Slashdot Mirror
US DOJ Claims It Did Not Entrap Megaupload
angry tapir writes "The U.S. Department of Justice did not mislead a court and attempt to entrap file storage site Megaupload on copyright infringement charges, the agency said in a new filing in the case. Megaupload's charges that the DOJ conspired to entrap the site on criminal copyright charges are 'baseless,' an official with the U.S. Attorney's Office for the Eastern District of Virginia wrote in a court document filed last week. Earlier this month, Megaupload filed court documents saying that in 2010 the DOJ asked the site, through its hosting vendor, to keep infringing files as part of a DOJ investigation, then later charged Megaupload with copyright infringement."
And I didn't have sexual relations with that woman!
"Well your honor, the DOJ said we should 'keep' the evidence, and we thought that meant, distribute it through myriad of links, some of which we created to keep it alive.... so we were the victims of entrapment, and by entrapment, I mean intentionally pretending to misunderstanding something in order to try to create outrage from the headlines that might swing a decision in our favor."
Only the logs will tell... Wasn't the claim by Kim Dotcom that the DOJ requested to host on his network files pertaining to copyright infringement and then, a year or so later, busted him for copyright infringement and took his network down? His smoking gun is the communiqué between his company and the DOJ and the log files of said uploads and access, which are on the servers the DOJ took, which are probably no longer there... ...and the cycle continues. Honestly if I was on that jury I would acquit due to lack of undeniable evidence... Yes, megaupload servers hosted some copyright infringement material, is Megaupload responsible? Absolutely not, unless they themselves uploaded the content. It was written in the user agreement NOT to use the service for hosting of copyright material so it's a matter of finding the users responsible and punish them... oh, sorry, right, that would require actual detective work, of which the DOJ has forgotten how to do.
They would say that wouldn't they.
Nope. Their argument is that they couldn't lawfully delete evidence once the DOJ made them aware that their servers were under investigation.
They were asked to keep the files for an unrelated case. Then they were raided, and charge with copyright infringement for having the files the DOJ had earlier asked them to keep.
There was no due process involved in that case. If the court was not misled, then the court is corrupt and had knowledge of what was going on when the warrants were issued.
Atrocious.
If you ignore ACs because they are anonymous - you're an idiot.
No, it's entrapment because the DOJ said "Keep the files" then charged them with crimes for keeping the files. It's like when a police officer tells a drunk person to move their car, then when they do they arrest them for a DUI (and yes, this does happen). Dumb as shit, but hey, that's America!
Didn't follow the damm law either.
if you wan't to fight crime i think you need to start in your own ranks first. Everyone involved in this little episode of illegality deserves to goto jail.
It's ironic the biggest criminals in this case... Were the people making the case. Broke actual long standing laws internationally. Not iffy 'infringment' things you could argue either way.
The government lies and gets caught all the time. There is almost zero recourse for it.
Here is as much recourse as I have ever seen and I have looked:
http://www.v-serv.com/usr/ATFE-03-16-09.pdf
JJ
Hosting infringing files is allowed under the DMCA, not deleting them upon request from somebody claiming to own a copyright on it is what's illegal, which they say they weren't allowed to do.
You get these kinds of problems with criminal copyright infringement charges from the federal government: they are subject to political pressures by various powerful industry groups, they have extremely high costs for the targets even if unsuccessful, but the people responsible can't be held accountable. Criminal penalties for copyright infringement should just be abolished; they serve no useful purpose.
Hosting illegal material is not a crime under DCMA. Not deleting it once they receive note is. But they couldn't delete any file because DOJ told them there was an investigation under way and the files were evidence. Destroying evidence is a crime.
Exactly.
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
Megaupload always had a policy of "if you report a DMCA violating file to us, we will delete it."
The DOJ basically told them, "don't delete any files that are reported to be DMCA violations."
A year later, the DOJ goes to Megaupload and says "you're hosting files that violate the DMCA! You're under arrest!"
Now, Megaupload is saying "we were hosting files that violated the DMCA because the DOJ wouldn't let us delete them!
This is a non-event - prosecutors basically never admit error, until they are forced to.
On this subject, there is a White House petition to Remove United States District Attorney Carmen Ortiz from office for overreach in the case of Aaron Swartz.
Nope. Their argument is that they couldn't lawfully delete evidence once the DOJ made them aware that their servers were under investigation.
Perhaps, but couldn't they have stopped sharing the files or making them available while at the same time not deleting them?
If I can be modded down for being a troll, can I be modded up for being an orc, or a balrog?
It would seem that if Megaupload can produce a copy of the the first mentioned court order, and it pre-dates the raid, that it is case closed.
Sig Battery depleted. Reverting to safe mode.
No, the argument was that they were asked to keep the files as they were pursuant to a separate investigation.
The first order was used as evidence in filing the second. There was even a /. story about it.
Maybe. It depends on how clear the DOJ was. The DOJ asks companies to continue hosting forums for instance related to very bad stuff all the time. They aren't just continue to preserve the data. They are asking the companies to keep the forums up so that there investigation can continue unhampered by what otherwise the law requires them to take down.
They actually did that.
The difference is minimal... offenders of imaginary property are jailed in, rich and powerful are bailed out. See? Barely any difference.
I have a good friend that got charged for drunk driving when a cop found her sleeping in her running car in the parking lot of a bar. The cop rolled up on her and asked what she was doing. She said she was too drunk to drive and didn't have anyone to come get her. It was 15 degrees out so she started the car and went to sleep. He immediately arrested her despite the fact that she never drove the car anywhere, simply putting the key in the ignition is apparently illegal. When they got back to the station she even blew bellow the legal limit, but she signed a statement describing what had happened which they then used as evidence against her in court and she lost. She spent the night in jail, paid a $1000 fine and lost her license for a year... for doing the right thing.
The moral of the story? Don't talk to the the police. Don't help them. Don't believe anything they tell you, it is perfectly legal for them to lie to you. Don't sign anything. Don't volunteer any information, even if you think it's helpful. You do one thing and one thing only: Ask for a lawyer over and over... and even then, it has happened, that the police send in the DA and tell you "here's a lawyer" and you admit everything while they're taping. It's legal, and it's been done. Fuck the police, they are not your friends, they are there to arrest you. If they can't arrest you, you are uninteresting to them.
Try it, call the police up sometime and report that your car was broken into... or your house... they may show up sometime in the next 12 to 48hrs... maybe... in my city you get to file a report over the phone to an answering machine. Then try calling them and telling them you've got an once of pot. You'll have 3 squad cars in your driveway in under 5 minutes. Welcome to American indeed.
Wow, you really are pretty ignorant of the law.
In fact, the keys don't have to be in the ignition. They only have to be accessible to you (as in, in your pocket, or on the seat next to you). If you crash out in your car drunk, unless your keys are nowhere to be found, you can be charged with a DUI.
http://www.myduiattorney.org/dui-tips/sleeping-it-off-yes-you-can-get-a-dui-in-your-sleep.html
If you need web hosting, you could do worse than here
The moral of the story? Don't talk to the the police. Don't help them. Don't believe anything they tell you, it is perfectly legal for them to lie to you. Don't sign anything. Don't volunteer any information, even if you think it's helpful. You do one thing and one thing only: Ask for a lawyer over and over... and even then, it has happened, that the police send in the DA and tell you "here's a lawyer" and you admit everything while they're taping. It's legal, and it's been done. Fuck the police, they are not your friends, they are there to arrest you.
Most of what you say is true, except for the one about the DA. I am a lawyer, and we studied that case in my professional responsibility class - that defendant's statements were suppressed, and the DA was disbarred. You frequently can trust the bar overseers: one benefit of our adversarial system is that since the other side's lawyer is trying to fark you, and your lawyer is trying to fark them, the neutral party really does end up pretty neutral. Just don't trust the cops. They're always on the other side.
Maybe. It depends on how clear the DOJ was. The DOJ asks companies to continue hosting forums for instance related to very bad stuff all the time. They aren't just continue to preserve the data. They are asking the companies to keep the forums up so that there investigation can continue unhampered by what otherwise the law requires them to take down.
If that's the case, and the DOJ asked Megaupload to break the law by continuing to share copyrighted materials after a DMCA notice was given, then Megaupload should have demanded the DOJ put their request in writing, and if the DOJ refused, they should have complied with the law and stopped sharing the files. If the DOJ put their request in writing, then Megaupload would be protected now.
If I can be modded down for being a troll, can I be modded up for being an orc, or a balrog?
I meant "Right" as in honerable, honest, best for society... not "right" as in, the correct, best thing for her self interest.
"you're hosting files that violate the DMCA! You're under arrest!"
Hosting, as in distributing it as a copyright violation.
""don't delete any files that are reported to be DMCA violations."
Delete as in delete.
So the Megaupload claim rests on an idea that if you don't delete a file, you must then distribute it over the internet. A false dichotomy. It's quite a ludicrous claim, and the comments in this thread show a lot of people want this play on words to have substance, but it doesn't.
No judge will go along with that, the DMCA is a TAKEDOWN notice, not a delete evidence notice. This is a PR thing, not a legal thing, it's not for a judge, it's to make headlines which might (like Slashdot summary) might conflate deleting a file, with hosting and distributing a file.
"Their servers were under investigation" is only kind of true. The DOJ was reportedly investigating parties other than Megaupload. Their normal procedure was to remove offending files so they could remain compliant under the DMCA. This investigation didn't have anything on Megaupload as they kept close to but never crossing that fine line. And of course, when they were told they could no longer remove the infringing material, they did as they were told in order to assist in the investigation.
I guess it is important to note that the DOJ either didn't know what its left hand was doing (unlikely) or this in indeed entrapment. And just because they said it's not does not make it so. Recently, we have all be seeing more stories of how police and others are not just planting evidence, they are simply making things up!
With a proper legal system those should be the same.
You studied a case where the DA was stupid enough to submit it as evidence and then the defendant got a good lawyer and fought it. The way that game usually goes is the DA pulls his stunt, plays the tape back for the defendant, then leaves the room... the cops come in and offer a deal for a full confession which the accused who usually has an IQ of 90 takes in panic while the DA's out in the hall throwing his original tape in the trash. As long as the DA and arresting officer are buddies no-ones the wiser.
no, because the DOJ specifically asked them not to alert the users who uploaded the files.
They're using their grammar skills there.
I think he was being sarcastic over just how ridiculous the law really is.
huh?
The original DOJ request to preserve data is documented.
Believe it or not, it's actually not that simple. The government did not merely ask Megaupload to not delete evidence - they asked Megaupload to avoid doing anything that might alert anyone that there was even an investigation. Actually, the government asked Carpathia to ask Megaupload. Go figure...
:(){
Given the corrupt stench pervading this whole sorry affair, I'm finding it hard to believe anything coming from the prosecution.
Excellent anecdote. Here's an eye-opening video from a law school professor and a detective. Both of them agree, never talk to the police
http://www.youtube.com/watch?v=6wXkI4t7nuc
Weren't they also directed NOT to let the infringers know that they were under investigation? ...And, wouldn't deleting the files (or making them inaccessible to the true infringers) do EXACTLY that?
My understanding, from reading both Mega's brief and the DOJ response, is that Mega is grasping at straws, but judging by the comments here, is doing so rather effectively. The point of the 'keep things secret' instructions from the DOJ actually only go so far as sealing the search warrant. They were not seeking cooperation from mega or carpathia, they had a court order compelling it. Cooperation was neither here nor there. The point was that they couldn't disclose the existence of the search warrant, as that was sealed to only carpathia, with exception to mega.
Furthermore, the only communication they submitted in support of the brief was an email from a director of carpathia to the mega directors. (there was a link to it in the Wired coverage of this) It states that the government wants the files themselves, and the director suggests aggregating them on to however many drives from the servers it would take, removing and replacing them, then sending those drives to the government. It then recommends not setting up an 'E7 ticket' whatever the hell that is, which would presumably alert the users in question that the files had been removed for a specific reason, rather than simply being unavailable because of server shenanigans. Far from producing a communication from the government saying 'please keep these files up and publicly available' they've produced an email that seems to indicate the government wants the physical drives from the servers on which the files reside. On the one hand, its not exactly fair to go to mega with this search warrant, and say, we're taking these thigns, but you cant let the people who use them know. On the other, i doubt that 'take down 39 of the however many millions of files you host and dont publicly post that they were removed in response to a court order' is really an undue burden. File lockers have server issues all the time.
I'm personally of the opinion that this whole clusterfuck is pointless, given the way the other file lockers filled the void mega left, and is ultimately a losing proposition by supporters of terribly written copyright laws. But without a document showing a governmental request that mega maintain those files publicly, this seems like dotcom's 'fuck'em we'll just do it anyway' business strategy biting him on the ass.
Come read my stupid blagablog. Rants and Giggles
...Then try calling them and telling them you've got an once of pot. You'll have 3 squad cars in your driveway in under 5 minutes. Welcome to American indeed.
Not where I live. Yeah Washington State!!!!
And it's welcome to America, not American. Comrade!
Be seeing you...
There is no proof of that. Even after illegally seizing all their servers the DOJ was unable of finding real evidence of what you are claiming. The proof of that is that DOJ abandoned the case, which would never have happened if they had any real evidence.
Except that according to his story, she wasn't even over the limit. However by her admission, she signed a document recalling the events, her admission of feeling impaired enough to convict her.
In the US, people are taught to trust the police from childhood and onward. To the average person, it's only the nutters that are screaming about how backwards the police system can be like this, so the usual instinct is to try to be polite and helpful since they don't feel they have done anything wrong. Unfortunately for them, when they do finally end up on the wrong end of a police investigation, they will learn all too well how being helpful is about the worst thing they can do.
So yeah, it was dumb to talk to the police, but most people do not know any better and it is hard to fault them for it. Most people have never even had an encounter with a police officer, let alone been given any reason to personally mistrust them all.
Try it, call the police up sometime and report that your car was broken into... or your house... they may show up sometime in the next 12 to 48hrs... maybe... in my city you get to file a report over the phone to an answering machine. Then try calling them and telling them you've got an once of pot. You'll have 3 squad cars in your driveway in under 5 minutes. Welcome to American indeed.
Reminds me of a humorous story many of you are probably familiar with:
Going to bed the other night, I noticed people in my shed stealing things.
I phoned the police but was told no one was in the area to help. They said they would send someone over as soon as possible.
I hung up. A minute later I rang again. 'Hello,' I said, 'I called you a minute ago because there were people in my shed. You don't have to hurry now, because I've shot them.'
Within minutes there were half a dozen police cars in the area, plus helicopters and an armed response unit. They caught the burglars red-handed.
One of the officers said: 'I thought you said you'd shot them.'
To which I replied: 'I thought you said there was no one available.'
Perhaps, but couldn't they have stopped sharing the files or making them available while at the same time not deleting them?
Did you even read ANYTHING related to this case? At all?
They were specifically asked not to do anything that would alert owner of the files.
Do you think disabling links to files would alert him, huh?
Just because one user does not have a license does not mean another doesn't either.
Yeah accidentally, by inviting 50 people for a party, get the drunkest guy piss on the server.
Whooops, some guy fried the RAID5 server. Awww, so sorry.
Do not trust the DOJ ever.
Liberty freedom are no1, not dicks in suits.
Heres a tip, claim you have psychosis.
1. they will bring in medics.
2. you will go to a nice place, medicated up.
3. you cant sign anything bad, or be considered of sound mind to self incriminate yourself
Liberty freedom are no1, not dicks in suits.
Well, I guess that will be among the things that the court needs to find out. Right now, we only have the words of the to sides, which - highly unsurprisingly - both say what they need to say so it appears they are blameless and the other guy is responsible for everything. The truth seldom turns out to be so simple and binary.
Assorted stuff I do sometimes: Lemuria.org
my reading of mega's brief and the government's response, is that the government did not ask mega to preserve any data. Rather, the warrant, served against carpathia, was sealed, with exception for disclosure to mega for compliance with keeping the existence of the warrant secret. Mega's brief includes the original email from one of carpathia's directors, which states that the government wants the files themselves to be turned over, and recommends that they be aggregated onto one or more drives from the server, then those drives be handed over. It also recommends that mega not start an 'E7 ticket.' I have no idea what that is, but the implication is that opening one would alert the ninja users as to the reason for the unavailability of files.
The brief says that mega maintained the files publicly available in keeping with the government's express desires, but the document they offer in support shows no such government request. In fact, the government did not interact directly with mega, as the warrant was being served directly against carpathia, as the actual hosts of the files. There seems to be a lot of 'the government request is well documented' going on in the comments here, but its not evident even in mega's own supporting documentation. The government seems to have gone out of its way to preclude such a claim simply by not interacting directly with mega.
Furthermore, the affidavit supporting the domain seizures in early 2012 was not, as one might infer from mega's rhetoric, based exclusively on the files at issue in the ninjavideo case. In fact, one of the two infringing files specifically named, with URL, in the affidavit was twilight breaking dawn pt 1, which had not been released in 2010 when the gov was pursuing ninja.
The problem with the whole thing, in my opinion, is that mega could have made a decent argument that they couldnt remove the specified files from public availability without giving the ninja users cause to ask why, and that in order to comply with the spirit of the seal on the warrant, keeping the files up and available was the only real option. The main weakness in this is that for only 39 files, 'random server shenanigans' would be totally par for the course if they'd just taken the files down with no explanation. Server errors happen. This argument also only goes so far without either a very official letter of understanding from the DOJ that mega would not be held liable for infringing copyrights while complying with the warrant, or even better, an injunction mandating that they keep the files up and remain silent as to why. But that's not what happened. A sealed warrant was served on mega's host, carpathia, apparently seizing the files and compelling the disclosure of identifying information on the ninja users. That's not really the same thing as 'complying with a documented request by the DOJ to keep breaking the law.'
I'm sure there's a bunch of stuff i'm missing, the suit is pretty complex at this point. Even just mega's brief includes both mega's action as well as a third party action to compel the DOJ to release private, non-infringing data back to private mega users. But the entrapment claim seems kinda stupid. Copyright law needs some major reform, but in the statutes. Letting Mega off will accomplish as little as convicting them, imo. Either way, a bunch of other file lockers stepped in to fill the void, and the copyright system will still be a statutory nightmare essentially legislating the corporate content creation model of 20 years ago. Oh, last note, Wired's story has good links to the briefs, affidavits and warrants discussed above, much better than TFA linked above.
Come read my stupid blagablog. Rants and Giggles
The same folks that were going to send a script kiddie to PMITA prison for more years than murderers for downloading publicly-funded research papers? The same folks that would rather storm-trooper raid medicinal marijuana stores than even investigate the crooked bankers that destablized the world economy?
Believe them? Nope; not anymore.
Internet Lobby that is powerful as the Gun Lobby.
"hnnng wazzat thing that's really uncomfortable, can't I move it" *click* "heehee it almost feels like this car is rolling down this sloped car park, I drank way too much!"
People do stupid things when drunk.
Look at the way it played out for DoJ. If Mega had deleted the files, they've been hit with obstructing justice, interfering with a federal investigation, etc, etc, etc. If they didn't delete them, they get nicked for copyright infringement. By backing up a level and dealing with the server host, the DoJ tried to get its cake and eat it too.
Understanding the scope of the problem is the first step on the path to true panic.
Court orders? Evidence? This is the United States government we're talking about here. They don't have to show any evidence until the trial. FISA and the PATRIOT Act cover that. Or didn't you get the memo that filesharers support terrorism?
Understanding the scope of the problem is the first step on the path to true panic.
Sure there's a trade off. Things might turn out better if you talk, you might avoid a fine or whatever. However, the downside can be huge.
There's common sense at work, for a traffic violation admitting you did it when the caught you in the act is fine - the penalties aren't jail terms (I'm not counting DUI offenses at traffic violations) and the cops word that you did it is good enough in court anyway. If they ask questions that require you to remember something you stop talking - after all recollecting incorrectly gets construed as lying easily enough. If you start getting emotional you stop talking. If you get placed under arrest then you say nothing until you have a lawyer who will hopefully prevent you from believing promises from the police and from letting your emotions (in an extremely stressful sitution) take over.
The UK (well England and Wales, I'm not sure how uniform things are over there - I suspect not very) is a little different from the US, since your silence can be used to draw inferences of guilt in court something that isn't allowed in the US. If anything that makes it even more critical to get a lawyer on your side to help you determine what to answer and what not to answer, since not answering at all can make things worse.
You certainly don't sign anything without a lawyer on your side. That isn't an EULA that you click OK to without reading. It potentially has a far bigger effect on your life than something like signing to buy a house which most people wouldn't do without having someone experienced in real estate transactions read.
Because lots of drunk drivers would use the loophole of claiming not to be driving the vehicle when the police found them to try to escape prosecution.
The "loophole" is that they were in fact not driving? Not sure I get what your point is here.
Time is what keeps everything from happening all at once.
It has been suggested you keep a small 375ml bottle of booze in your car. When you get pulled over, step out of the car, throw your keys on the ground, open the bottle and drink all of it. Make sure they see you break the seal on their dash cam. Now they can't prove you were drunk before you got pulled over.