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The Courts Your Rights Online

Megaupload Host Wants Out 164

Posted by samzenpus
from the time-to-tap-out dept.
angry tapir writes "Carpathia Hosting, a U.S. company hosting the frozen data of millions of users of the file-sharing site Megaupload, has gone to court to argue it should not keep the files if it is not being paid. The company has filed an emergency motion in the U.S. Federal Court in the state of Virginia seeking protection from the expense of hosting the data of up to 66 million users. 'While Carpathia has never had access to the data on Megaupload servers and has had no mechanism for returning that data to Megaupload users, we have been attempting over many weeks to resolve this matter to the satisfaction of all parties involved, in a manner that would allow for Megaupload users to be in a position to ultimately recover their data,' Brian Winter, the company's chief marketing officer says."
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Megaupload Host Wants Out

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  • 5th Amendment (Score:5, Insightful)

    by Compaqt (1758360) on Friday March 23, 2012 @04:24AM (#39448769) Homepage

    "No person shall ... be deprived of life, liberty, or property, without due process of law ..."
    constitution.org [constitution.org]

    Seems like a dead letter these days. Encryption keys, laptop seizures, cloud seizures, warrantless email searches, GPS tagging, etc.

    • by TFAFalcon (1839122) on Friday March 23, 2012 @04:36AM (#39448825)

      It's still being followed. Due process of the law now means being accused.

      • Re:5th Amendment (Score:5, Insightful)

        by Hatta (162192) on Friday March 23, 2012 @08:18AM (#39450111) Journal

        That's not funny, it's true. Since "due process" no longer means "judicial process" what's left?

      • Well there is some case for that. Stuff has always been taken as evidence until the trial is over at least, and probably kept permanently if you are found guilty (not sure if a convicted murderer gets their knife back after they serve their time, but I suspect not). This is the flip side of cloud services: since you don't own the thing it isn't just the use of property you are denied, you might actually have bills to pay for stuff you don't want because the gov' doesn't allow you to delete/'cancel service u

    • Re:5th Amendment (Score:5, Interesting)

      by JosKarith (757063) on Friday March 23, 2012 @04:38AM (#39448831)
      Freezing someone's assets to "Prevent their flight" disrupts all their business, legitimate or not...? Who knew that was going to happen?
      Hell, I'm still confused as to how a German living in New Zealand gets arrested on the orders of the FBI...
      • by TheInternetGuy (2006682) on Friday March 23, 2012 @06:24AM (#39449253)

        Freezing someone's assets to "Prevent their flight"

        Never mind the 5:th amendment, I thought freezing peoples asses to prevent their flight was against the Geneva convention or something or another.

      • by nashv (1479253)

        Why is it confusing ?

        You can file a complaint against any an individual in the police force of any nation, and the police force of that nation has the right to make arrests if that individual is on their soil.

        In the case of Megaupload, a US Federal Prosecutor filed that said complaint in New Zealand, providing evidence of international crimes. The FBI then filed for extradition of the accused in New Zealand. There was a court hearing in New Zealand, which approved the extradition.

        Just because the newspapers

        • by demachina (71715)

          It should be noted New Zealand seized pretty much all of his personal assets when he was arressted which, even they, now admit was way over the line.

          The guy is a complete skank, a con man, and probably deserves what he gets but he does also deserve a trail before being presumed guilty and having all his assets seized, and presumably transferred to the bank account of the New Zealand government

          • But the question is do you really trust this complete skank of a con man not to withdraw all his assets and go on the run? If I was in his shoes that is certainly what I would try to do. Freezing his assets guarantees he will get his day in court.

            Presuming that the New Zealand government has outright stolen his assets is an awfully big assumption, and one I would wager you are incorrect on. His assets are still in their respective accounts - access to those accounts is what has been affected.
            • by jedidiah (1196)

              Whether or not I trust him is irrelevant.

              Whether or not I like him is irrelevant.

              There are just certain rules we don't break. This idea predates the republic. It's not a new idea that was invented with the ACLU.

              • So we should just release all high-flight risks after their arrest and simply hope they show up for their court dates? How about if you catch them at the airport trying to fly to a country without extradition treaties? Do you still give him the benefit of the doubt when they say "I will still show up in court."? I am all for due process, but when there is a decent chance due process won't take place becasue the accused fled the country, what other options are there? If you have a better idea how to guarante
                • by eldorel (828471)
                  Putting an accused in lockup is completely different from seizing all assets and putting him out of business.

                  If you arrest someone, the judge gets to decide on the flight risk during arraignment. If the accused is likely to run, then they stay in jail.
    • "No person shall ... be deprived of life, liberty, or property, without due process of law ..." constitution.org [constitution.org]

      Seems like a dead letter these days.

      Well, it definitely counts as property if they're not being allowed to use it. (Yeah yeah, IANAL, gotta say it.)

      Is it just me, or is it that if someone doesn't like what you're doing, they don't care if the charges stick so long as they get to hurt you financially? In a lot of cases it's legal fees, but sometimes it just seems that they see any form of financial pain as enough. That seems like punishment without a conviction, and that bothers me.

      I'd imagine that any legal case being pursued against Megau

      • by CastrTroy (595695)
        By that logic though, it would be unconstitutional to hold someone on bail before the trial. Or to even hold someone while awaiting the bail hearing. They are being deprived of their liberty simply by having charges placed against them. Also, "without due process of law" can mean a lot of things. The process of the law is whatever the process of the law is defined to be. That doesn't mean a full jury trial before they are able to deprive you of life, liberty, or property. If the "process of the law" says
      • by cpu6502 (1960974)

        >>>Is it just me, or is it that if someone doesn't like what you're doing, they don't care if the charges stick so long as they get to hurt you financially?

        This is the preferred method used in Russia. Accuse an anti-government or anti-Putin website of copyright infringement (unlicensed software), grab all the computers, and then shut them down for a year. At the end of the year they say, "Oh you're not guilty" and return the equipment but it's too late by then. It's interesting to see the U.S. i

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Carpathia Hosting is unable to re-purpose these servers, they are also being deprived of their property without due process. They should be allowed to delete the data.

      • Re:5th Amendment (Score:4, Insightful)

        by sjwt (161428) on Friday March 23, 2012 @07:54AM (#39449885)

        Carpathia Hosting is unable to re-purpose these servers, they are also being deprived of their property without due process. They should be allowed to delete the data.

        Or perhaps as part of the due process, the government should be reimbursing the companies it can and dose cripple with such moves.

      • Carpathia Hosting is unable to re-purpose these servers, they are also being deprived of their property without due process. They should be allowed to delete the data.

        I'm surprised that the FBI doesn't just seize the servers to prevent tampering with evidence in an upcoming lawsuit.

      • If there is reasonable suspicion that they aided and abetted a crime then property can be seized. I'm still £10 down because I came across a bank note smeared in red dye, so I handed it in to the police. They caught a bank robber because of it. No reward, no return of my tenner ("stolen goods"), no reimbursement, it's just the way it works. Not particularly fair though.

        The sensible thing in this case would be to have a court appointed computer forensics person come in and take an image of the ser
        • by sjames (1099)

          The problem with their approach is that next time you'll know better than to turn it in.

      • by sjames (1099)

        Or paid for holding it.

    • Re: (Score:3, Insightful)

      by petsounds (593538)

      Funny how people say that digital goods should not be counted as a specific piece of property until suddenly their personal interests are at stake. [I'm not targeting you personally; I don't know what your take on digital goods is.]

      Either files are real property, or they are not. If they are, then they must be so consistently whether it is your file on a server that you have been denied access to, or whether it is someone downloading a 'copyright-infringed' mp3 from a torrent site. If not, then the files up

      • by gomiam (587421)
        You are equating different things: a paper copy of a novel is a piece of physical property. The novel itself isn't a piece of physical property, as demonstrated by the fact that it can be copied (on physical media as paper for example).

        Files, as pieces of magnetized ferrite on a disk, are physical things and you can complain about their not being available, because you lost your copy of those files when you lost access to that magnetized ferrite.

        Besides, copyright advocates don't complain about their inte

        • The industry itself doesn't even have a clear-cut idea as to what is property and what isn't as concerns digital media.

          Take the RIAA, for instance, who in the course of a week or so, argued that an MP3 was merely being 'licensed' in order to prevent the sale of 'used' MP3's in their suit against Redigi [wired.com], and then in another case, argued that MP3's were actually being 'sold' to avoid being liable for the much higher percentage of royalties due the artist for licensing their music as opposed to selling it [musicweek.com].

          Obvi

        • You are equating different things: a paper copy of a novel is a piece of physical property. The novel itself isn't a piece of physical property, as demonstrated by the fact that it can be copied (on physical media as paper for example).

          Files, as pieces of magnetized ferrite on a disk, are physical things and you can complain about their not being available, because you lost your copy of those files when you lost access to that magnetized ferrite.

          Besides, copyright advocates don't complain about their intellectual property "disappearing" (at least usually): they complain about there being too many "unauthorized" copies of it laying about.

          To summarise: you are saying physical and virtual items are the same when they aren't and saynig not having access to some data with having "too many copies" of it around is the same when it isn't. <sarcasm>Will you try showing that black and white are the same too?</sarcasm>

          So are you saying the copies are not copies if they are digital copies? Why is there a problem with Megaupload in that case? And if you are wrong, what law will allow them to be copied if the owner of the file is the copyright holder? But in any case, how many people are likely to pursue this sort of thing?

          • by gomiam (587421)
            Their being digital doesn't matter. The physical copy is subject to physical constraints of scarcity (for example, it can be removed from its owner's possession), the virtual item isn't. Seeing them both subject to physical scarcity is illogical (unfortunately, law can be illogical at times).
      • by mcgrew (92797) *

        Whether or not files are "property", the computer the files reside on certainly is. Searching your computer is no different than searching your physical file cabnet.

      • by jedidiah (1196)

        People love to conflate personal papers and creative works.

        This is an unfortunate side effect of trying to treat every scrap of paper as some sort of masterpiece and copyrighting it by default.

        "Intellectual Property" is published creative works.

    • Re:5th Amendment (Score:4, Insightful)

      by msobkow (48369) on Friday March 23, 2012 @06:35AM (#39449305) Homepage Journal

      If your data is your life, you should have been doing backups to other locations, not just posting it to a server some where.

      No sympathy here for anyone who "lost" data due to the takedown. Were I in the hosting provider's shoes, my response would be along the lines of:

      A failure to plan on your part does not constitute an emergency on my part.

      It's an old saying in the IT world, but a sanity-saver when dealing with incompetent users and departments who always put off their requirements to the last minute and who rarely have the budget to PAY for those requirements.

      • Re:5th Amendment (Score:5, Insightful)

        by PopeRatzo (965947) on Friday March 23, 2012 @07:28AM (#39449641) Homepage Journal

        A failure to plan on your part does not constitute an emergency on my part.

        What would you say if you got a call from your banker tomorrow saying they lost all your money, but...

        "A failure to plan on your part does not constitute an emergency on my part."

        Hell, you should have saved some money elsewhere and kept your money somewhere that didn't have a vice president who was going to Vegas every weekend, and by the way, you never complained when you were getting 0.5% higher interest rates than other banks offered.

        If your money is your life, you should be more careful with it.

        If it's such a high war on crime priority for the FBI to take down this goofy criminal mastermind, who they seem to believe is some James Bond supervillian, then they ought to pay this host site to preserve their evidence for them. And, they ought to allow the users of Megaupload access to their files until they are each proven to be stolen or infringing. And to anyone who actually paid Megaupload to share their files: have you never heard of a torrent?

        • by msobkow (48369)

          I'd say that's what the FDIC and Canadian equivalent are for.

        • by blueg3 (192743)

          Wait, I can make backups of my money? Please explain.

        • What would you say if you got a call from your banker tomorrow saying they lost all your money, but...

          "A failure to plan on your part does not constitute an emergency on my part."

          The difference between Megaupload and a Banker is that I can't copy my money and then use those copies elsewhere for little to no cost.

        • That would be fraud and/or negligence. The bank sold you their trust and you put the money in. How they handle it is a part of the agreement whenever you open a bank account. IANAL

          So what obligation does Carpathia have to host the files? I'm pretty sure they don't have a similar agreement with the people that asked them to host the files...

          • by sjames (1099)

            Carpathia has no such obligation. However, when law enforcement did their thing, they created an obligation for themselves. THEY need to either pay Carpathia to retain the data or make other arrangements to get it back to the people who uploaded it and let Carpathia wash their hands of it.

    • by realsilly (186931)

      Article. XIV.
      [Proposed 1866; Allegedly ratified 1868. See Fourteenth Amendment Law Library for argument it was not ratified.]

      Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due proc

      • by Compaqt (1758360)

        Wait, what are you talking about?

        Are you saying that I took verbiage from the 14th amendment, and mis-attributed it to the 5th?

        In fact, I took the words from the 5th (excerpted with ellipses).

        If you don't for some reason like constitution.org, check it out on Wikipedia [wikipedia.org].

        Secondly, the verbiage of the 14th tracks that of the 5th amendment.

        Finally, the 14th refers to the states while (according to some) the 5th refers to the government of the united States, which is what took the action in this case.

    • by couchslug (175151)

      If a rental property isn't being paid for, the landlord may remove the furniture etc to storage and accrue storage charges. Then, if those aren't paid, it goes to public auction.

  • by mykos (1627575) on Friday March 23, 2012 @04:26AM (#39448775)
    ...just like we have to pay for any other copyright enforcement actions?
    • by Anonymous Coward

      The megaupload servers will have the details of all the users and their uploaded pirated stuff in their accounts. Just bill their credit cards.

      Seriously, you realize that this is the start of the process not the end, those servers contain massive amounts of copyright infringement logs and a paid account is linked to a credit card and thus to a person. So there will be a mass of investigations to follow from this.

      There's no way a court will let that data be destroyed.

      • That sounds like a good use of taxpayer money. We'll get those game copiers! The gains we get from doing so will be immeasurably high!

  • by AGMW (594303) on Friday March 23, 2012 @04:31AM (#39448789) Homepage
    It totally stinks that the high percentage of legitimate Megaupload customers are getting screwed 'cos of the US bully-boy tactics. What about shutting down the US Postal Service because of all the illegal activity that enables? People do bad things with telephones too. Hey, don't people use cars as getaway cars ... let's shut down Ford and GM while we're at it!
    • Re: (Score:3, Funny)

      let's shut down Ford and GM while we're at it

      Don't worry, Detroit execs are already busy mismanaging them out of existence themselves anyway.

    • by rtb61 (674572) on Friday March 23, 2012 @04:49AM (#39448861) Homepage

      The best alternative would have been to appoint a legal guardian, to ensure the legal elements of the business can continue whilst the court case is carried out. What has happened flies in the face of one of the most important elements of justice, innocent until proven guilty. Elements of the US government have completely abandoned this principle from torturing suspects (guilty upon accusation and subject to punitive physical and psychological abuse, at the hands of mentally disturbed individuals seeking promotions and passing performance measures, all without recourse to the courts and false confessions to end the torture being treated a valid evidence) to confiscation of assets to actively prevent paying for a legal defence.

      A bunch of out of control wankers, with no real appreciation of the law and justice, just their own ego of being judge, jury and execution. A closed chorus, cheering each other on in their legal abuses, gloating over the power they misuse and it all falls apart when it finally goes through the courts, unless of course they can force a confession and guilty plea out of people, via extended psychological torture.

    • by couchslug (175151)

      HIgh percentage? Citation needed.

      The major purpose of such sites has always been warez and porn. That's why there are so many links to them passed 'round the net.

      No one here believes otherwise but many pretend it.
       

  • by rainer_d (115765) on Friday March 23, 2012 @04:56AM (#39448879) Homepage
    They are afraid that the case against "Kim Dotcom" implodes and he sues (which, given the circumstances is not unlikely). It will be interesting to see the outcome of this. Kim Dotcom certainly has the funds and is willing to fight this to the end.
    • by lxs (131946)

      I don't know. His assets are frozen. The poor guy is down to a measly $70000 per month for himself his pregnant wife his nursemaid and his butler.
      He is the 99%

      • by rainer_d (115765)
        Yeah, but the freeze may be lifted completely (due to a formal error).

        Personally, I wouldn't invest a cent in any of his ventures - but too often already has the music and motion-picture industry used false allegations to shut down innocents.
        "Innocent until proven guilty" was once worth something (although not in this century, I admit).

  • Any previous judgements about similar cases where the goods are physical?
    Say, rent lockers or 3rd party warehouses that hold possible contraband/illicitly appropriated/counterfeited materiel in such quantities that it cannot be moved without extraordinary expense?
  • by gweihir (88907) on Friday March 23, 2012 @05:45AM (#39449055)

    I think this is actually a good thing, better find out now than later. Together with the recent outages at the Amazon and MS clouds, this shows that the cloud is really a chancy thing to depend on.

    • by AmiMoJo (196126)

      Which is why we should try to protect people who use it. A lot of internet communities are built on free beer services, and that is a good thing because they enrich us and otherwise wouldn't exist.

  • Meh (Score:4, Insightful)

    by drinkypoo (153816) <martin.espinoza@gmail.com> on Friday March 23, 2012 @06:03AM (#39449139) Homepage Journal

    If I did legitimate banking business with an offshore bank I would still expect my funds to dry up and disappear one day because it's a fucking illegal bank. Yes, there is non-infringing use, but these sites exist on the back of illegal uploads. If it can be shown that they make a significant percentage of their income on obviously illegal transfers then it's hard to see the logic (legally, that is) of permitting them to continue to do business. And it's also hard to see the logic of expecting your files to continue to be available when you're storing them with someone known for their access to files to which people aren't supposed to have access.

    • Re: (Score:3, Interesting)

      by cbope (130292)

      Are you seriously implying that any entity operating "on foreign soil" is by definition doing something illegal?

    • Re:Meh (Score:4, Interesting)

      by phayes (202222) on Friday March 23, 2012 @07:07AM (#39449449) Homepage

      By the same yardstick, if the bank holding your mortgage has been used to transfer drug money the USG can seize all it's accounts & kick you out of your home while proceedings are undergoing against the bank officers that were abetting the drug runners?

      No. Hell NO!

      I never used Mega* directly (got some stuff from friends who did though) as I always assumed that something would come along to squash it However, locking the legit users out amounts to illegal seizure in my book.

      • by drinkypoo (153816)

        No, because your bank is insured and has to operate by certain laws. Even if they don't, you have plausible deniability because they are required to operate by those laws. The offshore banks are operating without those laws, and therefore you don't have any assurances that they are even supposed to behave themselves.

        • by phayes (202222)

          Oh so, you think it's laws that make a difference? Well then, when your bank is held responsible for breaking the laws of another country like say divulging information that says MY information is not to be divulged to people outside the EU, the EU will by your standards be justified in seizing your bank's (& by extension your) assets.

          Mega* says it was behaving by NZ's laws. Either the seizures are illegal or your assets are liable for crimes committed by bank officers in other countries. Other position

          • by drinkypoo (153816)

            You have a reading comprehension problem. It's not that I think the laws stop the banks from breaking them, it's that I have recourse if they do. And as has been pointed out elsewhere, the FDIC is my backup.

            • by phayes (202222)

              I dont have a reading comprehension problem but you visibly have a problem making your point without falling into contradictions. The financial meltdown has tought those of us that were paying attention that the FDIC will not save you when a bank robosigns your home into foreclosure nor will it save you from a governmental abuse of power.

    • it's a fucking illegal...If it can be shown

      Logical.

      expecting your files to continue to be available when you're storing them with someone known for their access to files to which people aren't supposed to have access.

      Logical.

      Both indicate that Megaupload was a great place to store your files if you can assume a just application of law. Of course under a fascist axis of power it does turn out to be a bad idea. Best to store all your important data with the NSA.

      • by suutar (1860506)
        The best part is you don't even have to take special action to get it to them. The hard part is retrieving it later...
  • They are going to be told that they must keep the servers - just in case it is needed in some court trial in 2-3 years time, and no they can't claim from law_enforcement/courts/... they must pay for it themselves - tough.

    If they had just wiped the machines because their customer had not paid their bills they would have been given a slap on the wrist, now if they do they will be in breach of a court order.

    • by Ash-Fox (726320)

      They could also just not pay and they aren't the ones wiping it then, if I understood the original article correctly. If they stop paying the hosting fees, the data will no longer be available.

    • by TheSpoom (715771)

      More importantly, the FBI wants the data so they can go on the biggest digital fishing expedition ever. I expect they'll go after anyone whose account has versions of files protected by any of the major antipiracy "agencies".

  • The hosting company has done nothing wrong. They shouldn't be punished to keep all that data going. If the government wants to punish Megaupload, that's fine, but pay the hosting fees, so you don't end up bankrupting an innocent party while you take months if not years to sort this out.
    • by Anrego (830717) *

      Generally agree.

      Though I have to say, unless they had their heads in the sand.. they _had_ to know what they were hosting, what was going on, and the possible (even likely) legal repercussions. I generally don't like the precident of service providers having to police their users .. but given the current legal climate, providing service to this kind of site was an obvious risk.

  • Why should the landlord have to pay the costs of holding stuff waiting for a court case to work though the courts?

  • They get brought to court for offering a free service... and now that they are being slapped with this lawsuit...it is easy to see why they would want to close, as well as also deny any further attempts by the courts to ask them for details about people's files. If i was them, I would not have been so lenient, I would have said, for all free stuff, you have a 2 weeks to download, until it gets purged, and for the paying customers, i would have made a tool that allows them access directly to the files on the

  • You're screwed then. If they were in NZ too if I was them I'd have just deleted it. Oh sorry a customer wasn't paying so as per our contract after 60 days their data is deleted. Oh, they were MegaUpload and you were interested in that day .. sorry. Too bad we aren't in the US. But alas that isn't the case they are a US based company and hence, screwed.

  • If the data being held can not be proved to be infringing prior to any charges being laid, then the **AA cartel is liable for damages to the actual owners of the data, ie the Megaupload users, for their not being able to access their own data. If the *AA want to pursue this and meanwhile hold all the data to ransom, then they better fuckin' pony up.

    If this mess is being headed up by Federal prosecutors then it's for the State to pay for storage.

    OK, let's get really pedantic on this: let's have the client ac

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