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The Courts Your Rights Online

US DOJ Claims It Did Not Entrap Megaupload 246

Posted by Unknown Lamer
from the when-all-you-have-is-a-sledgehammer dept.
angry tapir writes "The U.S. Department of Justice did not mislead a court and attempt to entrap file storage site Megaupload on copyright infringement charges, the agency said in a new filing in the case. Megaupload's charges that the DOJ conspired to entrap the site on criminal copyright charges are 'baseless,' an official with the U.S. Attorney's Office for the Eastern District of Virginia wrote in a court document filed last week. Earlier this month, Megaupload filed court documents saying that in 2010 the DOJ asked the site, through its hosting vendor, to keep infringing files as part of a DOJ investigation, then later charged Megaupload with copyright infringement."
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US DOJ Claims It Did Not Entrap Megaupload

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  • Re:Huh? (Score:5, Informative)

    by Anonymous Coward on Monday January 14, 2013 @09:06PM (#42587645)

    They were asked to keep the files for an unrelated case. Then they were raided, and charge with copyright infringement for having the files the DOJ had earlier asked them to keep.

  • Re:Huh? (Score:5, Informative)

    by Anonymous Coward on Monday January 14, 2013 @09:07PM (#42587659)

    No, it's entrapment because the DOJ said "Keep the files" then charged them with crimes for keeping the files. It's like when a police officer tells a drunk person to move their car, then when they do they arrest them for a DUI (and yes, this does happen). Dumb as shit, but hey, that's America!

  • Re:Huh? (Score:5, Informative)

    by Hentes (2461350) on Monday January 14, 2013 @09:11PM (#42587697)

    Hosting infringing files is allowed under the DMCA, not deleting them upon request from somebody claiming to own a copyright on it is what's illegal, which they say they weren't allowed to do.

  • Re:Huh? (Score:5, Informative)

    by Impy the Impiuos Imp (442658) on Monday January 14, 2013 @09:19PM (#42587755) Journal

    Exactly.

    "The government cannot, on one hand, tell a U.S. court under penalty of perjury in seeking the cooperation of Megaupload in a search warrant they wanted to prevent evidence destruction of alleged infringing content files, and then, on the other hand, complain to a different court under penalty of perjury that Megaupload is a criminal for not destroying such files," Rothken said in an email.

  • Re:Huh? (Score:5, Informative)

    by sjames (1099) on Monday January 14, 2013 @09:35PM (#42587861) Homepage

    No, the argument was that they were asked to keep the files as they were pursuant to a separate investigation.

  • Re:Huh? (Score:5, Informative)

    by Anonymous Coward on Monday January 14, 2013 @09:53PM (#42587985)

    They actually did that.

  • Re:Huh? (Score:5, Informative)

    by man_of_mr_e (217855) on Monday January 14, 2013 @10:44PM (#42588231)

    Wow, you really are pretty ignorant of the law.

    In fact, the keys don't have to be in the ignition. They only have to be accessible to you (as in, in your pocket, or on the seat next to you). If you crash out in your car drunk, unless your keys are nowhere to be found, you can be charged with a DUI.

    http://www.myduiattorney.org/dui-tips/sleeping-it-off-yes-you-can-get-a-dui-in-your-sleep.html [myduiattorney.org]

  • Re:Huh? (Score:5, Informative)

    by Theaetetus (590071) <theaetetus,slashdot&gmail,com> on Monday January 14, 2013 @10:49PM (#42588249) Homepage Journal

    The moral of the story? Don't talk to the the police. Don't help them. Don't believe anything they tell you, it is perfectly legal for them to lie to you. Don't sign anything. Don't volunteer any information, even if you think it's helpful. You do one thing and one thing only: Ask for a lawyer over and over... and even then, it has happened, that the police send in the DA and tell you "here's a lawyer" and you admit everything while they're taping. It's legal, and it's been done. Fuck the police, they are not your friends, they are there to arrest you.

    Most of what you say is true, except for the one about the DA. I am a lawyer, and we studied that case in my professional responsibility class - that defendant's statements were suppressed, and the DA was disbarred. You frequently can trust the bar overseers: one benefit of our adversarial system is that since the other side's lawyer is trying to fark you, and your lawyer is trying to fark them, the neutral party really does end up pretty neutral. Just don't trust the cops. They're always on the other side.

  • Re:Huh? (Score:5, Informative)

    by DragonTHC (208439) <Dragon@gamerAUDE ... l.com minus poet> on Monday January 14, 2013 @11:08PM (#42588315) Homepage Journal

    no, because the DOJ specifically asked them not to alert the users who uploaded the files.

  • Re:Huh? (Score:3, Informative)

    by Anonymous Coward on Monday January 14, 2013 @11:18PM (#42588399)

    huh?

    The original DOJ request to preserve data is documented.

  • Re:Huh? (Score:4, Informative)

    by SplashMyBandit (1543257) on Monday January 14, 2013 @11:59PM (#42588601)

    Excellent anecdote. Here's an eye-opening video from a law school professor and a detective. Both of them agree, never talk to the police
    http://www.youtube.com/watch?v=6wXkI4t7nuc [youtube.com]

  • Re:Play on words (Score:4, Informative)

    by fredprado (2569351) on Tuesday January 15, 2013 @12:01AM (#42588617)
    The charge was not because of hosting the files. They did comply with all DCMA take down notices they received and stopped hosting any infringing file reported. Evenso the DOJ charged them because they had the files stored, which DOJ itself had previously ordered them to do.
  • Re:Huh? (Score:5, Informative)

    by AdmiralWeirdbeard (832807) on Tuesday January 15, 2013 @08:10AM (#42590075)

    my reading of mega's brief and the government's response, is that the government did not ask mega to preserve any data. Rather, the warrant, served against carpathia, was sealed, with exception for disclosure to mega for compliance with keeping the existence of the warrant secret. Mega's brief includes the original email from one of carpathia's directors, which states that the government wants the files themselves to be turned over, and recommends that they be aggregated onto one or more drives from the server, then those drives be handed over. It also recommends that mega not start an 'E7 ticket.' I have no idea what that is, but the implication is that opening one would alert the ninja users as to the reason for the unavailability of files.

    The brief says that mega maintained the files publicly available in keeping with the government's express desires, but the document they offer in support shows no such government request. In fact, the government did not interact directly with mega, as the warrant was being served directly against carpathia, as the actual hosts of the files. There seems to be a lot of 'the government request is well documented' going on in the comments here, but its not evident even in mega's own supporting documentation. The government seems to have gone out of its way to preclude such a claim simply by not interacting directly with mega.

    Furthermore, the affidavit supporting the domain seizures in early 2012 was not, as one might infer from mega's rhetoric, based exclusively on the files at issue in the ninjavideo case. In fact, one of the two infringing files specifically named, with URL, in the affidavit was twilight breaking dawn pt 1, which had not been released in 2010 when the gov was pursuing ninja.

    The problem with the whole thing, in my opinion, is that mega could have made a decent argument that they couldnt remove the specified files from public availability without giving the ninja users cause to ask why, and that in order to comply with the spirit of the seal on the warrant, keeping the files up and available was the only real option. The main weakness in this is that for only 39 files, 'random server shenanigans' would be totally par for the course if they'd just taken the files down with no explanation. Server errors happen. This argument also only goes so far without either a very official letter of understanding from the DOJ that mega would not be held liable for infringing copyrights while complying with the warrant, or even better, an injunction mandating that they keep the files up and remain silent as to why. But that's not what happened. A sealed warrant was served on mega's host, carpathia, apparently seizing the files and compelling the disclosure of identifying information on the ninja users. That's not really the same thing as 'complying with a documented request by the DOJ to keep breaking the law.'

    I'm sure there's a bunch of stuff i'm missing, the suit is pretty complex at this point. Even just mega's brief includes both mega's action as well as a third party action to compel the DOJ to release private, non-infringing data back to private mega users. But the entrapment claim seems kinda stupid. Copyright law needs some major reform, but in the statutes. Letting Mega off will accomplish as little as convicting them, imo. Either way, a bunch of other file lockers stepped in to fill the void, and the copyright system will still be a statutory nightmare essentially legislating the corporate content creation model of 20 years ago. Oh, last note, Wired's story has good links to the briefs, affidavits and warrants discussed above, much better than TFA linked above.

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