21 ms·

Megaupload: A Lot Less Guilty Than You Think

352 points by privacyguru 15y ago

victork2 15y ago
Even if I don't trust the justice system in the US I really hope that the FBI will fail their investigation and will have wasted a ton on money on this. Even better that they are found convicted of wrongfully use of power or something approaching that. (I never said that Megaupload is innocent though, but I like well followed procedures, they are the guardians of our liberties)
- joering2 15y ago
  My gut tells me so much money went into this multi-national synchronized operation that no judge in his sound mind will let all charges go. at least they will have to break even.
  - ovi256 15y ago
    So as long as enough money is spent, it doesn't matter if it's wrong ? Yay.
    - phillmv 15y ago
      Not really, the same with any organization - if the people who made the decisions lose face, they will double down before sunk costs. The comparison in this case might have the prosecutor go after some lesser charge just to stick anything in order to justify the huge operation in the first place.
      - dodedo 15y ago
        This is precisely why there is a separation between the executive and judicial branches of government. Unfortunately I do agree they're not as separate as we might wish.
  - jordan0day 15y ago
    I don't know, I think there have been some high-profile cases where a lot of time and money was spent by the government, but the result was either no conviction, or a conviction of a much lesser charge. Now, since as you say, this was a large multi-national operation, I don't know if all those charged will be extradited to the USA, or if they'll be tried in other countries. I really have no idea about laws & procedures around the globe, but if they are extradited to the USA, I wouldn't count the MegaUpload folks out just yet. It's probably very dependent on how much of their assets are frozen, which will affect how much of their money they can spend on legal representation. (I say unfortunately, because it seems to me that in an ideal justice system, everyone should have the same level [high!] of representation, rather than some being able to "buy" better lawyers).
    - bostonpete 15y ago
      So capitalism is good except when it comes to lawyers...?
      - saucetenuto 15y ago
        Yeah, pretty much. One of the essential principles of Western democracy is that everyone should be equal under the law, that what is a crime for a peasant should also be a crime for a noble. If you can use money to purchase better legal outcomes (through e.g. better legal representation), that principle is undermined.
      - jordan0day 15y ago
        Basically what saucetenuto said. In the USA at least, much of our government could function nearly the same regardless of if our market system is completely laissez-faire capitalism, or hardcore communist. In fact, you could argue that government and its' systems, like the judicial system should be completely devoid of any possibility for profit motives. Since, as saucetenuto states, those undermine the system. Now, I don't want to get into an argument about whether good lawyers deserve to get paid better than bad lawyers, etc. But I don't think I'd want to meet the person who sees the justice inequality between rich and poor defendants and thinks "All is as it should be."
  - scott_s 15y ago
    What do you mean by "no judge in his sound mind will let all charges go"? Do you mean that no judge would dismiss the charges before trial? I agree that is unlikely, but it's a rare thing for a judge to do that. But outside of that, it's not up to the judge. It's a criminal case, and they will be tried by a jury. If they're convicted, the judge will determine their sentence. But it's not up to the judge to determine their guilt. (Unless the defendants forgo a jury trial and elect for a trial by judge, but I doubt they will.)
- scott_s 15y ago
  The sentiment that due process was not followed has come up multiple times. Is that what you mean by "well followed procedures"? If so, how did they violate due process? I am unaware of any way that they did. (Note that I am using "due process" to mean "due process as dictated by law" not "what I think is fair" or "the way I think things should be.") This article is really about the merits of the case, which is separate from the question of following due process upon arrest and indictment.
  - victork2 15y ago
    Well yes the fact that they are dead even before any judgement has been pronounced is quite infuriating. It's not a coincidence that money is seized and their domain name taken, it's made to destroy the website even before any kind of judgement can roll out. I may be the only one but I find that outrageous. But if the FBI loses this case and its image is tarnished then it could be a precedent and may change the way these copyright infringement cases are conducted. I am not american and I would hate to see the FBI take away my startup business on the ground that I am violating copyrights because of my users.
    - adgar 15y ago
      So you're saying that the FBI should be allowed to arrest a business's operators and seize equipment that they believe are violating the law... but leave the business (which they believe is illegal) to keep running somehow? The FBI will attempt to prove that MegaUpload was an illegal business. Why should they just let it keep running if that is the case?
      - plorkyeran 15y ago
        Why should the FBI be able to shut down a company without proving that the company is illegal first?
        josefresco 15y ago
        I think the reasoning the feds use is it prevents the suspect from destroying evidence, and/or stops the activity from continuing to 'harm' the public.
normalfaults 15y ago
Wasn't this article up on HN a couple of days ago from another site?
- krigath 15y ago
  http://news.ycombinator.com/item?id=3515739 http://news.ycombinator.com/item?id=3515739 http://www.granick.com/blog/?p=739 http://www.granick.com/blog/?p=739
  - _k 15y ago
    Thanks for the link to Jennifer's site, where the conversation started.
- deleted 15y ago
  [deleted]
- sycren 15y ago
  Yes but perhaps Stanford Law is a better primary source for this topic?
  - maxerickson 15y ago
    She is general council for a company that would really like a 'hey we tried' interpretation of the DMCA [1] and only a 'Non Resident Fellow', so I'm not sure I would read the posting as having the full editorial weight of Stanford Law. [1] http://www.vibe.com/content/worldstarhiphop-exposed-truth-behind-controversial-site http://www.vibe.com/content/worldstarhiphop-exposed-truth-be...
    - inf0000 15y ago
      Jennifer Granick used to be the Director of Stanford's Center for Internet and Society. She still teaches at Stanford Law regularly, and she was previously Civil Liberties director at EFF and counsel at a boutique Internet law firm. I don't know what you mean by "editorial weight" here, but you certainly shouldn't discount anything the author says on account of where she works or her current affiliation with the Center for Internet and Society.
deleted 15y ago
[deleted]
shahed0112 15y ago
very good.
franklindholm 15y ago
What kind of DMCA system did Megaupload provide? And what kind of DMCA system is required by law?
- nkassis 15y ago
  Well if you read the article that doesn't matter in this case since it's a criminal case not civil (in which it could be argued that the system in place was inadequate). The article claims that what needs to be shown is intent on violating the DMCA requirements which I'm not sure the FBI has that strong of a case about. They had a system in place and responded to request showing that they were at the very least doing the bare minimum to comply and thus weren't (in my opinion, with what I know), blatantly trying to violate the DMCA.
  - franklindholm 15y ago
    Yes I understand the argument put forward in the article, but I was curious about the steps Megaupload took to try to conform with US law. All of this is crazy, and the point in the article is very much valid in my opinion, on the other hand if the copyright holder allegedly affected were to sue Megaupload in a civil case in the country that Megaupload operates from then that would be perfectly fine in my opinion. I don't agree with the copyright laws that exist at the moment, but everyone should have the right to try to protect their rights in court, even if I don't personally agree with the law. The reason I asked about what steps Megaupload made to comply with DMCA complaints, and what the law says about DMCA take downs, was out of curiosity about the legal landscape and the chances of Megaupload in this case, even though it shouldn't be a criminal case.
- unreal37 15y ago
  Apparently they responded to DMCA requests to take down individual links. But they did nothing to stop the same file from being uploaded again with a new link. I am not sure if that is required by the DMCA. I know youtube has this "fingerprinting" system that stops copyrighted uploads, but is that the law?
  - 15y ago
wyck 15y ago
I know this might sound like a conspiracy theory, but why did kim dotcom host servers in the U.S., clearly he knew about the issues that would present, so maybe he wanted to test the system legally and get a bit of spotlight for himself, the scapegoat turned avenger?
- sycren 15y ago
  perhaps he has more paying customers in the US and so it makes sense to keep some servers in the US to distribute content more efficiently
- nikcub 15y ago
  MegaUpload ran a net profit margin of around 40%. Hosting anywhere else probably would have wiped a lot of that out. Their main competitive advantage was download speeds in the USA - if you read online comments there was constant bitching about the speeds of other sites vs Megaupload. But forget the download servers being hosted in Virginia - what is much much worse is that they hosted their email servers at the same colo. This entire case and almost all of the evidence is built up around the contents of that email server. The feds obtained a secret warrant to get the details and most of the facts in the indictment are based on what they found. I wrote about this here: http://nikcub.appspot.com/posts/how-megaupload-was-investigated-and-indicted http://nikcub.appspot.com/posts/how-megaupload-was-investiga... I hope this case makes it to a trial because I would like to find out what probable cause was used to obtain the warrant to handover the email server.
  - scott_s 15y ago
    That's a rational, measured assessment. You bring up an excellent point at the end: if all of their evidence is from the emails, how did they get the warrant to obtain the emails? I submitted it, but it looks like you already did so last week, and it didn't get much attention. I hope more people can see it from this thread.
    - nikcub 15y ago
      Thanks. I have resubmitted it, assuming that is ok to do. http://news.ycombinator.com/item?id=3529536 http://news.ycombinator.com/item?id=3529536 I have also been spending some time reading over the Viacom vs YouTube case. The parallels between it and Megaupload are striking - the difference being that Megaupload is a criminal case while YouTube was a civil case. I found that the YouTube internal emails were much more incriminating than the MegaUpload emails. I plan on writing up the details of the emails and other parallels between the two cases sometime this week.
deleted 15y ago
[deleted]
powertower 15y ago
If you think MU is the victim here and that the FBI are the criminals, you’ve got it backwards. They took down individual links only, while still keeping the infringing files on the server, and all the other un-reported links to that exact file (they also hashed each upload, so to detect duplicates, and complete the upload instantly and have 1 data file... a fingerprint system they never used to prevent re-uploads of copyrighted material that was reported). Then they conspired (shown in leaked emails) to only follow DMCA requests coming from large US entities (while ignoring requests coming from Mexico, for example). Their entire business revolved around tricking people into signing up for paid accounts so they could download copyrighted material. And made 175 million from it.
- OoTheNigerian 15y ago
  As you have judged them guilty based on the charges brought against them, I wonder why we need the law courts.
  - powertower 15y ago
    I've made an assessment based on the evidence provided, and my own experience. And MU will have their day in a US court of law, based on a system that's the worst in the world, except for all the others.
- jonknee 15y ago
  Removing individual links makes sense--if someone filed a DMCA request with Dropbox for a song and it ended up getting removed from my Dropbox as well that would be ridiculous. In the case of something that is always illegal (say child porn) there would be a duty to remove all instances of a file, but when it's a case by case basis of whether or not there is a copyright issue it does not make sense to take files down en masse. Remember that uploads to MU were private--you received a secret link.
  - powertower 15y ago
    > but when it's a case by case basis of whether or not there is a copyright issue it does not make sense to take files down en masse. I disagree. If you're hosting copyrighted material that I own, and I file a DMCA, I'd expect you to remove that material from the server / to stop hosting it. You just don't get to keep the data file and hide it behind more links.
pnmahoney 15y ago
This is crucial: the difference between the state of mind (mens rea) requirement for the criminal charges, and the clear(!) violations of the civil statutes at hand. Even if, for some reason, this isn't getting Megaupload off the hook, it's worth remembering why exactly this isn't going to (gasp!) destroy that "cloud" thing everyone keeps writing about.
dekz 15y ago
From what I've read about Dotcom he seems like a shady guy. But in all honesty, how is he worth persuing over some drug cartel in a different country. (Note: I'm not making an opinion on whether drugs should be legal or illegal). Was it really worth the potential international relations fiasco, dollars spent on investigators; agents et al. All this wasted time and money to go after a set of people who have allowed internet users to write 1's and 0's and share them. Oh the humanity! How can these people be allowed to live. /s The time for cyber villans is not now, when the streets are still full of their ancestors.
- rbanffy 15y ago
  Considering some people will neither stop doing drugs nor sharing copyrighted files against the copyright holders' will, the authorities felt they could go against the folks who were least likely to shoot back. Now, seriously, comparing the amount of misery illegal drugs cause with the amount illegal file sharing does is, at best, ludicrous. It's like all the more serious problems are solved and now they have to turn their attention to the copyright infringers.

352 points by privacyguru 15y ago

Even if I don't trust the justice system in the US I really hope that the FBI will fail their investigation and will have wasted a ton on money on this. Even better that they are found convicted of wrongfully use of power or something approaching that. (I never said that Megaupload is innocent though, but I like well followed procedures, they are the guardians of our liberties)

joering2 15y ago
My gut tells me so much money went into this multi-national synchronized operation that no judge in his sound mind will let all charges go. at least they will have to break even.
- ovi256 15y ago
  So as long as enough money is spent, it doesn't matter if it's wrong ? Yay.
  - phillmv 15y ago
    Not really, the same with any organization - if the people who made the decisions lose face, they will double down before sunk costs. The comparison in this case might have the prosecutor go after some lesser charge just to stick anything in order to justify the huge operation in the first place.
    - dodedo 15y ago
      This is precisely why there is a separation between the executive and judicial branches of government. Unfortunately I do agree they're not as separate as we might wish.
- jordan0day 15y ago
  I don't know, I think there have been some high-profile cases where a lot of time and money was spent by the government, but the result was either no conviction, or a conviction of a much lesser charge. Now, since as you say, this was a large multi-national operation, I don't know if all those charged will be extradited to the USA, or if they'll be tried in other countries. I really have no idea about laws & procedures around the globe, but if they are extradited to the USA, I wouldn't count the MegaUpload folks out just yet. It's probably very dependent on how much of their assets are frozen, which will affect how much of their money they can spend on legal representation. (I say unfortunately, because it seems to me that in an ideal justice system, everyone should have the same level [high!] of representation, rather than some being able to "buy" better lawyers).
  - bostonpete 15y ago
    So capitalism is good except when it comes to lawyers...?
    - saucetenuto 15y ago
      Yeah, pretty much. One of the essential principles of Western democracy is that everyone should be equal under the law, that what is a crime for a peasant should also be a crime for a noble. If you can use money to purchase better legal outcomes (through e.g. better legal representation), that principle is undermined.
    - jordan0day 15y ago
      Basically what saucetenuto said. In the USA at least, much of our government could function nearly the same regardless of if our market system is completely laissez-faire capitalism, or hardcore communist. In fact, you could argue that government and its' systems, like the judicial system should be completely devoid of any possibility for profit motives. Since, as saucetenuto states, those undermine the system. Now, I don't want to get into an argument about whether good lawyers deserve to get paid better than bad lawyers, etc. But I don't think I'd want to meet the person who sees the justice inequality between rich and poor defendants and thinks "All is as it should be."
- scott_s 15y ago
  What do you mean by "no judge in his sound mind will let all charges go"? Do you mean that no judge would dismiss the charges before trial? I agree that is unlikely, but it's a rare thing for a judge to do that. But outside of that, it's not up to the judge. It's a criminal case, and they will be tried by a jury. If they're convicted, the judge will determine their sentence. But it's not up to the judge to determine their guilt. (Unless the defendants forgo a jury trial and elect for a trial by judge, but I doubt they will.)
scott_s 15y ago
The sentiment that due process was not followed has come up multiple times. Is that what you mean by "well followed procedures"? If so, how did they violate due process? I am unaware of any way that they did. (Note that I am using "due process" to mean "due process as dictated by law" not "what I think is fair" or "the way I think things should be.") This article is really about the merits of the case, which is separate from the question of following due process upon arrest and indictment.
- victork2 15y ago
  Well yes the fact that they are dead even before any judgement has been pronounced is quite infuriating. It's not a coincidence that money is seized and their domain name taken, it's made to destroy the website even before any kind of judgement can roll out. I may be the only one but I find that outrageous. But if the FBI loses this case and its image is tarnished then it could be a precedent and may change the way these copyright infringement cases are conducted. I am not american and I would hate to see the FBI take away my startup business on the ground that I am violating copyrights because of my users.
  - adgar 15y ago
    So you're saying that the FBI should be allowed to arrest a business's operators and seize equipment that they believe are violating the law... but leave the business (which they believe is illegal) to keep running somehow? The FBI will attempt to prove that MegaUpload was an illegal business. Why should they just let it keep running if that is the case?
    - plorkyeran 15y ago
      Why should the FBI be able to shut down a company without proving that the company is illegal first?
      - josefresco 15y ago
        I think the reasoning the feds use is it prevents the suspect from destroying evidence, and/or stops the activity from continuing to 'harm' the public.

normalfaults 15y ago

Wasn't this article up on HN a couple of days ago from another site?

krigath 15y ago
http://news.ycombinator.com/item?id=3515739 http://news.ycombinator.com/item?id=3515739 http://www.granick.com/blog/?p=739 http://www.granick.com/blog/?p=739
- _k 15y ago
  Thanks for the link to Jennifer's site, where the conversation started.
deleted 15y ago
[deleted]
sycren 15y ago
Yes but perhaps Stanford Law is a better primary source for this topic?
- maxerickson 15y ago
  She is general council for a company that would really like a 'hey we tried' interpretation of the DMCA [1] and only a 'Non Resident Fellow', so I'm not sure I would read the posting as having the full editorial weight of Stanford Law. [1] http://www.vibe.com/content/worldstarhiphop-exposed-truth-behind-controversial-site http://www.vibe.com/content/worldstarhiphop-exposed-truth-be...
  - inf0000 15y ago
    Jennifer Granick used to be the Director of Stanford's Center for Internet and Society. She still teaches at Stanford Law regularly, and she was previously Civil Liberties director at EFF and counsel at a boutique Internet law firm. I don't know what you mean by "editorial weight" here, but you certainly shouldn't discount anything the author says on account of where she works or her current affiliation with the Center for Internet and Society.

deleted 15y ago

[deleted]

shahed0112 15y ago

very good.

franklindholm 15y ago

What kind of DMCA system did Megaupload provide? And what kind of DMCA system is required by law?

nkassis 15y ago
Well if you read the article that doesn't matter in this case since it's a criminal case not civil (in which it could be argued that the system in place was inadequate). The article claims that what needs to be shown is intent on violating the DMCA requirements which I'm not sure the FBI has that strong of a case about. They had a system in place and responded to request showing that they were at the very least doing the bare minimum to comply and thus weren't (in my opinion, with what I know), blatantly trying to violate the DMCA.
- franklindholm 15y ago
  Yes I understand the argument put forward in the article, but I was curious about the steps Megaupload took to try to conform with US law. All of this is crazy, and the point in the article is very much valid in my opinion, on the other hand if the copyright holder allegedly affected were to sue Megaupload in a civil case in the country that Megaupload operates from then that would be perfectly fine in my opinion. I don't agree with the copyright laws that exist at the moment, but everyone should have the right to try to protect their rights in court, even if I don't personally agree with the law. The reason I asked about what steps Megaupload made to comply with DMCA complaints, and what the law says about DMCA take downs, was out of curiosity about the legal landscape and the chances of Megaupload in this case, even though it shouldn't be a criminal case.
unreal37 15y ago
Apparently they responded to DMCA requests to take down individual links. But they did nothing to stop the same file from being uploaded again with a new link. I am not sure if that is required by the DMCA. I know youtube has this "fingerprinting" system that stops copyrighted uploads, but is that the law?
- 15y ago

wyck 15y ago

I know this might sound like a conspiracy theory, but why did kim dotcom host servers in the U.S., clearly he knew about the issues that would present, so maybe he wanted to test the system legally and get a bit of spotlight for himself, the scapegoat turned avenger?

sycren 15y ago
perhaps he has more paying customers in the US and so it makes sense to keep some servers in the US to distribute content more efficiently
nikcub 15y ago
MegaUpload ran a net profit margin of around 40%. Hosting anywhere else probably would have wiped a lot of that out. Their main competitive advantage was download speeds in the USA - if you read online comments there was constant bitching about the speeds of other sites vs Megaupload. But forget the download servers being hosted in Virginia - what is much much worse is that they hosted their email servers at the same colo. This entire case and almost all of the evidence is built up around the contents of that email server. The feds obtained a secret warrant to get the details and most of the facts in the indictment are based on what they found. I wrote about this here: http://nikcub.appspot.com/posts/how-megaupload-was-investigated-and-indicted http://nikcub.appspot.com/posts/how-megaupload-was-investiga... I hope this case makes it to a trial because I would like to find out what probable cause was used to obtain the warrant to handover the email server.
- scott_s 15y ago
  That's a rational, measured assessment. You bring up an excellent point at the end: if all of their evidence is from the emails, how did they get the warrant to obtain the emails? I submitted it, but it looks like you already did so last week, and it didn't get much attention. I hope more people can see it from this thread.
  - nikcub 15y ago
    Thanks. I have resubmitted it, assuming that is ok to do. http://news.ycombinator.com/item?id=3529536 http://news.ycombinator.com/item?id=3529536 I have also been spending some time reading over the Viacom vs YouTube case. The parallels between it and Megaupload are striking - the difference being that Megaupload is a criminal case while YouTube was a civil case. I found that the YouTube internal emails were much more incriminating than the MegaUpload emails. I plan on writing up the details of the emails and other parallels between the two cases sometime this week.

deleted 15y ago

[deleted]

powertower 15y ago

If you think MU is the victim here and that the FBI are the criminals, you’ve got it backwards. They took down individual links only, while still keeping the infringing files on the server, and all the other un-reported links to that exact file (they also hashed each upload, so to detect duplicates, and complete the upload instantly and have 1 data file... a fingerprint system they never used to prevent re-uploads of copyrighted material that was reported). Then they conspired (shown in leaked emails) to only follow DMCA requests coming from large US entities (while ignoring requests coming from Mexico, for example). Their entire business revolved around tricking people into signing up for paid accounts so they could download copyrighted material. And made 175 million from it.

OoTheNigerian 15y ago
As you have judged them guilty based on the charges brought against them, I wonder why we need the law courts.
- powertower 15y ago
  I've made an assessment based on the evidence provided, and my own experience. And MU will have their day in a US court of law, based on a system that's the worst in the world, except for all the others.
jonknee 15y ago
Removing individual links makes sense--if someone filed a DMCA request with Dropbox for a song and it ended up getting removed from my Dropbox as well that would be ridiculous. In the case of something that is always illegal (say child porn) there would be a duty to remove all instances of a file, but when it's a case by case basis of whether or not there is a copyright issue it does not make sense to take files down en masse. Remember that uploads to MU were private--you received a secret link.
- powertower 15y ago
  > but when it's a case by case basis of whether or not there is a copyright issue it does not make sense to take files down en masse. I disagree. If you're hosting copyrighted material that I own, and I file a DMCA, I'd expect you to remove that material from the server / to stop hosting it. You just don't get to keep the data file and hide it behind more links.

pnmahoney 15y ago

This is crucial: the difference between the state of mind (mens rea) requirement for the criminal charges, and the clear(!) violations of the civil statutes at hand. Even if, for some reason, this isn't getting Megaupload off the hook, it's worth remembering why exactly this isn't going to (gasp!) destroy that "cloud" thing everyone keeps writing about.

dekz 15y ago

From what I've read about Dotcom he seems like a shady guy. But in all honesty, how is he worth persuing over some drug cartel in a different country. (Note: I'm not making an opinion on whether drugs should be legal or illegal). Was it really worth the potential international relations fiasco, dollars spent on investigators; agents et al. All this wasted time and money to go after a set of people who have allowed internet users to write 1's and 0's and share them. Oh the humanity! How can these people be allowed to live. /s The time for cyber villans is not now, when the streets are still full of their ancestors.

rbanffy 15y ago
Considering some people will neither stop doing drugs nor sharing copyrighted files against the copyright holders' will, the authorities felt they could go against the folks who were least likely to shoot back. Now, seriously, comparing the amount of misery illegal drugs cause with the amount illegal file sharing does is, at best, ludicrous. It's like all the more serious problems are solved and now they have to turn their attention to the copyright infringers.