It’s been awhile since we checked in with Megaupload. When we first reported that the New Zealand based company was knocked out by a US Government pushed by the MPAA and the RIAA, we were skeptical of some of the more egregious allegations, to say the least. As the case progressed, we couldn’t confidently say that Kim Dotcom was innocent, but the offensive maneuvers by the US and NZ Governments certainly seemed a little… overreaching.
Late last week, documents surfaced that seem to change the narrative of the story, from an over-zealous Government bending rules to bring justice to a likely criminal, to a corrupt Government knowingly setting up an opponent of some of its lobbyists.
Back in April of last year, in addition to the news that the US Government had no legal right to serve Megaupload, we reported on one Kyle Goodwin, operator of OhioSportsNet, and his battle to get his legal backups from Megaupload’s seized servers. Goodwin was recently forced to request that the court unseal the warrant used by the DOJ to seize Megaupload. The judge allowed it despite furious protest by the DOJ, and as TechDirt reports, the reasons for such resistance have quickly become clear.
One of the key charges made by the DOJ was that Megaupload knew it had infringing content on its servers, that it hadn’t removed. What the warrant didn’t reveal was that the Government had previously ordered Megaupload not to remove this content, claiming it was part of a criminal investigation.
In a filing prepared by Megaupload’s attorneys, the charge of deliberately misleading the courts is laid down loud and clear:
The Government represented that, “[o]n or about June 24, 2010, members of the Mega Conspiracy were informed, pursuant to a criminal search warrant from the U.S. District Court for the Eastern District of Virginia, that thirty-nine infringing copies of copyrighted motion pictures were present on their leased servers at Carpathia Hosting, a hosting company headquartered in the Eastern District of Virginia,” and that, “[a]s of November 18, 2011, thirty-six of the thirty-nine infringing copies of copyrighted motion pictures were still being stored on servers controlled by the Mega Conspiracy,” after it was informed of the infringing content…. This snippet — which appears in each relevant affidavit and is the only direct, corroborated evidence the Government purports to offer as proof that Megaupload had requisite knowledge — suggests that Megaupload was warned of its potentially criminal complicity yet persisted in hosting the files without concern for their illegal content. The affidavits, in short, paint Megaupload as a brazen scofflaw.
The truth, as the Government well knows, is quite different. Megaupload had every reason to retain those files in good faith because the Government had sought and obtained Megaupload’s cooperation in retrieving the files and warned that alerting users to the existence of the warrant and the Government’s interest in the files could compromise the investigation. Carpathia informed Megaupload that the warrant was sealed, and that only Carpathia and Megaupload, not the users of the infringing files, were to know of its existence, and at the Government’s request provided Megaupload a copy of the sealing order. The Government selectively parsed its account so as to exclude critical facts that negate any notion that Megaupload had criminal mens rea to retain the infringing files.
And the vicious summary reads as follows:
Nowhere did the Government tell this Court that its June 24, 2010 warrant had been calculated to enlist good-faith cooperation with a criminal investigation, while preserving the secrecy thereof. Nowhere did the Government tell this Court that the Government had sought Megaupload’s voluntary assistance in executing the warrant. Nowhere did the Government tell this Court that Carpathia had assured Megaupload, in the interests of its requested cooperation, that there was no basis to believe that Megaupload was a target. Nowhere did the Government tell this Court that Megaupload had in fact cooperated precisely as requested. Most importantly and most troublingly, nowhere did the Government tell this Court that Megaupload had been informed by Carpathia, acting on behalf of the Government and heeding the Government’s insistence upon sealing, that the secrecy of the warrant and the Government’s investigation must be preserved to avoid destruction of evidence and notification of the targeted users. Nor did the Government inform this Court that the sealing order it had obtained and furnished Carpathia to provide to Megaupload likewise required secrecy and expressly specified that [redacted]. In sum, nowhere did the Government tell this Court that Megaupload had done exactly what the Government had asked it to do — execute a search warrant without alerting the ostensible targets to the existence of an investigation. The Government’s contention to this Court that Megaupload’s preservation of the status quo was evidence of criminal intent is false, and deliberately so.
As this case falls apart, Dotcom offers the promise of a new Megaupload (see to be housed at mega.co.nz), along with some shit-stirring jabs at his accusers:
They ignoreda our rights, destroyed our business, took our freedom, seized our assets & treated us like terrorists. pic.twitter.com/fUoMWkd0
— Kim Dotcom (@KimDotcom) January 6, 2013
Those at the DOJ who will lose their job over this case can take comfort in knowing that an MPAA affiliated company will hire them.
— Kim Dotcom (@KimDotcom) January 6, 2013
11 more days until #Mega. 11 more days until the US government fails and Innovation wins. 11 more days. RT
— Kim Dotcom (@KimDotcom) January 7, 2013
We’ll get you the final word if and when it all comes down.