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This is more of a PR stunt than a winning legal strategy. 1. The US government has sovereign immunity (except where specifically waived by law) for virtually a

This is more of a PR stunt than a winning legal strategy. 1. The US government has sovereign immunity (except where specifically waived by law) for virtually all its official acts, unless those acts violate the law or constitutional rights. 2. The supreme court has affirmed in a somewhat similar case, Kosak v. US, 465 U.S. 848 (1984), in which a set of paintings were detained (and possibly slightly damaged) by Customs officials. More recently, the core holding in Kosak was affirmed in Dolan v. US, a case regarding a specific waiver of immunity for the US Postal Service (though the lower court was reversed). 3. In a recent series of cases on criminal law (Medellin v. Texas, among others), a majority of the Court made it clear that they do not view decisions of the International Criminal Court as self-executing, meaning that they are to be followed without the ability for the Supreme Court to review them. In other words, this is a real longshot. At some point, if no criminal case can be proved, the accused may get the servers back (and the users their files). But if convicted (or if the assets are subject to foreiture as the fruit of illegal activity), there's a good chance those servers are gone for good. Besides, how would the FBI establish that the files were non-infringing and should be returned? In theory, the DMCA helps guard against this--had MegaUpload actually followed the takedown procedures, the government could have more faith that returning the servers to a surviving entity wouldn't put the same infringing content back online. Imagine a scenario where your financial advisor has control of some of your money and also happens to be a drug dealer or insider trader. The police bust him and seize his assets, but because money is fungible they can't tell exactly where all the cash came from. Your money is frozen pending the outcome of the case and a determination which assets should be released. You can sue the accountant (he had a duty to you), but suing the government isn't going to get you very far. Not exactly the same, but analogous, to my mind.

mc32 15y ago
>You can sue the accountant (he had a duty to you) That's how I see it. They're probably under better legal standing suing MU over gross fiduciary misconduct, etc.
- kingkilr 15y ago
  The MU terms of service specifically said there were no guarantees about upload lifetime (or something to that effect).
Natsu 15y ago
This isn't like money, you can tell whose files are whose: people have their login information and could be permitted to download those files they uploaded in the first place. And why would people want infringing files back, anyhow? They could just download those from somewhere else. Also, it wouldn't be too bright to tell the courts that you wanted some pirated files back. The files that nobody else had a copy of are the ones that people will need returned to them.
- tedunangst 15y ago
  People were using megaupload as a backup service? They don't have the originals anymore?
  - Natsu 15y ago
    There have been quotes from people who lost their files in the stories about this. Why go to all that trouble to fight the FBI if you still have your files? Doubly so if these folks were some kind of pirates, because that's sort of like painting a giant target on their back.
    - Tyrannosaurs 15y ago
      My issue with this (other than the stupidity of not backing up an important file) is that I bet that the MegaUpload ToS (sadly not available right now) stipulate that they're not liable for any file loss. If that's the case I don't think it would be unreasonable for the FBI to say that anyone having lost files has only themselves to blame as this wasn't any sort of guaranteed storage medium.
      - archangel_one 15y ago
        I don't think MU disclaiming responsibility for file loss automatically means the FBI should be able to come in and pinch them all without consequence. Every shopping centre has a sign in their carpark saying that they don't take liability for any damage to cars parked there, but if someone drives into your car in one they're still liable for damages, despite there not being any guarantee of security originally.
knieveltech 15y ago
Excellent post. Out of idle curiosity, are you putting a degree in law to specific use these days or is this area of the law simply a hobby for you?
- hncommenter13 15y ago
  Thanks, nice of you to say. I do not have a law degree, so I'm (obviously) not a lawyer. Since you asked, I am fascinated by legal issues, and during long commutes I listened to hundreds of hours of Supreme Court oral arguments from Oyez, followed by reading many of the decisions. Also, almost every close relative is a lawyer, law professor, and/or in law enforcement. Dinner time conversation as a kid was Constitutional law. The arguments, decisions and doctrines are generally far more accessible than most of us lay people are tend to believe. In other words, I suppose I "play one on the internet," but I try to cite such statements to real lawyers/decision text (rather than arguing from experience or belief).
m_for_monkey 15y ago
"The US government has sovereign immunity [...] unless those acts violate the law..." That's what the trial is about. "...how would the FBI establish that the files were non-infringing...?" Exactly like Megaupolad.
- hncommenter13 15y ago
  Sovereign immunity is a pretty well settled concept at the Federal level (especially with regard to law enforcement and foreign relations), with a few exceptions. As a result, even if all of the plaintiff's claims were factually true as alleged--the posture assumed in pre-trial motions--I believe the agents acting in their official capacities would likely be found to have immunity. There is the possibility of a Section 1983 claim against the officials if 4th amendment rights were found to be violated (which the Court has allowed), "[b]ut government officials performing discretionary functions generally are granted a qualified immunity and are 'shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Wilson v. Layne 526 U.S. 603, 609, 119 S.Ct. 1692, 1696 (U.S.Md.,1999)." [1] [1] http://www.robertslaw.org/4thamend.htm http://www.robertslaw.org/4thamend.htm
  - m_for_monkey 15y ago
    Even if the "agents" won't go to prison, the goal is to get back those files as soon as possible, because those are withheld without good reason.
  - Natsu 15y ago
    Aren't there laws concerning the return of seized property? Or are those inapplicable here? If they had seized a storage company, would the customers not have been able to get their stuff out of the storage sheds?
    - jonhendry 15y ago
      This case is funny. Pirates demanding the return of intellectual property.

mc32 15y ago

>You can sue the accountant (he had a duty to you) That's how I see it. They're probably under better legal standing suing MU over gross fiduciary misconduct, etc.

kingkilr 15y ago
The MU terms of service specifically said there were no guarantees about upload lifetime (or something to that effect).

Natsu 15y ago

This isn't like money, you can tell whose files are whose: people have their login information and could be permitted to download those files they uploaded in the first place. And why would people want infringing files back, anyhow? They could just download those from somewhere else. Also, it wouldn't be too bright to tell the courts that you wanted some pirated files back. The files that nobody else had a copy of are the ones that people will need returned to them.

tedunangst 15y ago
People were using megaupload as a backup service? They don't have the originals anymore?
- Natsu 15y ago
  There have been quotes from people who lost their files in the stories about this. Why go to all that trouble to fight the FBI if you still have your files? Doubly so if these folks were some kind of pirates, because that's sort of like painting a giant target on their back.
  - Tyrannosaurs 15y ago
    My issue with this (other than the stupidity of not backing up an important file) is that I bet that the MegaUpload ToS (sadly not available right now) stipulate that they're not liable for any file loss. If that's the case I don't think it would be unreasonable for the FBI to say that anyone having lost files has only themselves to blame as this wasn't any sort of guaranteed storage medium.
    - archangel_one 15y ago
      I don't think MU disclaiming responsibility for file loss automatically means the FBI should be able to come in and pinch them all without consequence. Every shopping centre has a sign in their carpark saying that they don't take liability for any damage to cars parked there, but if someone drives into your car in one they're still liable for damages, despite there not being any guarantee of security originally.

knieveltech 15y ago

Excellent post. Out of idle curiosity, are you putting a degree in law to specific use these days or is this area of the law simply a hobby for you?

hncommenter13 15y ago
Thanks, nice of you to say. I do not have a law degree, so I'm (obviously) not a lawyer. Since you asked, I am fascinated by legal issues, and during long commutes I listened to hundreds of hours of Supreme Court oral arguments from Oyez, followed by reading many of the decisions. Also, almost every close relative is a lawyer, law professor, and/or in law enforcement. Dinner time conversation as a kid was Constitutional law. The arguments, decisions and doctrines are generally far more accessible than most of us lay people are tend to believe. In other words, I suppose I "play one on the internet," but I try to cite such statements to real lawyers/decision text (rather than arguing from experience or belief).

m_for_monkey 15y ago

"The US government has sovereign immunity [...] unless those acts violate the law..." That's what the trial is about. "...how would the FBI establish that the files were non-infringing...?" Exactly like Megaupolad.

hncommenter13 15y ago
Sovereign immunity is a pretty well settled concept at the Federal level (especially with regard to law enforcement and foreign relations), with a few exceptions. As a result, even if all of the plaintiff's claims were factually true as alleged--the posture assumed in pre-trial motions--I believe the agents acting in their official capacities would likely be found to have immunity. There is the possibility of a Section 1983 claim against the officials if 4th amendment rights were found to be violated (which the Court has allowed), "[b]ut government officials performing discretionary functions generally are granted a qualified immunity and are 'shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Wilson v. Layne 526 U.S. 603, 609, 119 S.Ct. 1692, 1696 (U.S.Md.,1999)." [1] [1] http://www.robertslaw.org/4thamend.htm http://www.robertslaw.org/4thamend.htm
- m_for_monkey 15y ago
  Even if the "agents" won't go to prison, the goal is to get back those files as soon as possible, because those are withheld without good reason.
- Natsu 15y ago
  Aren't there laws concerning the return of seized property? Or are those inapplicable here? If they had seized a storage company, would the customers not have been able to get their stuff out of the storage sheds?
  - jonhendry 15y ago
    This case is funny. Pirates demanding the return of intellectual property.