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!
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.
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.
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?
"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.
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.'
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