Megaupload Host Wants Out

angry tapir writes "Carpathia Hosting, a U.S. company hosting the frozen data of millions of users of the file-sharing site Megaupload, has gone to court to argue it should not keep the files if it is not being paid. The company has filed an emergency motion in the U.S. Federal Court in the state of Virginia seeking protection from the expense of hosting the data of up to 66 million users. 'While Carpathia has never had access to the data on Megaupload servers and has had no mechanism for returning that data to Megaupload users, we have been attempting over many weeks to resolve this matter to the satisfaction of all parties involved, in a manner that would allow for Megaupload users to be in a position to ultimately recover their data,' Brian Winter, the company's chief marketing officer says."

Comments

5th Amendment

[Compaqt]

"No person shall ... be deprived of life, liberty, or property, without due process of law ..."
constitution.org

Seems like a dead letter these days. Encryption keys, laptop seizures, cloud seizures, warrantless email searches, GPS tagging, etc.

Re:5th Amendment

[TFAFalcon]

It's still being followed. Due process of the law now means being accused.

Re:5th Amendment

[JosKarith]

Freezing someone's assets to "Prevent their flight" disrupts all their business, legitimate or not...? Who knew that was going to happen?
Hell, I'm still confused as to how a German living in New Zealand gets arrested on the orders of the FBI...

Re:5th Amendment

[Anonymous Coward]

Carpathia Hosting is unable to re-purpose these servers, they are also being deprived of their property without due process. They should be allowed to delete the data.

Re:5th Amendment

[petsounds]

Funny how people say that digital goods should not be counted as a specific piece of property until suddenly their personal interests are at stake. [I'm not targeting you personally; I don't know what your take on digital goods is.]

Either files are real property, or they are not. If they are, then they must be so consistently whether it is your file on a server that you have been denied access to, or whether it is someone downloading a 'copyright-infringed' mp3 from a torrent site. If not, then the files uploaded to sharing servers are just copies; not the original item, and in that case people should've made a backup copy in a digital space that they control.

Either way, it seems like our legal definition of property is way behind the technical state of the art.

Re:5th Amendment

[TheInternetGuy]

Freezing someone's assets to "Prevent their flight"

Never mind the 5:th amendment, I thought freezing peoples asses to prevent their flight was against the Geneva convention or something or another.

Re:5th Amendment

[gomiam]

You are equating different things: a paper copy of a novel is a piece of physical property. The novel itself isn't a piece of physical property, as demonstrated by the fact that it can be copied (on physical media as paper for example).

Files, as pieces of magnetized ferrite on a disk, are physical things and you can complain about their not being available, because you lost your copy of those files when you lost access to that magnetized ferrite.

Besides, copyright advocates don't complain about their intellectual property "disappearing" (at least usually): they complain about there being too many "unauthorized" copies of it laying about.

To summarise: you are saying physical and virtual items are the same when they aren't and saynig not having access to some data with having "too many copies" of it around is the same when it isn't. <sarcasm>Will you try showing that black and white are the same too?</sarcasm>

Re:5th Amendment

[TheInternetGuy]

Oh, you said assets

didn't you? Well carry on then.

Re:5th Amendment

[msobkow]

If your data is your life, you should have been doing backups to other locations, not just posting it to a server some where.

No sympathy here for anyone who "lost" data due to the takedown. Were I in the hosting provider's shoes, my response would be along the lines of:

A failure to plan on your part does not constitute an emergency on my part.

It's an old saying in the IT world, but a sanity-saver when dealing with incompetent users and departments who always put off their requirements to the last minute and who rarely have the budget to PAY for those requirements.

Re:5th Amendment

[PopeRatzo]

A failure to plan on your part does not constitute an emergency on my part.

What would you say if you got a call from your banker tomorrow saying they lost all your money, but...

"A failure to plan on your part does not constitute an emergency on my part."

Hell, you should have saved some money elsewhere and kept your money somewhere that didn't have a vice president who was going to Vegas every weekend, and by the way, you never complained when you were getting 0.5% higher interest rates than other banks offered.

If your money is your life, you should be more careful with it.

If it's such a high war on crime priority for the FBI to take down this goofy criminal mastermind, who they seem to believe is some James Bond supervillian, then they ought to pay this host site to preserve their evidence for them. And, they ought to allow the users of Megaupload access to their files until they are each proven to be stolen or infringing. And to anyone who actually paid Megaupload to share their files: have you never heard of a torrent?

Re:5th Amendment

[sjwt]

Carpathia Hosting is unable to re-purpose these servers, they are also being deprived of their property without due process. They should be allowed to delete the data.

Or perhaps as part of the due process, the government should be reimbursing the companies it can and dose cripple with such moves.

Re:5th Amendment

[Hatta]

That's not funny, it's true. Since "due process" no longer means "judicial process" what's left?

Re:5th Amendment

[AngryDeuce]

The industry itself doesn't even have a clear-cut idea as to what is property and what isn't as concerns digital media.

Take the RIAA, for instance, who in the course of a week or so, argued that an MP3 was merely being 'licensed' in order to prevent the sale of 'used' MP3's in their suit against Redigi, and then in another case, argued that MP3's were actually being 'sold' to avoid being liable for the much higher percentage of royalties due the artist for licensing their music as opposed to selling it.

Obviously a digital file cannot be both owned for purposes of liability and licensed for purposes of use, so the courts need to get on top of this ASAP.

Re:5th Amendment

[Weatherlawyer]

You are equating different things: a paper copy of a novel is a piece of physical property. The novel itself isn't a piece of physical property, as demonstrated by the fact that it can be copied (on physical media as paper for example).

Files, as pieces of magnetized ferrite on a disk, are physical things and you can complain about their not being available, because you lost your copy of those files when you lost access to that magnetized ferrite.

Besides, copyright advocates don't complain about their intellectual property "disappearing" (at least usually): they complain about there being too many "unauthorized" copies of it laying about.

To summarise: you are saying physical and virtual items are the same when they aren't and saynig not having access to some data with having "too many copies" of it around is the same when it isn't. <sarcasm>Will you try showing that black and white are the same too?</sarcasm>

So are you saying the copies are not copies if they are digital copies? Why is there a problem with Megaupload in that case? And if you are wrong, what law will allow them to be copied if the owner of the file is the copyright holder? But in any case, how many people are likely to pursue this sort of thing?

Re:5th Amendment

[nashv]

Why is it confusing ?

You can file a complaint against any an individual in the police force of any nation, and the police force of that nation has the right to make arrests if that individual is on their soil.

In the case of Megaupload, a US Federal Prosecutor filed that said complaint in New Zealand, providing evidence of international crimes. The FBI then filed for extradition of the accused in New Zealand. There was a court hearing in New Zealand, which approved the extradition.

Just because the newspapers report in colloquial language and say "upon the FBI's request" , it doesn't mean due procedure is not followed. Of course, the gist of it is still that he was arrested due to a request by the US authorities.

Re:5th Amendment

[cpu6502]

>>>Is it just me, or is it that if someone doesn't like what you're doing, they don't care if the charges stick so long as they get to hurt you financially?

This is the preferred method used in Russia. Accuse an anti-government or anti-Putin website of copyright infringement (unlicensed software), grab all the computers, and then shut them down for a year. At the end of the year they say, "Oh you're not guilty" and return the equipment but it's too late by then. It's interesting to see the U.S. is now using the Russian method.

Re:5th Amendment

[ILongForDarkness]

Well there is some case for that. Stuff has always been taken as evidence until the trial is over at least, and probably kept permanently if you are found guilty (not sure if a convicted murderer gets their knife back after they serve their time, but I suspect not). This is the flip side of cloud services: since you don't own the thing it isn't just the use of property you are denied, you might actually have bills to pay for stuff you don't want because the gov' doesn't allow you to delete/'cancel service until the trials are done. I suppose the subpoena should go to the hoster and then what? A subpoena from a US company to a foreign company may or may not be obeyed. If it was me I'd just say: What data? It was deleted yesterday as soon as we heard you were trying to arrest someone that isn't a citizen of your hell hole.

Re:5th Amendment

[ILongForDarkness]

No. I think a bigger concern is that the assets being frozen aren't his. It is like there being a murder in an apartment building and the police come and put up their tape. Fine. But the CSI's have had plenty of time and have done all they can do with the scene. But the government just expects the landlord to keep the apartment the way it was, including all the utilities on and the plants watered by the gardener until the trial is done. The cost is being paid by someone that isn't the defendant. They should copy the data and then let the guy delete it. If they don't want to copy it because it is a ridiculously large amount of data than that is their problem.

Re:5th Amendment

[jedidiah]

Whether or not I trust him is irrelevant.

Whether or not I like him is irrelevant.

There are just certain rules we don't break. This idea predates the republic. It's not a new idea that was invented with the ACLU.

Why not force taxpayers to pay for it...?

[mykos]

...just like we have to pay for any other copyright enforcement actions?

Shutdown E V E R Y T H I N G!

[AGMW]

It totally stinks that the high percentage of legitimate Megaupload customers are getting screwed 'cos of the US bully-boy tactics. What about shutting down the US Postal Service because of all the illegal activity that enables? People do bad things with telephones too. Hey, don't people use cars as getaway cars ... let's shut down Ford and GM while we're at it!

Re:Shutdown E V E R Y T H I N G!

[Rosco P. Coltrane]

let's shut down Ford and GM while we're at it

Don't worry, Detroit execs are already busy mismanaging them out of existence themselves anyway.

Re:Shutdown E V E R Y T H I N G!

[sjwt]

"Don't worry, Detroit execs are already busy mismanaging themselves into another bailout anyway."

TFTFY

Re:Shutdown E V E R Y T H I N G!

[rtb61]

The best alternative would have been to appoint a legal guardian, to ensure the legal elements of the business can continue whilst the court case is carried out. What has happened flies in the face of one of the most important elements of justice, innocent until proven guilty. Elements of the US government have completely abandoned this principle from torturing suspects (guilty upon accusation and subject to punitive physical and psychological abuse, at the hands of mentally disturbed individuals seeking promotions and passing performance measures, all without recourse to the courts and false confessions to end the torture being treated a valid evidence) to confiscation of assets to actively prevent paying for a legal defence.

A bunch of out of control wankers, with no real appreciation of the law and justice, just their own ego of being judge, jury and execution. A closed chorus, cheering each other on in their legal abuses, gloating over the power they misuse and it all falls apart when it finally goes through the courts, unless of course they can force a confession and guilty plea out of people, via extended psychological torture.

They just want immunity

[rainer_d]

They are afraid that the case against "Kim Dotcom" implodes and he sues (which, given the circumstances is not unlikely). It will be interesting to see the outcome of this. Kim Dotcom certainly has the funds and is willing to fight this to the end.

Re:Not THEIR data

[king neckbeard]

How about this article, which lists multiple users making the claim you say doesn't exist by name: http://arstechnica.com/gadgets/news/2012/01/megaupload-wasnt-just-for-pirates-angry-users-out-of-luck-for-now.ars

Your claim is fucking ridiculous. There are 25 PB of data. It's nearly impossible for there not to be significant amounts of legitimate data on there.

Bill the credit cards

[Anonymous Coward]

The megaupload servers will have the details of all the users and their uploaded pirated stuff in their accounts. Just bill their credit cards.

Seriously, you realize that this is the start of the process not the end, those servers contain massive amounts of copyright infringement logs and a paid account is linked to a credit card and thus to a person. So there will be a mass of investigations to follow from this.

There's no way a court will let that data be destroyed.

Ask the EFF?

[QuasiSteve]

The EFF helped set up an effort for U.S. users of MegaUpload to get their data back. They should have some information on how many requests they've gotten.

http://www.megaretrieval.com/

"Carpathia Hosting has created the website www.MegaRetrieval.com to help lawful users in the United States work with EFF to investigate their options for retrieving their legitimate, non-infringing files from Megaupload."

a priori

[Blackajack]

Any previous judgements about similar cases where the goods are physical?
Say, rent lockers or 3rd party warehouses that hold possible contraband/illicitly appropriated/counterfeited materiel in such quantities that it cannot be moved without extraordinary expense?

Re:a priori

[ray-auch]

It's definitely happened before with physical goods in the UK, not sure about US, probbaly wouldn't be much different. One take on it is here (make sure you read down to the second half):

http://www.dailymail.co.uk/home/moslive/article-1222777/The-raid-rocked-Met-Why-gun-drugs-op-6-717-safety-deposit-boxes-cost-taxpayer-fortune.html

Essentially a bunch of innocent people had to spend a lot of money on legal action to get their stuff back. Not all succeeded. Of those that did, mostly we don't know because to get their compensation they had to sign gag orders - can't have people talking about the law f**king up now can we....

Search warrant stated 90% of use was illegal... later estimates reckon 10% or less.

The cloud, where your data turns to vapour

[gweihir]

I think this is actually a good thing, better find out now than later. Together with the recent outages at the Amazon and MS clouds, this shows that the cloud is really a chancy thing to depend on.

Meh

[drinkypoo]

If I did legitimate banking business with an offshore bank I would still expect my funds to dry up and disappear one day because it's a fucking illegal bank. Yes, there is non-infringing use, but these sites exist on the back of illegal uploads. If it can be shown that they make a significant percentage of their income on obviously illegal transfers then it's hard to see the logic (legally, that is) of permitting them to continue to do business. And it's also hard to see the logic of expecting your files to continue to be available when you're storing them with someone known for their access to files to which people aren't supposed to have access.

Re:Meh

[cbope]

Are you seriously implying that any entity operating "on foreign soil" is by definition doing something illegal?

Re:Meh

[phayes]

By the same yardstick, if the bank holding your mortgage has been used to transfer drug money the USG can seize all it's accounts & kick you out of your home while proceedings are undergoing against the bank officers that were abetting the drug runners?

No. Hell NO!

I never used Mega* directly (got some stuff from friends who did though) as I always assumed that something would come along to squash it However, locking the legit users out amounts to illegal seizure in my book.

They should have just reused/returned the servers

[Alain Williams]

They are going to be told that they must keep the servers - just in case it is needed in some court trial in 2-3 years time, and no they can't claim from law_enforcement/courts/... they must pay for it themselves - tough.

If they had just wiped the machines because their customer had not paid their bills they would have been given a slap on the wrist, now if they do they will be in breach of a court order.

Re:Holdng data hostage

[Anonymous Coward]

It's like this:

Company A pays Company B for hosting
Company B buys/rents servers, rackspace, power, bandwidth to provide the service

Government C shuts down Company A
Company A no longer pays Company B
Company B still has it's bills to pay.

Therefore, either:
Company B removes it's service, and re-uses the equipment, rackspace etc for a new paying customer
or
Company B loses money running a service that costs money but it gets nothing for
or
Government C re-imburses Company B for the cost
or
Government C uses a legal instrument to require Company B to retain the data

Re:They should have just reused/returned the serve

[Ash-Fox]

They could also just not pay and they aren't the ones wiping it then, if I understood the original article correctly. If they stop paying the hosting fees, the data will no longer be available.

Re:Nature of computers

[king neckbeard]

You missed the part about being the only extant copy. No, there were no instances where MU had the only copy ever. People accidentally delete files. Hard drives crash. Data gets corrupted. Thus, the other copies not on MU could feasibly now be extinct.

Seriously do you think anyone would upload the one and only copy of some important data to a company that may well have been bankrupt the next day anyway, or had a server crash, or any number of things? You'd be batshit nuts to do that. What if the copy you uploaded was corrupt on the server?

Yes, you'd have to be an idiot to leave important data in 'the cloud.' However, most people ARE idiots.

This is backed up by the lack of requests from people to get their one and only copy of data back from Megaupload's server.

Where are you documenting this lack of requests? There isn't a clear party to ask that can actually do anything, and if there was, there could very well be users who don't know who that party is.

The gov or copyright holders should pay for it

[thetoadwarrior]

The hosting company has done nothing wrong. They shouldn't be punished to keep all that data going. If the government wants to punish Megaupload, that's fine, but pay the hosting fees, so you don't end up bankrupting an innocent party while you take months if not years to sort this out.

Re:Not THEIR data

[betterunixthanunix]

Ironically, the DOJ itself uses MegaUpload.

Re:Not THEIR data

[makomk]

Not only that, Megaupload links pop up in all sorts of places. For example, I was looking at Linux drivers for various USB TV tuners, and it turns out that one of the ones I was looking at had a vendor-supplied driver for Linux that was helpfully linked on the LinuxTV wiki and apparently only available from Megaupload.

Re:Not THEIR data

[cant_get_a_good_nick]

Not a single Megaupload user has come forward and claimed the data in their account is their data.

Quite a few artists, not affiliated with labels, used Megaupload to distribute their albums. It became the new mixtape.

Since they were uploaded the artists, and the artists owned copyright, it definitely was their data.

I've seen discussions of whether this was part (just part, not all) of the motivation for the Megaupload shutdown. Record labels didn't want to lose their control over distribution. This control was one way how they forced musicians to sign bad contracts - there was no other way to get their albums out.

Re:That's not the same

[JosKarith]

1 pirated song =/= 1 lost sale.