
Megaupload: A Lot Less Guilty Than You Think - privacyguru
http://cyberlaw.stanford.edu/node/6795
======
victork2
Even if I don't trust the justice system in the US I really hope that the FBI
will fail their investigation and will have wasted a ton on money on this.
Even better that they are found convicted of wrongfully use of power or
something approaching that.

(I never said that Megaupload is innocent though, but I like well followed
procedures, they are the guardians of our liberties)

~~~
joering2
My gut tells me so much money went into this multi-national synchronized
operation that no judge in his sound mind will let all charges go. at least
they will have to break even.

~~~
jordan0day
I don't know, I think there have been some high-profile cases where a lot of
time and money was spent by the government, but the result was either no
conviction, or a conviction of a much lesser charge.

Now, since as you say, this was a large multi-national operation, I don't know
if all those charged will be extradited to the USA, or if they'll be tried in
other countries. I really have no idea about laws & procedures around the
globe, but if they are extradited to the USA, I wouldn't count the MegaUpload
folks out just yet. It's probably very dependent on how much of their assets
are frozen, which will affect how much of their money they can spend on legal
representation. (I say unfortunately, because it seems to me that in an ideal
justice system, everyone should have the same level [high!] of representation,
rather than some being able to "buy" better lawyers).

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bostonpete
So capitalism is good except when it comes to lawyers...?

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saucetenuto
Yeah, pretty much. One of the essential principles of Western democracy is
that everyone should be equal under the law, that what is a crime for a
peasant should also be a crime for a noble. If you can use money to purchase
better legal outcomes (through e.g. better legal representation), that
principle is undermined.

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powertower
If you think MU is the victim here and that the FBI are the criminals, you’ve
got it backwards.

They took down individual links only, while still keeping the infringing files
on the server, and all the other un-reported links to that exact file (they
also hashed each upload, so to detect duplicates, and complete the upload
instantly and have 1 data file... a fingerprint system they never used to
prevent re-uploads of copyrighted material that was reported).

Then they conspired (shown in leaked emails) to only follow DMCA requests
coming from large US entities (while ignoring requests coming from Mexico, for
example).

Their entire business revolved around tricking people into signing up for paid
accounts so they could download copyrighted material. And made 175 million
from it.

~~~
ryoshu
Say I've legally purchased an MP3 from Amazon and I decide to use my
UberUpload to host the file so I can access it from any device. UberUpload
decides to hash the file so it can depulicate the file and save disk space.
Some other user downloads a pirated copy of the file TheArrrrrrBay and uploads
it to UberUpload. The file hash is the same, so instead of storing the pirated
version, UberUpload points to the legal copy.

Now we have a single file with the same hash, but two pointers, one legal and
one illegal. If UberUpload deletes the file, it is deleting legal and illegal
content. If it deletes the illegal pointer, the legal copy of the file still
exists.

~~~
Tangaroa
"Say I've legally purchased an MP3 from Amazon and I decide to use my
UberUpload to host the file so I can access it from any device."

You would be committing copyright infringement at that point. The rest is
irrelevant.

~~~
Locke1689
This is highly unlikely. If this is the case then both Google Music and Amazon
CloudDrive are both illegal. As of right now there are no lawsuits underway in
this case. MP3.com has experienced some of these lawsuits but rulings so far
point to this being legal. There is also the fact that emailing an MP3 to
yourself would then constitute copyright infringement, which I find even less
likely for courts to uphold.

If you have any concrete evidence that storing copyrighted files in non-local
storage is copyright infringement I would be very interested in seeing the
case law.

~~~
Tangaroa
Any copying of a work under copyright is a crime unless there is an exemption
in law. It's deny by default. Google and Amazon probably pay license fees to
the RIAA. MP3.com was shut down for making unlicensed copies of songs that the
users already owned the CD for, so I don't see how you got from them being put
out of business to "being legal".

The law is US Title 17

§ 106. Exclusive rights in copyrighted works Subject to sections 107 through
122, the owner of copyright under this title has the exclusive rights to do
and to authorize any of the following: (1) to reproduce the copyrighted work
in copies or phonorecords; (2) to prepare derivative works based upon the
copyrighted work; (3) to distribute copies or phonorecords of the copyrighted
work to the public by sale or other transfer of ownership, or by rental,
lease, or lending; (4) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion pictures and other audiovisual
works, to perform the copyrighted work publicly; (5) in the case of literary,
musical, dramatic, and choreographic works, pantomimes, and pictorial,
graphic, or sculptural works, including the individual images of a motion
picture or other audiovisual work, to display the copyrighted work publicly;
and (6) in the case of sound recordings, to perform the copyrighted work
publicly by means of a digital audio transmission.

§ 107. Limitations on exclusive rights: Fair use Notwithstanding the
provisions of sections 106 and 106A, the fair use of a copyrighted work,
including such use by reproduction in copies or phonorecords or by any other
means specified by that section, for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright. In determining
whether the use made of a work in any particular case is a fair use the
factors to be considered shall include: (1) the purpose and character of the
use, including whether such use is of a commercial nature or is for nonprofit
educational purposes; (2) the nature of the copyrighted work; (3) the amount
and substantiality of the portion used in relation to the copyrighted work as
a whole; and (4) the effect of the use upon the potential market for or value
of the copyrighted work. The fact that a work is unpublished shall not itself
bar a finding of fair use if such finding is made upon consideration of all
the above factors.

Of the other sections from 107 through 122,

§ 108 allows libraries to reproduce "no more than one copy or phonorecord of a
work".

§ 109 allows the owner of a physical copy to sell it, but forbids renting or
lending software media (CDs etc) without a license.

§ 110 allows schools and churches to hold plays.

§ 111 allows the local loop of a network to repeat the network signal without
obtaining an extra license for every single retransmission.

§ 112 allows TV stations to save a single copy of their transmission.

§ 113 prevents reproduction of a "pictorial, graphic, or sculptural work"

§ 114 regulates music streaming services.

§ 115 forces the RIAA to allow anyone to license copies of "non-dramatic"
music (ringtones) at royalty rates set in law.

§ 116 allows jukebox owners to form a union to negotiate licensing fees.

§ 117 allows you to let your computer make a copy of software from disk to ram
to run programs.

§ 118 gives PBS extra powers in negotiating license fees.

§ 119 allows satellite TV to convert the satellite signal to a TV signal.

§ 120 allows people to photograph buildings.

§ 121 allows the government and nonprofits to make Braille copies of
copyrighted works.

§ 122 forces the satellite TV networks to obtain an extra license again.

Source:
[http://www.law.cornell.edu/uscode/html/uscode17/usc_sup_01_1...](http://www.law.cornell.edu/uscode/html/uscode17/usc_sup_01_17_10_1.html)

~~~
Locke1689
_"Cloud Player is an application that lets customers manage and play their own
music. It's like any number of existing media management applications. We do
not need a license to make Cloud Player available."_

Source: [http://arstechnica.com/media/news/2011/03/amazon-on-cloud-
pl...](http://arstechnica.com/media/news/2011/03/amazon-on-cloud-player-we-
dont-need-no-stinkin-licenses.ars)

In the following article[1], an intellectual property lawyer indicates that
Amazon's move is on unclear legal ground.

[1] [http://arstechnica.com/media/news/2011/03/music-industry-
wil...](http://arstechnica.com/media/news/2011/03/music-industry-will-force-
licenses-on-amazon-cloud-playeror-else.ars)

Your assertion that all copying is illegal is also false, as found in SCOTUS's
refusal to hear the Cablevision case in 2009.

In addition, in the _UMG vs. MP3.com_ decision the problem was that _MP3.com_
was doing the copying. The judge made a clear distinction between what MP3.com
was doing and time and space shifting, which are closer to what cloud storage
services are doing.

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dekz
From what I've read about Dotcom he seems like a shady guy. But in all
honesty, how is he worth persuing over some drug cartel in a different
country. (Note: I'm not making an opinion on whether drugs should be legal or
illegal). Was it really worth the potential international relations fiasco,
dollars spent on investigators; agents et al. All this wasted time and money
to go after a set of people who have allowed internet users to write 1's and
0's and share them.

Oh the humanity! How can these people be allowed to live. /s

The time for cyber villans is not now, when the streets are still full of
their ancestors.

~~~
rbanffy
Considering some people will neither stop doing drugs nor sharing copyrighted
files against the copyright holders' will, the authorities felt they could go
against the folks who were least likely to shoot back.

Now, seriously, comparing the amount of misery illegal drugs cause with the
amount illegal file sharing does is, at best, ludicrous. It's like all the
more serious problems are solved and now they have to turn their attention to
the copyright infringers.

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pnmahoney
This is crucial: the difference between the state of mind (mens rea)
requirement for the criminal charges, and the clear(!) violations of the civil
statutes at hand.

Even if, for some reason, this isn't getting Megaupload off the hook, it's
worth remembering why exactly this isn't going to (gasp!) destroy that "cloud"
thing everyone keeps writing about.

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normalfaults
Wasn't this article up on HN a couple of days ago from another site?

~~~
sycren
Yes but perhaps Stanford Law is a better primary source for this topic?

~~~
maxerickson
She is general council for a company that would really like a 'hey we tried'
interpretation of the DMCA [1] and only a 'Non Resident Fellow', so I'm not
sure I would read the posting as having the full editorial weight of Stanford
Law.

[1] [http://www.vibe.com/content/worldstarhiphop-exposed-truth-
be...](http://www.vibe.com/content/worldstarhiphop-exposed-truth-behind-
controversial-site)

~~~
inf0000
Jennifer Granick used to be the Director of Stanford's Center for Internet and
Society. She still teaches at Stanford Law regularly, and she was previously
Civil Liberties director at EFF and counsel at a boutique Internet law firm. I
don't know what you mean by "editorial weight" here, but you certainly
shouldn't discount anything the author says on account of where she works or
her current affiliation with the Center for Internet and Society.

~~~
maxerickson
What I meant was that Jennifer Granick posting an article to a blog hosted on
a Stanford server is different than Standford Law posting an article.

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franklindholm
What kind of DMCA system did Megaupload provide? And what kind of DMCA system
is required by law?

~~~
unreal37
Apparently they responded to DMCA requests to take down individual links. But
they did nothing to stop the same file from being uploaded again with a new
link.

I am not sure if that is required by the DMCA. I know youtube has this
"fingerprinting" system that stops copyrighted uploads, but is that the law?

~~~
vidarh
The argument they will presumably make is that their system is a deduplicating
file storage system. That one instance is infringing does NOT automatically
mean another instance is infringing. For example, assuming the court agrees
that personal backup copies can legally be kept, deleting the actual file
instead of the links could delete legitimate backup copies. See the number of
artists that were features as claiming to use Megaupload in their ads, for
example...

Even other public links might be legitimate, and Megaupload would not have a
way of determining that based merely on the presence of links.

Do I think they were aware that there were tons of illegal copies? Absolutely.
But whether or not they could blanket delete content without in effect
deleting content the people filing the DMCA takedown requests had no rights to
request taken down is an entirely different matter.

~~~
nooneelse
Indeed, a fingerprinting system doesn't tell you what "legal color" the bits
are (<http://ansuz.sooke.bc.ca/entry/23>). One copy of a file can be
infringing while another, identical copy, is legit.

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wyck
I know this might sound like a conspiracy theory, but why did kim dotcom host
servers in the U.S., clearly he knew about the issues that would present, so
maybe he wanted to test the system legally and get a bit of spotlight for
himself, the scapegoat turned avenger?

~~~
nikcub
MegaUpload ran a net profit margin of around 40%. Hosting anywhere else
probably would have wiped a lot of that out. Their main competitive advantage
was download speeds in the USA - if you read online comments there was
constant bitching about the speeds of other sites vs Megaupload.

But forget the download servers being hosted in Virginia - what is much much
worse is that they hosted their email servers at the same colo. This entire
case and almost all of the evidence is built up around the contents of that
email server. The feds obtained a secret warrant to get the details and most
of the facts in the indictment are based on what they found.

I wrote about this here:

[http://nikcub.appspot.com/posts/how-megaupload-was-
investiga...](http://nikcub.appspot.com/posts/how-megaupload-was-investigated-
and-indicted)

I hope this case makes it to a trial because I would like to find out what
probable cause was used to obtain the warrant to handover the email server.

~~~
cookiecaper
Another excellent argument to use encryption. It seems every couple of weeks
there is another high-profile incident where a lot of trouble would have been
saved if people had taken the time to set up Enigmail.

I would also love to see some advances in client-side steganography that could
be usable as easily as GPG. Probably the closest thing we have now is
TrueCrypt hidden volumes but that doesn't really work for email.

~~~
bri3d
Keeping encrypted data in the US is increasingly futile - see
[http://arstechnica.com/tech-policy/news/2012/01/judge-
fifth-...](http://arstechnica.com/tech-policy/news/2012/01/judge-fifth-
amendment-doesnt-protect-encrypted-hard-drives.ars) .

Steganography is a good idea, though.

(edited: corrected stenography -> steganography per too-aggressive
spellchecker usage)

~~~
cwp
I think you mean steganography. "Stenography" is writing down what someone is
saying.

~~~
cookiecaper
Indeed, I should have paid more attention to my spell checker which does not
recognize "steganography". Thanks.

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shahed0112
very good.

