a clearly hyperbolistic manner, the issue he was talking about was very specific to anti-circumvention issues related DVD region coding, and nothing, whatsoever to do with the direct issue in the case.

That said... as many people are noting, Judge Harvey, recognizing the press furor about all this has stepped down from the case and will allow another judge to pick up the extradition issue down the road. This is unfortunate, as Judge Harvey is noted as one of New Zealand's key internet law experts, who really understood these issues at a deep level. Still, it's unclear if this change will have a huge impact on the case. The judge taking over for Harvey, Judge Nevin Dawson, has also been involved in the Megaupload case, and was the judge who released Dotcom on bail, despite pressure from the US to keep him locked up. Furthermore, Harvey and Dawson are district court judges, and it seems likely that, in the end, this will involve New Zealand's High Court, which is already engaged and has already ruled against the US.

But, here's the bigger issue: we see stories of judges in big copyright cases all the time who have strong ties to pro-copyright or copyright maximalist organizations... and people shrug and move on. Let's just say, for example, if Judge Harvey had said that he agreed with New Zealand's efforts to join the TPP because he thought that New Zealand needed stronger anti-circumvention rules to protect DVDs, would anyone even blink an eye? I doubt it.

Furthermore, travel around the globe, and you find the exact opposite situation in many cases, where the judges did not step down. Most famously, over in Sweden, the judge who heard The Pirate Bay trial had close ties to the copyright lobby, and was a member of a few organizations that worked towards promoting stronger copyright law. It seems like that would be a much more direct and obvious conflict than Judge Harvey's... yet that Swedish judge stayed on. Similarly, here in the US, Judge Beryl Howell, who bucked the trend in copyright trolling cases, by allowing cases to move forward on questionable theories, was just recently an RIAA lobbyist, and prior to that had helped write the DMCA, while a Congressional staffer. And, yet, she remained on the case.

It seems that there's a pretty clear double standard at work here. If you're strongly pro-copyright, no one blinks an eye if you are hearing copyright cases. But, if you make an offhand joking comment that's marginally critical of US copyright policy in one specific area, totally unrelated to the case at hand... you step down.

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Harvard Prof: MegaUpload Shutdown is an Attempt to Kill Technology

by Ernesto

In the wake of the MegaUpload shutdown Bloomberg interviewed Yochai Benkler, Prof. of Entrepreneurial Legal Studies at Harvard and faculty co-director of the Berkman Center for Internet and Society.

Benkler criticizes the actions of the Department of Justice, which he characterizes as ?aggressive.?

?What is a surprise is how aggressive the move is, how much it uses extensions of criminal law enforcement and copyright liability to go after and seize assets and people in anticipation of a full trial,? he says.

According to the Prof. the shutdown of MegaUpload is yet another example of the copyright industry hampering technological innovation.

?When a new technology comes along [...] and destabilizes the way the industries have always made money, the first gut response throughout the 20th century has been; let?s shut down this technology.?

As has been demonstrated many times in the past, these lawsuits can kill technologies and companies, the prof adds.

?What?s chilling here is that a company can be served with a one-sided indictment that lists a whole set of quasi-legitimate and legitimate technological components that lots of other companies use.?

?By the time it will be finished litigating whether that?s enough or not it is dead, because these procedures for forfeiture during the trial will kill the company?

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