
Kim Dotcom: The US Government is Wrong, Here’s Why - cleverjake
http://torrentfreak.com/kim-dotcom-the-us-government-is-wrong-heres-why-120326/
======
naner
_This begs the question of why Mega was so aggressively targeted._

I think it's pretty clear. This was one of the largest and easiest to use
file-locker services. I used it tons of times because it was so convenient and
the free service was much better than any of the other file-locker services.
If you had an ad-blocker installed, the site was almost too good to be true.
You could download huge files after a 30 second wait, at reasonably high
speeds, no captcha or any other hoops to jump through, and you could download
another file from the site immediately afterwards without wait (most sites
make free users wait between downloads). Files would stay up on the site
seemingly indefinitely, while other file-locker services would delete a file
after it was not accessed for a specific number of days.

Also Kim was a larger-than-life target. He was living extravagantly. Right
after he was arrested there was a huge Ars article about how ridiculous his
lifestyle and persona was. So now the government could say: "Hey look at this
asshole, he's getting rich off of piracy and stealing American jobs." They
couldn't have hoped for a better target.

Unfortunately, Kim was obviously thumbing his nose at US copyright law and he
thought he was untouchable because of his location. That might be a workable
strategy for someone keeping a lower-profile but if you piss off enough
powerful people they will find a way to get at you, legal or not. (As we are
seeing here.)

That being said, since the guy had a family he really should have found a more
respectable way to make a living. This was pretty reckless and selfish on his
part.

~~~
Karunamon

      >Kim was obviously thumbing his nose at US copyright law
    

I don't think providing a DMCA takedown process which was removing tens of
thousands of files a day counts as "thumbing his nose at US copyright law"

~~~
tptacek
The site had millions of users. Is the allusion to "tens of thousands" of
files supposed to be convincing? Why was there a limit at all? This is a site
that had to deal with (say) 10,000 takedowns a day; clearly, it had a rampant
piracy problem.

~~~
JumpCrisscross
The DMCA process allows a right-holder to submit a takedown request that the
content host will _review_ and, if found to be correct, act on with
"expeditious" timeliness.

The direct delete was not a takedown request; it was a deletion order. This is
beyond MU's DMCA responsibility.

I do not have evidence of rights holders abusing this feature at MU. But we do
know that the labels have made mistakes before [1]. It would be irresponsible
for MU to give a third party the ability to wipe large swaths of their servers
clean without oversight.

[1] [http://arstechnica.com/tech-policy/news/2011/12/ice-
admits-m...](http://arstechnica.com/tech-policy/news/2011/12/ice-admits-
months-long-seizure-of-music-blog-was-a-mistake.ars)

~~~
tptacek
_On or about April 23, 2009, DOTCOM sent an e-mail message to VANDER KOLK,
ORTMANN, and BENCKO in which he complained about the deletion of URLlinks in
response to infringement notices from the copyright holders. In the message,
DOTCOMstated that “I told you many times not to delete links that are reported
in batches of thousandsfrom insignificant sources. I would say that those
infringement reports from MEXICO of “14,000” links would fall into that
category. And the fact that we lost significant revenuebecause of it justifies
my reaction.”_

------
sequoia
I never used megaupload so I apologize if I'm way off, but I'm really
confused: After this "bust" it seems the received wisdom is that MegaUpload
was not some shady illegal file sharing site; whereas beforehand (if memory
serves), it was common knowledge that that was _exactly_ what it was. Some
friends who engage in such sharing tell me they "don't use bittorrent anymore,
DD [direct download] is easier."

Have I gone crazy? Do most BT tracker sites that feature "illegal" content not
advertise direct download sites as an alternative way to download stuff
illegally?

I'm really confused because I thought that "DD sites are a competitor to BT
for downloading stuff illegally" was common knowledge, now we're shocked-
SHOCKED that such unseemly allegations would be leveled at such respectable
Netizens as Megaupload. I am not commenting on whether copyright is broken,
merely "was this not a popular site to d/l illegal stuff?"

~~~
icebraining
Yes, it was a popular site to download stuff without a proper license. That
doesn't mean they were an "illegal file sharing site". Youtube is also a
popular site to view illegally shared videos, but they're not an "illegal
video sharing site".

~~~
tptacek
Youtube is a popular site to view unreliable, low-quality streaming versions
of unlawfully shared videos. Nobody thinks Youtube is a substitute for (say) a
Hulu+ or Amazon Prime subscription.

People also shared legitimate content on Napster. Once in a blue moon, someone
will use BitTorrent to transfer a Linux kernel. But we all know why those
services were or are popular.

Nerds appreciate good hacks, and are also infuriated by how fuzzy and
nondeterministic the legal system is. So they tend to vigorously adhere to
arguments like "how can you prove a DVDRIP of The Muppets wasn't a lawfully-
created backup of a purchased DVD stored for entirely legitimate reasons", or,
"how can you claim a service like MegaUpload is a gigantic scam that milks
millions of dollars out of piracy when people obviously do use it to store
Linux kernels". If the legal system worked the way nerds want it to, these
arguments would be totally convincing: if you can't prove _as if to a
programming language runtime_ that something is criminal, well, you shouldn't
even be able to get an indictment.

Of course, that's not how the legal system works. A gigantic portion of almost
every criminal case hinges on the question of intent, which involves proving
to a jury what someone was _thinking_. That's a head-explodey concept, because
you can't write a computer program to evaluate it. But it's also the basis for
many centuries of western law.

Similarly, if you find some awesome, clever scheme by which you can profit
from piracy without ever touching pirated content, the law is not going to
evaluate your culpability simply from the bits on your hard drive. The
totality of the circumstances involved in your scheme will be used to make a
case as to your interest in and promotion of piracy, much of which will
involve trying to read your mind based on tea leaves like "what sites did you
choose to run your ads on".

Similarly, the DoJ is _required_ to spend their time on cases they believe
they can win. It can be considered unethical for them to prosecute cases they
don't have a reasonable shot at. So as audibly as the pattern engine in the
nerd cortex may ring with recognition at the similarities between Youtube and
MegaUpload, they fact that Youtube isn't being prosecuted is irrelevant. The
DoJ will start with the cases it can win.

~~~
icebraining
_Youtube is a popular site to view unreliable, low-quality streaming versions
of unlawfully shared videos. Nobody thinks Youtube is a substitute for (say) a
Hulu+ or Amazon Prime subscription._

Maybe not, but for many people it is a replacement for MP3 downloading
services like iTunes. Sure, it doesn't offer all the same features (neither
did MU), but it offers enough.

 _People also shared legitimate content on Napster. Once in a blue moon,
someone will use BitTorrent to transfer a Linux kernel. But we all know why
those services were or are popular._

In my (anecdotal, yes) experience of watching people use it, that's exactly
why Youtube is popular too. User created content is an exception.

~~~
tptacek
There's a distinction to be drawn between copyrighted content and copyrighted
content of such quality that serves as a market substitute for the legitimate
product.

In either case, the DoJ has huge discretion about what cases it brings. A
major component of that discretion is its belief that it can win the case
(much harder against Youtube); another component is "what offender is so weak
that we're likely to maximize the precedential value of the case"; another is
"how much of a message will this send".

------
parfe
No surprise about the weakness of the charges. The goal has already been
accomplished. Megaupload has been destroyed without a single valid argument
being upheld.

~~~
Zirro
This raises the interesting question: What would happen if Megaupload actually
managed to win in court? Would any part on the other side be responsible to
pay for the damages caused to uptime and reputation?

Considering how profitable Megaupload was pre-takedown, we're talking enormous
sums.

~~~
geoffw8
Yeah, I think the interesting thing here is the flip-side of them (Mega) not
being a US entity in anyway. I read a while ago (no links I'm afraid) that
essentially a US agency/regulator has to give permission for a US based entity
to sue an agency like the FBI. I'd be very interested to see how it plays out
for someone like Mega, or their web hosts if in fact they did win. There'd be
no protection in place. They'd have to battle.

I'd be interested to know if any HN'ers have anything more solid to add?

~~~
mokus
"I read a while ago (no links I'm afraid) that essentially a US
agency/regulator has to give permission for a US based entity to sue an agency
like the FBI."

Is "sovereign immunity"[1] perhaps the concept you are referring to? It was
mentioned in an HN comment thread a while ago, but I don't remember the exact
context.

[1]
[http://en.wikipedia.org/wiki/Sovereign_immunity_in_the_Unite...](http://en.wikipedia.org/wiki/Sovereign_immunity_in_the_United_States)

~~~
geoffw8
Ahh yes that indeed was what I was referring too. Interestingly it is in fact
(if I'm reading this right) mentioned as being exempt: "certain claims of
monetary damages against the United States are exempt from sovereign immunity"
[1]

[1]
[http://en.wikipedia.org/wiki/Sovereign_immunity_in_the_Unite...](http://en.wikipedia.org/wiki/Sovereign_immunity_in_the_United_States#Certain_contracts_with_the_government)

~~~
mokus
I'm no lawyer, but it sounds like the Tucker act only applies to cases where
the government states or implies that it will pay something and then doesn't,
so the government can't just breach contracts with impunity.

------
badclient
Don't forget the MPAA CEO is none other than former Democratic Senator Chris
Dodd.

Also, Obama's copyright czar received a strong endorsement from the RIAA/MPAA.

It seems like Obama/White House should create another position that "competes"
with the copyright czar and takes the other extreme position.

(Obama voter here so don't really mean to make a political statement with this
post)

~~~
jbooth
My cynical guess is this was the price to keep the money flowing after they
opposed SOPA/PIPA publicly.

------
nextparadigms
Maybe Dotcom should run for New Zealand's Senate, too.

~~~
gassit
They don't have an upper house. Haven't for quite a while.

------
orenmazor
Now that you think about it, they probably chose the wrong guy to make an
example out of. A rich nerd who likes attention? of course he's going to make
this into a big deal (whether he's right or not)

------
mml
Hopefully the DOJ will eventually abandon ship. They won't forget how bad the
RIAA et. al. made them look any time soon if this happens.

~~~
fl3tch
Like the politicians who kept the Vietnam War going long after victory was
impossible, they don't understand sunk costs. They are all in at this point.
No prosecutor of a case this big will accept the embarrassment of merely
dropping the charges. They have to win, so this will go to court.

~~~
sp332
There's more than one way to win. They could declare that they "settled for
undisclosed terms", declare victory, and walk away.

------
billpatrianakos
Am I the only one who noticed how ridiculously flimsy this article was? Let me
sum it up:

Kim Dotcom says he did nothing wrong. Legal documents say one thing but
they're wrong because Kim says that they're wrong. Kim Dotcom would never lie,
right? So he must really have never done anything wrong.

There's also this weird backtracking that goes on in the article. First the
article claims that Mega is in the clear pretty much based on what Kim Dotcom
says and nothing more but then goes on to imply that even if Mega did do
something wrong it's totally cool because there are some people using it to
share photos and videos of themselves. And those people are US soldiers so the
Feds just _have_ to forgive Mega because after all, we can never imply a US
soldier would do anything unethical!

Then the 50 Cent thing... "Well, yeah I uploaded the 50 Cent song but I
totally bought it first and it was random and the the link was private! Just
take me at my word TorrentFreak". And TorrentFreak does take him at his word.

Then, because some big media companies wanted to do business with Mega it
somehow absolves them of any sin related to hosting and facilitating the
piracy of those same companies' works. Really?

And it just goes on...

Basically as long as what you say supports the TorrentFreak agenda they'll
just take you at your word and report what you say as truth. This is 5th grade
expository writing, not a news story. The sad thing is that people will read
this garbage and take it as truth because it sounds bad like you should be
outraged and it kind of sort of includes some semblance of fact.

I can't say if MegaUpload did anything wrong or not based on this story
because it's such a terribly written one. Lots of topic sentences, little to
no supporting details, and no one seemed to check if what Dotcom was saying is
really accurate.

~~~
lftl
I think it's pretty clear from the introduction that this would just be a one-
sided response to some of the government's weakest claims. It's essentially
just reading one side's legal brief and ignoring the other.

Particularly Dotcom completely ignored a number of the accusations the
government has made ([http://arstechnica.com/tech-policy/news/2012/01/why-the-
feds...](http://arstechnica.com/tech-policy/news/2012/01/why-the-feds-smashed-
megaupload.ars)). Namely, he didn't address at all that they paid users who
were popular uploaders with known infringing content. He also cherry picked
some instances of his own use of the system without addressing any of the
instances of employee abuses cited above.

------
chris123
Glad to see someone fight back against the the corruption that is American
politics and status quo and it's growing inquality and accelerating movement
towards dystopia. Maybe Dotcom committed crimes, maybe he didn't. I really
don't know. But I do know that people are bullied and/or fear- and/or debt-
slaved into submission every day and that the only to have a chance to change
anything is to stand up for other people and yourself and not go down without
a fight.

