What differentiates this from many of the earlier domain name seizures is that
this is based on a grand jury indictment, not just an administrative decision
by Immigration and Customs Enforcement. It may be heavy-handed or questionable,
per the Ars Technica analysis, but as a matter of process it's about as good
as you'll get.
I would agree. They've dotted every i and crossed every t here.
This will inevitably be followed by a prosecution of some sort and/or
there's also scope for Megaupload to sue the USG for restitution.
It'll be interesting to see how this pans out - especially wrt any
safe harbor provisions in the DMCA for providers (which do have a
provision for due diligence being exercised etc).
Probable cause for seizure should have been easy to establish - no
shortage of warez, cp etc on these free upload sites.
The Megaupload case is unusual, said Orin S. Kerr, a law professor
at George Washington University, in that federal prosecutors obtained
the private e-mails of Megaupload’s operators in an effort to show they
were operating in bad faith.
"The government hopes to use their private words against them," Mr. Kerr
said. "This should scare the owners and operators of similar sites."
It'll be interesting to see how this pans out - especially wrt any
safe harbor provisions in the DMCA for providers (which do have a
provision for due diligence being exercised etc).
I quickly read through the indictment, but the gov't claims that when given a takedown notice, MU would only remove the *link* and not the file itself. They specifically mention some movies that were still on the site years after the notice, thus negating MU's eligibility for safe harbor.
As you say, interesting for sure with the dotted i s and crossed t s.
I don't mean either -- I've only skimmed the indictment. But from the
news stories, it would *appear* that they got a search or wiretap warrant
to get at employees' email. I don't see how that would make it "not
private". (Btw -- "due diligence" is a civil suit concept; this is a
criminal case.) The prosecution is trying to claim that the targets
had actual knowledge of what was going on.
I do know Orin Kerr, however. He's a former federal prosecutor and he's
*very* sharp, and I've never known him to be wrong on straight-forward
legal issues like this. He himself may not have all the facts himself.
But here are two sample paragraphs from the indictment:
On or about August 31, 2006, VAN DER KOLK sent an e-mail to an
associate entitled lol. Attached to the message was a screenshot
of a Megaupload.com file download page for the file Alcohol 120
1.9.5 3105complete.rar with a description of Alcohol 120, con
crack!!!! By ChaOtiX!. The copyrighted software Alcohol 120 is
a CD/DVD burning software program sold by www.alcohol-soft.com.
and
On or about June 24, 2010, members of the Mega Conspiracy were
informed, pursuant to a criminal search warrant from the U.S.
District Court for the Eastern District of Virginia, that thirty-nine
infringing copies of copyrighted motion pictures were believed to
be present on their leased servers at Carpathia Hosting in Ashburn,
Virginia. On or about June 29, 2010, after receiving a copy of
the criminal search warrant, ORTMANN sent an e-mail entitled Re:
Search Warrant Urgent to DOTCOM and three representatives of
Carpathia Hosting in the Eastern District of Virginia. In the
e-mail, ORTMANN stated, The user/payment credentials supplied in
the warrant identify seven Mega user accounts, and further that
The 39 supplied MD5 hashes identify mostly very popular files that
have been uploaded by over 2000 different users so far[.] The Mega
Conspiracy has continued to store copies of at least thirty-six
of the thirty-nine motion pictures on its servers after the Mega
Conspiracy was informed of the infringing content.
Well they did take down megaupload.com and the sister website mega video.
But now with one of the worlds biggest websites down. Others will step up to take over Megaupload's place.
Well maybe depending on trial etc.
I can only imagine the bloodbath this will cause.!!
Show me a file sharing site with no illegal content! This is just insane.
What's quite interesting is that Rapper/Producer Swiss BeatZ is the current
CEO of megaupload how ironic.
I suspect most file sharing site don't have illegal content. Most
would have some content that is there without the permission of the
copyright holder. These are different things.
This case is not that there is copyrighted content there without
the permission of the copyright holder. It's that they, allegedly,
failed to remove such content when explictly notified of it which
put them outside the safe harbour provision of DMCA.
<nitpick>
"Without the permission of the copyright holder" _is_ contrary to
statute, and thus 'against the law'. As such 'illegal' is _not_
an incorrect term to apply to the situation.
It may not be a _criminal_ violation, but it is still proscribed by law.
"Illegal" and "criminal" -- _these_ are different things.
Junk faxing is illegal, Telemarketing calls to cell phones are illegal,
Public distribution without the permission of the copyright owner is
illegal.
Except in special cases, none of those actions are _criminal_, but
they are all violations of law, and thus _illegal_.
Claiming that a thing is not 'illegal' if it is not 'criminal', is similar
to asserting "it's not a crime if you don't get caught".
I suspect most file sharing site don't have illegal content. Most
would have some content that is there without the permission of the
copyright holder. These are different things.
<nitpick>
"Without the permission of the copyright holder" _is_ contrary to
statute, and thus 'against the law'. As such 'illegal' is _not_
an incorrect term to apply to the situation.
It may not be a _criminal_ violation, but it is still proscribed by law.
"Illegal" and "criminal" -- _these_ are different things.
Junk faxing is illegal, Telemarketing calls to cell phones are illegal,
Public distribution without the permission of the copyright owner is
illegal.
Except in special cases, none of those actions are _criminal_, but
they are all violations of law, and thus _illegal_.
Claiming that a thing is not 'illegal' if it is not 'criminal', is similar
to asserting "it's not a crime if you don't get caught".
</nitpick>
As is common in most industries there are expressions in the world of Internet Governance that are jargon, and have agreed meanings in that context.
"Illegal Material" is reserved for content which is illegal to possesses and/or distribute (even if, and possibly even more so, if you originated it).
"Harmful Material" is content which is legal to possess but is nevertheless regarded by many as immoral or highly undesirable within some framework of commonly held values.
"Infringing Material" is content which is held without a legitimate rightsholder's permission.
This is veering off the purpose of this list, but maybe it is operationally significant to be able to use the right terms when a law enforcement officer is standing in the door.
Mark Andrews was pointing out that content being file-shared is rarely illegal. By itself. Examples of "illegal content" might be hate speech, child pornography, lèse-majesté, blasphemy, with the meaning of these terms depending on your jurisdiction.
What you are pointing out is that distribution of content may be illegal. That does not make the content itself illegal. The legality of transfer under copyright is bound to many legal issues, such as fair use, right to personal copies, and of course licensing, again depending on your jurisdiction. But all this is divorced from the content. Content is never illegal with respect to copyright. (It might have been copied illegally, but once it's sitting somewhere, it's not illegal by itself. A license would suddenly make it legal.)
The point is important because a lot of idiots are running around shouting "he had all this copyrighted material on his computer!". Of course he had! There are very few computers that don't carry copyrighted material, starting from the BIOS. Without examining the legal context, such as purchasing histories, supreme court decisions etc., it is sometime really hard to say whether all of it got there in a legal way, and its presence may be an indication of previous illegal activity. But (at least wrt copyright law) it is never illegal while sitting somewhere on a computer.
So the next time somebody says "illegal content", think "hate speech" or "child pornography", "lèse-majesté" or "blasphemy", not copyrighted content. Almost everything on a computer is copyrighted.
Now let's return to the impact of this heist on network utilization...
What sould fileshares must do, is to store files in these services in
a encrypted way, and anonimized name. So these services have
absolutelly no way to tell what are hosting.
Fileshares can organize thenselves in sites based on a forum software
that is private by default (open with registration), then share some
"information" file that include the url to the files hosted, and the
key to unencrypt these files, and some metadata. A special desktop
program* would load that information file, and start the http
download.
This way can combine the best of the old "BBS" systems to the best of
the current caching and hosting technologies. These http hosting
services seems to operate well enough. A % of the users go premium to
allow more and better downloads.
Actually, they are all criminal violations. They may be infractions, or, they
may not often get prosecuted, but, each is, in fact, a criminal violation.
At the risk of kicking over old ground, there are a bunch of privacy solutions like this; possibly the most complete attempt (in terms of attempted privacy and distribution) is Freenet:
These services are not needed yet. But is good that are under study,
in case changes in laws or balance of power make it needed.
For now, I think people will continue using HTTP download/stream
movies and tv series.
Perhaps countries where the 3 strikes legislation is aprobed will make
one of these systems necesary. But I think speed is a important
factor, and no slow system will suceed.
Public distribution without the permission of the copyright owner is
illegal.
This is veering off the purpose of this list, but maybe it is operationally significant to be able to use the right terms when a law enforcement officer is standing in the door.
Mark Andrews was pointing out that content being file-shared is rarely illegal. By itself. Examples of "illegal content" might be hate speech, child pornography, lèse-majesté, blasphemy, with the meaning of these terms depending on your jurisdiction.
What you are pointing out is that distribution of content may be illegal. That does not make the content itself illegal. The legality of transfer under copyright is bound to many legal issues, such as fair use, right to personal copies, and of course licensing, again depending on your jurisdiction. But all this is divorced from the content. Content is never illegal with respect to copyright. (It might have been copied illegally, but once it's sitting somewhere, it's not illegal by itself. A license would suddenly make it legal.)
The point is important because a lot of idiots are running around shouting "he had all this copyrighted material on his computer!". Of course he had! There are very few computers that don't carry copyrighted material, starting from the BIOS. Without examining the legal context, such as purchasing histories, supreme court decisions etc., it is sometime really hard to say whether all of it got there in a legal way, and its presence may be an indication of previous illegal activity. But (at least wrt copyright law) it is never illegal while sitting somewhere on a computer.
So the next time somebody says "illegal content", think "hate speech" or "child pornography", "lèse-majesté" or "blasphemy", not copyrighted content. Almost everything on a computer is copyrighted.
There is a lot of disinformation in this area, with loaded words with
no legal meaning being used to make political points
or engender desired reactions. I am not a lawyer, and this is
certainly not legal advice, but in the US copyright infringement is
not theft, the shear possession of infringing material is not illegal,
nor is listening / watching / reading such material in private, and
the terms "piracy" and "intellectual property" are not to be found in
US copyright law. That you would not know this reading the press
releases is a feature, not a bug. And, since 1976, registration is not
required for copyright and almost everything written, sung, videoed,
etc., including these emails, is copyrighted from the time it is
created.
But, indeed, this is far the purpose of this mail list.
