US DOJ Claims It Did Not Entrap Megaupload 246
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."
Bill Clinton (Score:5, Insightful)
And I didn't have sexual relations with that woman!
Re: (Score:2, Funny)
Comparing a case of cheating with what the DOJ did, is like comparing a case of matrimonial beatings to Hitler himself.
Bit over the top, don't you think?
Re:Bill Clinton (Score:5, Insightful)
Godwin, really?
GP was just providing an example of a another lie that was just as unbelievable in both its veracity and its outrageousness.
Let's see a show of hands of how many actually believe that the MPAA/RIAA, um, I mean USA government acted legally, legitimately and in good faith?
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With all due respect, most of US gov is filled with double moral and you can say the same for most US living people.
Think about copyright laws, drug fighting, taxation for big corp, and so on.
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The word you want is hypocritical. and yes most people in most countries are hypocritical.
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Keep? Or distribute? (Score:2, Insightful)
"Well your honor, the DOJ said we should 'keep' the evidence, and we thought that meant, distribute it through myriad of links, some of which we created to keep it alive.... so we were the victims of entrapment, and by entrapment, I mean intentionally pretending to misunderstanding something in order to try to create outrage from the headlines that might swing a decision in our favor."
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It was more than just keeping the evidence. They were not supposed to interfere with the user regarding the investigation so as not to arouse suspicion. Suspending/deleting the video seems like it could have easily done that.
He said/She said (Score:5, Interesting)
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Strictly speaking Megaupload was not ordered by the DoJ to do anything to these files. The people who were ordered to do something were Megaupload's hosting provider, which told Megaupload not to do anything that would tip off the "owners" of these files.
The exact legal implications of this are unclear, but I'd say it makes Megaupload's defense much trickier unless they can get Carpathia to document that the DoJ wanted those files kept.
Of Course (Score:2)
entrapment? (Score:2)
Of course, if MU were already hosting illegal materials before this point then they were presumably still/already infringing....but along with some pretty questionable co-operat
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They could even have received note, but even if they did, they still could not destroy evidence. It is like a cop knowing you are drunk and ordering you to drive. Driving drunk is a felony, but disobeying the officer too. Best thing you can do is do as he says and let him explain later why he ordered you to do so.
No, the best thing is to refuse to follow his orders and if he arrests you, to let him explain later why he was ordering you to break the law. Notice in this scenario you don't endanger others by driving drunk.
They had to have (Score:5, Interesting)
There was no due process involved in that case. If the court was not misled, then the court is corrupt and had knowledge of what was going on when the warrants were issued.
Atrocious.
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well, the DOJ is now saying that there were no communications between them and megaupload.
so they didn't notify them of the crimes happening on their servers now? according to doj anyways. of course why the fuck would they have since it never was an american company to begin with..
US DOJ (Score:5, Interesting)
Didn't follow the damm law either.
if you wan't to fight crime i think you need to start in your own ranks first. Everyone involved in this little episode of illegality deserves to goto jail.
It's ironic the biggest criminals in this case... Were the people making the case. Broke actual long standing laws internationally. Not iffy 'infringment' things you could argue either way.
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It's ironic the biggest criminals in this case... Were the people making the case.
That's not ironic, that's to be expected. The US government is one of the largest criminal organizations in the world.
The government lies and gets caught all the time (Score:4, Interesting)
The government lies and gets caught all the time. There is almost zero recourse for it.
Here is as much recourse as I have ever seen and I have looked:
http://www.v-serv.com/usr/ATFE-03-16-09.pdf
JJ
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The government lies and gets caught all the time. There is almost zero recourse for it.
That second sentence there is the #1 argument for libertarianism. Not that private stuff is always better or more efficient, but when things go wrong with the government, they really can go wrong. And there's not much you can do about it.
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WTF is it with you selfish anarchists wrapping up in a flag and taking the name of Liberty in vain?
federal copyright enforcement (Score:5, Insightful)
You get these kinds of problems with criminal copyright infringement charges from the federal government: they are subject to political pressures by various powerful industry groups, they have extremely high costs for the targets even if unsuccessful, but the people responsible can't be held accountable. Criminal penalties for copyright infringement should just be abolished; they serve no useful purpose.
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But, then they would say so. (Score:5, Interesting)
This is a non-event - prosecutors basically never admit error, until they are forced to.
On this subject, there is a White House petition to Remove United States District Attorney Carmen Ortiz from office for overreach in the case of Aaron Swartz [whitehouse.gov].
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On this subject, there is a White House petition to Remove United States District Attorney Carmen Ortiz from office for overreach in the case of Aaron Swartz.
I should sign it, of course -- but I do wonder if she will get to write a response to that petition
(why not, it would be only fair, since TSA director got to respond to the "ban TSA" petition).
Baseless? (Score:2)
Not to be on the side of the Government, but... (Score:2)
This conundrum seems to be pretty simple if you think about "evidence" versus "a business model."
If the government tells you NOT to delete infringing content -- that doesn't mean you have to MAKE IT AVAILABLE. So it really isn't a contradiction for the government is they go after files that got a DMCA take down notice but were still available for download.
If they made the issue about "don't delete" and then penalize them for not deleting -- that's pretty stupid, and they've killed their case.
It seems strang
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Believe it or not, it's actually not that simple. The government did not merely ask Megaupload to not delete evidence - they asked Megaupload to avoid doing anything that might alert anyone that there was even an investigation. Actually, the government asked Carpathia to ask Megaupload. Go figure...
Too much stench (Score:3)
Given the corrupt stench pervading this whole sorry affair, I'm finding it hard to believe anything coming from the prosecution.
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Given the corrupt stench pervading this whole sorry affair, I'm finding it hard to believe anything coming from the prosecution.
yeah, no shit. Megaupload has been saying lets do this in court from the get go. And the USA has been doing what it can to avoid court, after what appears to be a bunch of illegal activities getting the evidence over here.
My guess is this never goes to court.
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My guess is this never goes to court.
They do not need it to go to court.
Megaupload is dead and buried -- and others have probably learned their lesson: piss off the wrong people and you will be wiped out, no matter what the law says.
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No need for courts.
Megaupload is down; mission accomplished.
Other news... (Score:2)
And in other news, ancient romans claim they didn't kill Jesus.
Department of JOKERS (Score:2)
Yeah yeah, DOJ sucks.
Bunch of old farts who think they are god.
Biggest bunch of crooks ever.
Oh and your a bunch of lazy slack old shits in diapers, who dont know what work is. Lets hope the depression hits hard, and you loose your jobs and wifes coz your so poor.
Same folks (Score:3)
Believe them? Nope; not anymore.
You need an... (Score:3)
Internet Lobby that is powerful as the Gun Lobby.
Re:Huh? (Score:5, Insightful)
Re:Huh? (Score:5, Insightful)
Nope. Their argument is that they couldn't lawfully delete evidence once the DOJ made them aware that their servers were under investigation.
Perhaps, but couldn't they have stopped sharing the files or making them available while at the same time not deleting them?
Re:Huh? (Score:5, Insightful)
Maybe. It depends on how clear the DOJ was. The DOJ asks companies to continue hosting forums for instance related to very bad stuff all the time. They aren't just continue to preserve the data. They are asking the companies to keep the forums up so that there investigation can continue unhampered by what otherwise the law requires them to take down.
Re:Huh? (Score:5, Interesting)
Maybe. It depends on how clear the DOJ was. The DOJ asks companies to continue hosting forums for instance related to very bad stuff all the time. They aren't just continue to preserve the data. They are asking the companies to keep the forums up so that there investigation can continue unhampered by what otherwise the law requires them to take down.
If that's the case, and the DOJ asked Megaupload to break the law by continuing to share copyrighted materials after a DMCA notice was given, then Megaupload should have demanded the DOJ put their request in writing, and if the DOJ refused, they should have complied with the law and stopped sharing the files. If the DOJ put their request in writing, then Megaupload would be protected now.
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huh?
The original DOJ request to preserve data is documented.
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huh?
The original DOJ request to preserve data is documented.
But did that documented request include continuing to share and/or make the files available?
Re:Huh? (Score:5, Informative)
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.
Re:Huh? (Score:5, Informative)
They actually did that.
Re:Huh? (Score:4, Interesting)
future lesson, accidentally delete data (Score:3)
Yeah accidentally, by inviting 50 people for a party, get the drunkest guy piss on the server.
Whooops, some guy fried the RAID5 server. Awww, so sorry.
Do not trust the DOJ ever.
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Re:Huh? (Score:5, Informative)
no, because the DOJ specifically asked them not to alert the users who uploaded the files.
Re:Huh? (Score:4, Insightful)
Weren't they also directed NOT to let the infringers know that they were under investigation? ...And, wouldn't deleting the files (or making them inaccessible to the true infringers) do EXACTLY that?
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Well, I guess that will be among the things that the court needs to find out. Right now, we only have the words of the to sides, which - highly unsurprisingly - both say what they need to say so it appears they are blameless and the other guy is responsible for everything. The truth seldom turns out to be so simple and binary.
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Perhaps, but couldn't they have stopped sharing the files or making them available while at the same time not deleting them?
Did you even read ANYTHING related to this case? At all?
They were specifically asked not to do anything that would alert owner of the files.
Do you think disabling links to files would alert him, huh?
Re:Huh? (Score:5, Insightful)
"Their servers were under investigation" is only kind of true. The DOJ was reportedly investigating parties other than Megaupload. Their normal procedure was to remove offending files so they could remain compliant under the DMCA. This investigation didn't have anything on Megaupload as they kept close to but never crossing that fine line. And of course, when they were told they could no longer remove the infringing material, they did as they were told in order to assist in the investigation.
I guess it is important to note that the DOJ either didn't know what its left hand was doing (unlikely) or this in indeed entrapment. And just because they said it's not does not make it so. Recently, we have all be seeing more stories of how police and others are not just planting evidence, they are simply making things up!
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My understanding, from reading both Mega's brief and the DOJ response, is that Mega is grasping at straws, but judging by the comments here, is doing so rather effectively. The point of the 'keep things secret' instructions from the DOJ actually only go so far as sealing the search warrant. They were not seeking cooperation from mega or carpathia, they had a court order compelling it. Cooperation was neither here nor there. The point was that they couldn't disclose the existence of the search warrant, as th
Re:Huh? (Score:4, Insightful)
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Re:Huh? (Score:5, Informative)
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)
Exactly.
Re:Huh? (Score:5, Insightful)
It would seem that if Megaupload can produce a copy of the the first mentioned court order, and it pre-dates the raid, that it is case closed.
Re:Huh? (Score:5, Insightful)
The first order was used as evidence in filing the second. There was even a /. story about it.
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Re:Huh? (Score:5, Informative)
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, Insightful)
I have a good friend that got charged for drunk driving when a cop found her sleeping in her running car in the parking lot of a bar. The cop rolled up on her and asked what she was doing. She said she was too drunk to drive and didn't have anyone to come get her. It was 15 degrees out so she started the car and went to sleep. He immediately arrested her despite the fact that she never drove the car anywhere, simply putting the key in the ignition is apparently illegal. When they got back to the station she even blew bellow the legal limit, but she signed a statement describing what had happened which they then used as evidence against her in court and she lost. She spent the night in jail, paid a $1000 fine and lost her license for a year... for doing the right thing.
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. If they can't arrest you, you are uninteresting to them.
Try it, call the police up sometime and report that your car was broken into... or your house... they may show up sometime in the next 12 to 48hrs... maybe... in my city you get to file a report over the phone to an answering machine. Then try calling them and telling them you've got an once of pot. You'll have 3 squad cars in your driveway in under 5 minutes. Welcome to American indeed.
Re:Huh? (Score:5, Informative)
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]
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Why does he need you to make his point!
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I think he was being sarcastic over just how ridiculous the law really is.
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How exactly would my explanation or lack of it change the fact that it's still the law? And a well-exercised law that has been tested in courts with many many attempts to strike it down.
I agree, it's stupid. But it's reality.
Please clarify (Score:3)
Because lots of drunk drivers would use the loophole of claiming not to be driving the vehicle when the police found them to try to escape prosecution.
The "loophole" is that they were in fact not driving? Not sure I get what your point is here.
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This isn't just a "America is a police state!!!11" thing, these laws are incredibly common throughout different countries. The main justification is that Too many drunk drivers pull this off and even if you do it "legitimately", sleeping behind the wheel of a car is generally considered a bad thing to do, even when it isn't running.
Re:Huh? (Score:5, Informative)
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, Interesting)
You studied a case where the DA was stupid enough to submit it as evidence and then the defendant got a good lawyer and fought it. The way that game usually goes is the DA pulls his stunt, plays the tape back for the defendant, then leaves the room... the cops come in and offer a deal for a full confession which the accused who usually has an IQ of 90 takes in panic while the DA's out in the hall throwing his original tape in the trash. As long as the DA and arresting officer are buddies no-ones the wiser.
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Re:Huh? (Score:4, Informative)
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]
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...Then try calling them and telling them you've got an once of pot. You'll have 3 squad cars in your driveway in under 5 minutes. Welcome to American indeed.
Not where I live. Yeah Washington State!!!!
And it's welcome to America, not American. Comrade!
Re:Huh? (Score:5, Funny)
Try it, call the police up sometime and report that your car was broken into... or your house... they may show up sometime in the next 12 to 48hrs... maybe... in my city you get to file a report over the phone to an answering machine. Then try calling them and telling them you've got an once of pot. You'll have 3 squad cars in your driveway in under 5 minutes. Welcome to American indeed.
Reminds me of a humorous story many of you are probably familiar with:
Going to bed the other night, I noticed people in my shed stealing things.
I phoned the police but was told no one was in the area to help. They said they would send someone over as soon as possible.
I hung up. A minute later I rang again. 'Hello,' I said, 'I called you a minute ago because there were people in my shed. You don't have to hurry now, because I've shot them.'
Within minutes there were half a dozen police cars in the area, plus helicopters and an armed response unit. They caught the burglars red-handed.
One of the officers said: 'I thought you said you'd shot them.'
To which I replied: 'I thought you said there was no one available.'
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I meant "Right" as in honerable, honest, best for society... not "right" as in, the correct, best thing for her self interest.
Re:Huh? (Score:5, Insightful)
With a proper legal system those should be the same.
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I hope you're not intending to imply that the legal system in the United States is proper.
If it's 15, starting your car and leaving it in park just to have the heater on so you can stay warm is not drunk driving.
Legally it may be *considered* drunk driving, but it's not.
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Re:Huh? (Score:5, Insightful)
Except that according to his story, she wasn't even over the limit. However by her admission, she signed a document recalling the events, her admission of feeling impaired enough to convict her.
In the US, people are taught to trust the police from childhood and onward. To the average person, it's only the nutters that are screaming about how backwards the police system can be like this, so the usual instinct is to try to be polite and helpful since they don't feel they have done anything wrong. Unfortunately for them, when they do finally end up on the wrong end of a police investigation, they will learn all too well how being helpful is about the worst thing they can do.
So yeah, it was dumb to talk to the police, but most people do not know any better and it is hard to fault them for it. Most people have never even had an encounter with a police officer, let alone been given any reason to personally mistrust them all.
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Sure there's a trade off. Things might turn out better if you talk, you might avoid a fine or whatever. However, the downside can be huge.
There's common sense at work, for a traffic violation admitting you did it when the caught you in the act is fine - the penalties aren't jail terms (I'm not counting DUI offenses at traffic violations) and the cops word that you did it is good enough in court anyway. If they ask questions that require you to remember something you stop talking - after all recollecting inc
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The one time I've been arrested I managed not to sign a confession so I'm way ahead already.
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Heres a tip, claim you have psychosis.
1. they will bring in medics.
2. you will go to a nice place, medicated up.
3. you cant sign anything bad, or be considered of sound mind to self incriminate yourself
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What if you're passed out in the driver's seat, and you or someone else puts your car into gear, you fidget and hit the gas?
Now explain how a parked car in a private parking lot, gets the parking brake released, and the car put into gear by someone who's not awake?
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People do stupid things when drunk.
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"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"
Just get out and push the car.
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I can move my car by pushing it. But I can't steer it without the keys tanks to the assisted direction making nearly impossible to steer without the engine running.
Re:Huh? (Score:5, Informative)
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, Insightful)
Megaupload always had a policy of "if you report a DMCA violating file to us, we will delete it."
The DOJ basically told them, "don't delete any files that are reported to be DMCA violations."
A year later, the DOJ goes to Megaupload and says "you're hosting files that violate the DMCA! You're under arrest!"
Now, Megaupload is saying "we were hosting files that violated the DMCA because the DOJ wouldn't let us delete them!
Play on words (Score:5, Insightful)
"you're hosting files that violate the DMCA! You're under arrest!"
Hosting, as in distributing it as a copyright violation.
""don't delete any files that are reported to be DMCA violations."
Delete as in delete.
So the Megaupload claim rests on an idea that if you don't delete a file, you must then distribute it over the internet. A false dichotomy. It's quite a ludicrous claim, and the comments in this thread show a lot of people want this play on words to have substance, but it doesn't.
No judge will go along with that, the DMCA is a TAKEDOWN notice, not a delete evidence notice. This is a PR thing, not a legal thing, it's not for a judge, it's to make headlines which might (like Slashdot summary) might conflate deleting a file, with hosting and distributing a file.
Re:Play on words (Score:4, Informative)
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"you're hosting files that violate the DMCA! You're under arrest!"
Hosting, as in distributing it as a copyright violation.
""don't delete any files that are reported to be DMCA violations."
Delete as in delete.
So the Megaupload claim rests on an idea that if you don't delete a file, you must then distribute it over the internet. A false dichotomy. It's quite a ludicrous claim, and the comments in this thread show a lot of people want this play on words to have substance, but it doesn't.
No judge will go along with that, the DMCA is a TAKEDOWN notice, not a delete evidence notice. This is a PR thing, not a legal thing, it's not for a judge, it's to make headlines which might (like Slashdot summary) might conflate deleting a file, with hosting and distributing a file.
Oh, another one that hasn't ready anything about the case but feels comfortable commenting on it.
They were specifically asked to not do anything that would spook the owner of the files. Do you think making the file unavailable is the right thing to do, while being told by DOJ not to spook the owner?
Your comment is, obviously, full of "substance".
I mean, it is amazing how many idiots still can't figure out that DOJ has told Mega not to spook the owner, basically. But they still keep suggesting that Mega shou
Re:Huh? (Score:5, Informative)
No, the argument was that they were asked to keep the files as they were pursuant to a separate investigation.
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Their argument is that they were told that the DOJ wanted the files preserved specifically so that the copyright-infringers would not know an investigation was on-going.
The DOJ's argument is they never actually told Megaupload that because they never talked to Megaupload. The people the DOJ talked to were the people running Megaupload's servers (Carpathia, IIRC), those people are the ones who actually told Megaupload not to delete the files.
I suspect that legally the DOJ actually has a pretty strong case. I
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Re:You LIE DoJ (Score:5, Interesting)
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Correction it is not theft as the original owner still has his copy it is copyright infringement, other wise you are steeling every time you use a photocopier