
MegaUpload users plan to sue the FBI over lost files - joeyespo
http://torrentfreak.com/megaupload-users-plan-to-sue-the-fbi-over-lost-files-120126/
======
hncommenter13
This is more of a PR stunt than a winning legal strategy.

1\. The US government has sovereign immunity (except where specifically waived
by law) for virtually all its official acts, unless those acts violate the law
or constitutional rights.

2\. The supreme court has affirmed in a somewhat similar case, Kosak v. US,
465 U.S. 848 (1984), in which a set of paintings were detained (and possibly
slightly damaged) by Customs officials. More recently, the core holding in
Kosak was affirmed in Dolan v. US, a case regarding a specific waiver of
immunity for the US Postal Service (though the lower court was reversed).

3\. In a recent series of cases on criminal law (Medellin v. Texas, among
others), a majority of the Court made it clear that they do not view decisions
of the International Criminal Court as self-executing, meaning that they are
to be followed without the ability for the Supreme Court to review them.

In other words, this is a real longshot. At some point, if no criminal case
can be proved, the accused may get the servers back (and the users their
files). But if convicted (or if the assets are subject to foreiture as the
fruit of illegal activity), there's a good chance those servers are gone for
good.

Besides, how would the FBI establish that the files were non-infringing and
should be returned? In theory, the DMCA helps guard against this--had
MegaUpload actually followed the takedown procedures, the government could
have more faith that returning the servers to a surviving entity wouldn't put
the same infringing content back online.

Imagine a scenario where your financial advisor has control of some of your
money and also happens to be a drug dealer or insider trader. The police bust
him and seize his assets, but because money is fungible they can't tell
exactly where all the cash came from. Your money is frozen pending the outcome
of the case and a determination which assets should be released. You can sue
the accountant (he had a duty to you), but suing the government isn't going to
get you very far. Not exactly the same, but analogous, to my mind.

~~~
Natsu
This isn't like money, you can tell whose files are whose: people have their
login information and could be permitted to download those files they uploaded
in the first place.

And why would people want infringing files back, anyhow? They could just
download those from somewhere else. Also, it wouldn't be too bright to tell
the courts that you wanted some pirated files back. The files that nobody else
had a copy of are the ones that people will need returned to them.

~~~
tedunangst
People were using megaupload as a backup service? They don't have the
originals anymore?

~~~
Natsu
There have been quotes from people who lost their files in the stories about
this.

Why go to all that trouble to fight the FBI if you still have your files?
Doubly so if these folks were some kind of pirates, because that's sort of
like painting a giant target on their back.

~~~
Tyrannosaurs
My issue with this (other than the stupidity of not backing up an important
file) is that I bet that the MegaUpload ToS (sadly not available right now)
stipulate that they're not liable for any file loss.

If that's the case I don't think it would be unreasonable for the FBI to say
that anyone having lost files has only themselves to blame as this wasn't any
sort of guaranteed storage medium.

~~~
archangel_one
I don't think MU disclaiming responsibility for file loss automatically means
the FBI should be able to come in and pinch them all without consequence.
Every shopping centre has a sign in their carpark saying that they don't take
liability for any damage to cars parked there, but if someone drives into your
car in one they're still liable for damages, despite there not being any
guarantee of security originally.

~~~
pavel_lishin
> Every shopping centre has a sign in their carpark saying that they don't
> take liability for any damage to cars parked there, but if someone drives
> into your car in one they're still liable for damages, despite there not
> being any guarantee of security originally.

That doesn't sound right. Why would a shopping center be liable for someone
else's actions, specifically someone hitting your car?

~~~
DanBC
In England: You can't disclaim liability. Thus, putting a sign in the car park
saying "we're not liable for anything that happens to your car while parked
here" means nothing; if something they did makes them liable they're still
liable even if they have the sign up.

~~~
pavel_lishin
That part makes sense; what doesn't is why would a shopping center be liable
at all if someone hit your car while in their parking lot.

I guess you could claim that the way the parking lot was built didn't
provide... enough visibility? Or something? I dunno.

------
redthrowaway
This in no way will be helped by the fact that the lawsuit is being
facilitated by "pirate parties" all over the world. _We_ know what the pirate
parties stand for; a jury would not.

Isn't this precisely the kind of case the EFF regularly takes up?

~~~
nknight
[none of this means the cases will go anywhere]

1\. Not many US federal court cases end up in front of juries anymore.

2\. Many jurisdictions outside the US don't use juries at all, others use them
only in criminal cases, not civil.

3\. The plaintiffs in these cases would be the users harmed, not the "Pirate"
parties, and even if a jury were used, it is unlikely a judge would allow the
defense to make anything out of the fact that a "pirate party" were involved,
as it's entirely irrelevant and potentially prejudicial.

4\. The EFF generally takes up cases it thinks might be winnable.

~~~
im_dario
Catalan pirate here. EFF joined to the initiative today. We are going to
publish it soon and all USA citizen will be redirected to EFF.

------
benologist
These sites are meticulously designed to force you into paying for premium
access to download files. They have it down to such a fine art people actually
make videos on youtube demonstrating how to download files for free from sites
like MegaUpload.

After following a download link:

1) enter captcha in top right

2) on the next screen you'll enjoy a forced delay of a minute unless you click
one of the many routes to a premium, paid account

3) after the timer finishes a save button will appear, click on that and
you'll trigger the download dialogue from your browser unless... free users
may only download one file at a time so if you are already downloading a file
you'll get a message about now telling you to start again after your other
file finishes. If it's a big file you're downloading you'll especially
appreciate the capped download speed because you had the audacity to maneuver
around their premium account funnel instead of paying to receive a file
someone is sharing

You'd have to be delusional, or in torrentfreak's case pandering for ad
impressions, to pretend anyone would bother putting their friends, family and
colleagues through all those hoops when they have email, skype, msn, dropbox,
yahoo, free hosting, $1 hosting, $2 hosting, $3 hosting, $4 hosting and so
many other, easier options available for non-pirated content.

<http://www.youtube.com/watch?v=MO1JabWsVTQ>

~~~
redthrowaway
>You'd have to be delusional, or in torrentfreak's case pandering for ad
impressions, to pretend anyone would bother putting their friends, family and
colleagues through all those hoops when they have email, skype, msn, dropbox,
yahoo, free hosting, $1 hosting, $2 hosting, $3 hosting, $4 hosting and so
many other, easier options available for non-pirated content.

I suppose you'd have to be similarly delusional to use Windows Media Player or
QuickTime when VLC is out there?

People use poor but popular products all the time. It doesn't make them liars
or crooks.

~~~
benologist
Windows Media Player and Quicktime might be lame but they don't actively work
against the user unless you pony up some cash to use the "can open a file in
just 2 clicks" version.

Sending your friends/family/colleagues a link on MegaUpload (or similar) was
essentially putting a paywall between them and the file you actually wanted to
give them. For pirated content it makes sense, you have no concern for who
comes along to download it and of course they gave you a cut of the money too:
[http://www.groovypost.com/howto/review/paid-to-upload-
upload...](http://www.groovypost.com/howto/review/paid-to-upload-uploading-
com-vs-megaupload-vs-refile/)

For <legitimate work> it's just nonsense when there's so many high profile,
easier ways to get that file from a to b.

~~~
dman
How do you explain people using the trial version of winzip then?

------
ceol
Neither the Torrent Freak article nor the Pirates of Catalonia[0] page say
anything about suing the FBI— only submitting a complaint against the agency.

[0]: <http://megaupload.pirata.cat/>

edit: I've realized the first step to suing is filing a complaint. However, no
where on the Pirata site does it say they're _suing_ , so I'm skeptical.

~~~
elliottcarlson
The title of the TorrentFreak article does say it, however the Pirates of
Catalonia page indeed does not.

~~~
im_dario
PIRATA.CAT lawyers (and other pirate parties legal teams) are working on this.
This hasn't been done before.

------
michaelfeathers
Is it just me, or is there an incredible disconnect over "intellectual
property"? Copyright interests like the RIAA and MPAA pressure governments to
perform these raids which typically involve a court order to seize physical
property (servers, etc) without any cognizance of the "property" they contain.

They seem to want it both ways.

~~~
jonhendry
So do the pirates, though, it seems to me. They usually aren't big proponents
on being able to control your data.

Information wants to be free? Well, part of freeing something is that you can
lose it forever.

~~~
chii
"Information wants to be free? Well, part of freeing something is that you can
lose it forever."

hang on, thats not right! Being free here means, free to obtain, reuse and
distribute. Right now, the information is most decidely NOT free, because the
feds are in control of it.

They could've made a copy of the data as evidence - there isn't any need at
all to remove the servers. This is digital data, the hardware has absolutely
no bearing on the correctness of the evidence. I bet they were somehow
'persuaded' by the MAFIAA to sieze the hardware. I feel its unfair that lobby
groups has enough power to use public money to achieve their goals.

------
elliottcarlson
Ignoring the way Megaupload was taken down and focusing on fault - am I wrong
in believing that there is no case against the FBI with regards to end users
files? Wouldn't the actual target be Megaupload themselves (regardless of
current situations) since they are the ones responsible for hosting, and thus
"losing" their customers files?

~~~
jQueryIsAwesome
FBI: "We just closed a bank."

Clients: "And our money???"

FBI: "Sorry, they were laundering money so all your/their money is ours now"

~~~
elliottcarlson
I am not a lawyer, but as far as I understand, that civil recovery depends on
if anything was recovered to return. If, for example, the servers were
confiscated, and no one has given passwords to access the servers to retrieve
content, then Civil Recovery is not possible. This would still leave
Megaupload as the entity who would get sued. If civil recovery is however
possible, then there would be due process and retrieving X amount of files for
X amount of people as well as supplying burden of proof that they are indeed
the legitimate owners of said content, then this would be a lengthy process
that could be surrounded in bureaucratic red tape for a while - and still such
a lawsuit, especially at this point in time would not do anything.

I am not arguing if the whole thing is right or wrong, nor am I arguing that
the law is right or wrong - but from my understanding this is correct. If
anyone can clarify my possible misconceptions then that would be greatly
appreciated.

~~~
Karunamon
So the feds swoop in, run off with multiple terabytes of data on the pretense
that some percentage of it might be pirated, and there isn't fuck all a mere
mortal can do about it.

And people wonder why US law enforcement is so reviled?

