4 ms·

Can someone with any modicum of legal experience weigh in here? I appreciate that all of these articles are undoubtedly bias in favour of Megaupload however a

by Peroni 14y ago

Can someone with any modicum of legal experience weigh in here? I appreciate that all of these articles are undoubtedly bias in favour of Megaupload however a lot of the facts lead me to believe that it will be near impossible for them to lose. If megaupload do in fact win, surely that will have an immense impact globally? Is it possible to actually quantify the knock on effects of either outcome from a global perspective?

Natsu 14y ago
I don't claim to be a lawyer, but I have read up on this case, including the indictment. As always, if your interest in legal matters is anything but academic curiosity, consult a lawyer. One thing that stands out to me is that most of this argument is against the idea that criminal infringement applies to secondary liability (i.e. faulting these guys for the infringement of others). One problem for them is that the indictment accuses some of them of direct infringement based on some of MU's emails. This can lead to trouble with the NET Act [1], which has the explicit criminal liability they need to extradite here. There are limits, though: they would need to be able to prove that enough infringement had happened to rise to a criminal level. They also have criminal conspiracy charges in there, though I believe those to be predicated on proving some sort of criminal infringement. Note, however, that on the acts of direct infringement, it's possible for not everyone in the group to be involved. For example, one of the emails I remember about locating a pirate copy of some show was between a couple of employees. That wouldn't necessarily implicate Kim himself unless they could connect him to the act. There was a lot of nonsense in the indictment, though, trying to make everything sound like it had a criminal motive. Some of the same allegations made in it could be repeated against sites like YouTube, for example. The indictment did, however, contain quite a few emails that made the Mega group look pretty bad. I believe their lawyers already addressed those, saying that their words were being twisted around. Ultimately, I think this is going to be a fairly unpredictable case. [1] https://en.wikipedia.org/wiki/NET_Act https://en.wikipedia.org/wiki/NET_Act
- Symmetry 14y ago
  The problem with the actual charges, from what I read, is that the emails show that MegaUpload was trying to do the absolute minimum necceesary to comply with the DMCA. They were, in fact, not actually living up to everything that they had to do to under the DMCA and are thus guilty of copyright infringement under civil law, but the government decided to press criminal charges instead, and making a good faith effort to abide by the DMCA is enough to get out of those charges. EDIT: A better explanation: http://arstechnica.com/tech-policy/2012/02/is-megaupload-a-lot-less-guilty-than-you-think/ http://arstechnica.com/tech-policy/2012/02/is-megaupload-a-l...
  - debacle 14y ago
    > MegaUpload was trying to do the absolute minimum necceesary to comply with the DMCA. They are completely within their legal right to do so.
  - tzs 14y ago
    > The problem with the actual charges, from what I read, is that the emails show that MegaUpload was trying to do the absolute minimum necceesary to comply with the DMCA I'd change that to "trying to do the absolute minimum necessary to APPEAR to comply with the DMCA, if the request was from a party that had enough legal resources to make trouble". If they had one copy of your file stored without authorization on their servers, but it was accessible through, say, 5 different URLs, their response to a DMCA takedown request was to make the specific URL you knew about invalid, but to leave the file up and leave the rest of the URLs working. That's why I say "appear" to comply. When they were first shutdown, there were first person reports here on HN from small developers who had their takedown requests ignored, which is why I suspect that you had to be someone reasonably big for them to even bother to try to appear to comply.
    - Natsu 14y ago
      I believe that they compensated people for putting up files as well. It's not impossible to have a case where you want the copies of your files put up by some other uploader taken down without wanting your own removed. The fact that one copy was put up without permission does not necessarily mean they all were, though that's probably the case 99% of the time. Of course, depending on how you read the DMCA, they may have been obligated to do that anyhow. We'll have to see how it all plays out in court.

by Peroni 14y ago

Natsu 14y ago

I don't claim to be a lawyer, but I have read up on this case, including the indictment. As always, if your interest in legal matters is anything but academic curiosity, consult a lawyer. One thing that stands out to me is that most of this argument is against the idea that criminal infringement applies to secondary liability (i.e. faulting these guys for the infringement of others). One problem for them is that the indictment accuses some of them of direct infringement based on some of MU's emails. This can lead to trouble with the NET Act [1], which has the explicit criminal liability they need to extradite here. There are limits, though: they would need to be able to prove that enough infringement had happened to rise to a criminal level. They also have criminal conspiracy charges in there, though I believe those to be predicated on proving some sort of criminal infringement. Note, however, that on the acts of direct infringement, it's possible for not everyone in the group to be involved. For example, one of the emails I remember about locating a pirate copy of some show was between a couple of employees. That wouldn't necessarily implicate Kim himself unless they could connect him to the act. There was a lot of nonsense in the indictment, though, trying to make everything sound like it had a criminal motive. Some of the same allegations made in it could be repeated against sites like YouTube, for example. The indictment did, however, contain quite a few emails that made the Mega group look pretty bad. I believe their lawyers already addressed those, saying that their words were being twisted around. Ultimately, I think this is going to be a fairly unpredictable case. [1] https://en.wikipedia.org/wiki/NET_Act https://en.wikipedia.org/wiki/NET_Act

Symmetry 14y ago
The problem with the actual charges, from what I read, is that the emails show that MegaUpload was trying to do the absolute minimum necceesary to comply with the DMCA. They were, in fact, not actually living up to everything that they had to do to under the DMCA and are thus guilty of copyright infringement under civil law, but the government decided to press criminal charges instead, and making a good faith effort to abide by the DMCA is enough to get out of those charges. EDIT: A better explanation: http://arstechnica.com/tech-policy/2012/02/is-megaupload-a-lot-less-guilty-than-you-think/ http://arstechnica.com/tech-policy/2012/02/is-megaupload-a-l...
- debacle 14y ago
  > MegaUpload was trying to do the absolute minimum necceesary to comply with the DMCA. They are completely within their legal right to do so.
- tzs 14y ago
  > The problem with the actual charges, from what I read, is that the emails show that MegaUpload was trying to do the absolute minimum necceesary to comply with the DMCA I'd change that to "trying to do the absolute minimum necessary to APPEAR to comply with the DMCA, if the request was from a party that had enough legal resources to make trouble". If they had one copy of your file stored without authorization on their servers, but it was accessible through, say, 5 different URLs, their response to a DMCA takedown request was to make the specific URL you knew about invalid, but to leave the file up and leave the rest of the URLs working. That's why I say "appear" to comply. When they were first shutdown, there were first person reports here on HN from small developers who had their takedown requests ignored, which is why I suspect that you had to be someone reasonably big for them to even bother to try to appear to comply.
  - Natsu 14y ago
    I believe that they compensated people for putting up files as well. It's not impossible to have a case where you want the copies of your files put up by some other uploader taken down without wanting your own removed. The fact that one copy was put up without permission does not necessarily mean they all were, though that's probably the case 99% of the time. Of course, depending on how you read the DMCA, they may have been obligated to do that anyhow. We'll have to see how it all plays out in court.