Law Professor: Megaupload Prosecution A 'Depressing Display Of Abuse Of Government Authority'

from the tell-me-about-it dept

We've written plenty about the problems with the government's case against Megaupload, but it's still interesting to see law professor Eric Goldman's rather brutal assessment of the government's case, suggesting that it's clearly a case of abuse by the government:

The resulting prosecution is a depressing display of abuse of government authority. It’s hard to comprehensively catalog all of the lawless aspects of the US government’s prosecution of Megaupload, so I’ll just focus on two:

1) Trying to hold Megaupload criminally liable for its users' actions. Criminal copyright infringement requires willful infringement, a very rigorous scienter level. I discuss the implications of this high scienter requirement in more detail in my decade-old article on warez trading. Megaupload’s business choices may not have been ideal, but Megaupload has a number of strong potential defenses for its users' activities, including 512(c), lack of volitional conduct and more. Whether it actually qualified for these is irrelevant; Megaupload’s subjective belief in these defenses should destroy the willfulness requirement. Thus, the government is simply making up the law to try to hold Megaupload accountable for its users' uploading/downloading.

2) Taking Megaupload offline. Megaupload's website is analogous to a printing press that constantly published new content. Under our Constitution, the government can’t simply shut down a printing press, but that's basically what our government did when it turned Megaupload off and seized all of the assets. Not surprisingly, shutting down a printing press suppresses countless legitimate content publications by legitimate users of Megaupload. Surprisingly (shockingly, even), the government apparently doesn't care about this “collateral,” entirely foreseeable and deeply unconstitutional effect. The government's further insistence that all user data, even legitimate data, should be destroyed is even more shocking. Destroying the evidence not only screws over the legitimate users, but it may make it impossible for Megaupload to mount a proper defense. It's depressing our government isn't above such cheap tricks in its zeal to win.

The government has also been shockingly cavalier about the collateral consequences of its prosecution on the marketplace. Legitimate web hosts, and their investors, are quaking in their boots that they will be next. It doesn’t help that the content industry is circulating a “kill chart” of its next desired targets.

The more we hear and see about the government's case against Megaupload, it really appears that the government was relying almost entirely on the fact that Megaupload looked bad. It's hard to deny that there were plenty of things that Kim (in particular) did that makes him appear pretty obnoxious. But being a crass showoff doesn't automatically make you a criminal. Even worse, the government's action in the case to date seem to be doing everything possible to undermine their own case as they try to railroad Megaupload. I'll admit, when I heard about the shutdown, I (perhaps naively) assumed that the government had a pretty solid case. To take down a whole site, they must have the goods. In fact, in talking to another law professor in the hours after the indictment was made public, I was cautioned that there simply must be more to the case, because what was in the indictment just didn't seem complete. Perhaps there's something hidden in the back pocket of the DOJ, but so far it seems like (former anti-piracy exec) US Attorney Neil MacBride ran an effort against Megaupload that was more focused on how it looked to his former colleagues than what the law actually says.


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    Jeremy, May 1st, 2012 @ 8:47am

    Thugs in suits

    The sad fact is most of our government is made up of two kinds of people, Thugs in Suits, and Yes men. I've been rather furious at the state of the United States Government for ages, but I can't do anything about it other than wail with impotent fury.

     

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      gorehound (profile), May 1st, 2012 @ 10:04am

      Re: Thugs in suits

      I am totally on the side of Megaupload no matter what you think.I do not think so much that MU had illegal files as they hosted millions of Accounts that had nothing to do with illegal stuff.No I am pissed at how & what our own government did.Read a bunch of the News on the case and you will come to the same conclusion.
      And this is not the first time Washington Politics has overstepped its bounds and done illegal and immoral actions.
      Down with this Corrupted Government !
      The Day is Coming when you are going to get what you deserve.
      I am thinking very bad times will happen in the next ten years thanks to the Cancer called Washington.

       

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        Jeremy, May 1st, 2012 @ 10:25am

        Re: Re: Thugs in suits

        I'd suggest we get together and possibly consider how to change our corrupt government but I'm afraid you might be an FBI plant trying to get me involved in some sort of plot so that I can be thrown in gitmo for the rest of my life. Sorry.

         

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      Anonymous Coward, May 1st, 2012 @ 11:47am

      Re: Thugs in suits

      If you do not like your government being composed of thugs in suits, then the answer is to vote the bums out. The people of the USA and of New Zealand have their duty to perform, come the next election.

       

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        John Fenderson (profile), May 1st, 2012 @ 12:09pm

        Re: Re: Thugs in suits

        I keep hearing that, but I have yet to get a good answer to the logical followup: ...and vote for who, instead?

        The problem is not the politicians (they're the symptom). The problem is that the system itself has collapsed. We have become Rome.

         

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      Anonymous Coward, May 3rd, 2012 @ 7:41pm

      Re: Thugs in suits

      Lets Boycot the mOVIES!!!

       

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    Anonymous Coward, May 1st, 2012 @ 8:48am

    Professor Goldman = Pirate Apologist. Sigh.

     

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      arcan, May 1st, 2012 @ 8:50am

      Re:

      Seriously, give me ONE decent reason how a person who is pointing out how the GOVERNMENT is abusing its powers at the whims of a bunch of bureaucrats is a pirate apologist.

       

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        Anonymous Coward, May 1st, 2012 @ 8:54am

        Re: Re:

        He can't and won't. Haven't you been here long enough to realize that the shills just do drive-by nonsense statements?

         

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          Anonymous Coward, May 1st, 2012 @ 9:27am

          Re: Re: Re:

          Nonsense? How could anyone think that he's not a pirate apologist at this point? You guys are too much.

           

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        Anonymous Coward, May 1st, 2012 @ 8:55am

        Re: Re:

        hes not kowtowing to special interests at the cost of the public.

         

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        Anonymous Coward, May 1st, 2012 @ 9:08am

        Re: Re:

        Seriously, give me ONE decent reason how a person who is pointing out how the GOVERNMENT is abusing its powers at the whims of a bunch of bureaucrats is a pirate apologist.

        He's arguing for MegaUpload, a bunch of pirates, hence he's a pirate apologist--by definition. He's trying to frame this as the big bad government wrongly going after a cute cuddly teddy bear. Give me a break. Arguing that the government won't be able to prove a "high scienter requirement" is just wishful thinking. He thinks that MegaUpload's "subjective belief in these defenses should destroy the willfulness requirement." I think a jury is likely not to believe that MegaUpload was in good faith and their willfulness is not hard to establish. The arguments about this being just like shutting down a printing press are rather specious. There's arguments either way on the First Amendment issues. Of course, we all know which way the professor feels about it--it's a constitutional nightmare! That's just one opinion--from an apologist. And good grief with the argument that not preserving the servers will destroy exculpatory evidence. That's just grasping at straws. You guys can whine and try and frame this as an innocent website being wrongfully treated, but suffice it to say that not everyone shares that opinion.

         

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          Anonymous Coward, May 1st, 2012 @ 9:20am

          Re: Re: Re:

          you are probably the reason scientists discovered abortions. obviously too late for the likes of you.

           

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          Anonymous Coward, May 1st, 2012 @ 9:23am

          Re: Re: Re:

          Sigh. That's a lot of words to use in place of "Look over there instead of at this mess made by the gubmint!"

           

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            Anonymous Coward, May 1st, 2012 @ 9:42am

            Re: Re: Re: Re:

            The mess is MegaUpload, a website built from the ground up for piracy. The government is cleaning up that mess. And I think they're doing an awesome job of it. Obama's got my vote for reelection. I want more of THIS. Watching the cockroaches scurry about is fun.

             

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              kirillian (profile), May 1st, 2012 @ 9:57am

              Re: Re: Re: Re: Re:

              I know it might be hard or time consuming, but if you want to contribute to the discussion, please consider replying to the well-reasoned comments that are posted all over this page rather than just throwing out one-liners and responding to the reactionary comments. You are adding nothing to the discourse by ignoring those who've spent a lot of time crafting replies.

               

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              Chargone (profile), May 1st, 2012 @ 9:58am

              Re: Re: Re: Re: Re:

              ... ... ...

              ... ...

              ...

              just how stupid ARE you?

              because either you actually believe what you're saying, proving you're about as intelligent as your average rock...

              or you're a shill who somehow thinks this is an effective argument... proving you're about as intelligent as your average rock.

               

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              The eejit (profile), May 1st, 2012 @ 10:29am

              Re: Re: Re: Re: Re:

              The government shouldn't be cleaning up this mess. That's the point. When you have two small trade organisations giving the Government a list of targets to "hit" and the government trying to follow that up, YOU HAVE A PROBLEM. And it isn't MU that's the problem.

               

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              The Groove Tiger (profile), May 1st, 2012 @ 8:16pm

              Re: Re: Re: Re: Re:

              Sure, a piracy apologist like you would definitely like a piracy apologist like Obama help piracy apologists like the FBI and the piracy apologist government to piracy apologetically seize MegaUpload assets and run their site to the ground for the piracy apologist RIAA.

              I can piracy apologist too!

               

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              techflaws.org (profile), May 1st, 2012 @ 9:56pm

              Re: Re: Re: Re: Re:

              The government is cleaning up that mess

              Really? And how's that working out for them?

               

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          MrWilson, May 1st, 2012 @ 9:23am

          Re: Re: Re:

          "He's arguing for MegaUpload, a bunch of pirates,"

          Apparently the government doesn't seem to have enough evidence to prove this point, but also he's not arguing for MegaUpload. He's arguing that the government's case is weak. There's a difference. He's not saying that MegaUpload never did anything wrong. He's saying that the government has screwed up its case against MegaUpload.

          An actual pirate-apologist would be saying something to the effect of, "So MegaUpload is a bunch of pirates, so what? They can violate copyright all they want because it's okay!" I didn't see any of that in Goldman's article. I also didn't see anywhere where Goldman gushed over MegaUpload or implied they were anything close to a "a cute cuddly teddy bear."

          You, like the government, apparently needs to do a better job of backing up your claims with actual evidence and not conjecture and name-calling.

          "Of course, we all know which way the professor feels about it--it's a constitutional nightmare! That's just one opinion--from an apologist."

          That is the definition of an ad hominem attack. Even if he were an apologist, which he is clearly not, it wouldn't necessarily make his professional opinion invalid. Try again.

           

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            Anonymous Coward, May 1st, 2012 @ 10:00am

            Re: Re: Re: Re:

            Methinks you don't know pirate apology when you see it. Let me guess: You don't think Mike Masnick is a pirate apologist either, do you?

             

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              Anonymous Coward, May 1st, 2012 @ 10:37am

              Re: Re: Re: Re: Re:

              Ha...counter with attack on Masnick. That's like the definitive move for someone who is too lazy to actually address a reply.

               

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              MrWilson, May 1st, 2012 @ 7:09pm

              Re: Re: Re: Re: Re:

              You seem to think that anyone who isn't demanding the heads of copyright violators and the passage of restrictive new censorship laws in favor of profiteering corporate interests is a pirate apologist.

               

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              The Groove Tiger (profile), May 1st, 2012 @ 8:13pm

              Re: Re: Re: Re: Re:

              Only if your definition of pirate apologist is "anybody that you dislike".

               

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          Anonymous Coward, May 1st, 2012 @ 9:24am

          Re: Re: Re:

          Not everyone need share that opinion...that's the point of departure for any discussion. Further, just saying you disagree with someone's argument does not add anything to the discussion. Provide an argument of your reasoning behind your disagreement and we can proceed with reasonable discussion.

          Please provide an argument demonstrating that the government will be able to prove "high scienter requirement." How has it been done before? What were the circumstances? How is this case the same as previous cases? How is it different? and so on...I'm certainly not going to make arguments on your behalf...that's your job.

           

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            Anonymous Coward, May 1st, 2012 @ 9:56am

            Re: Re: Re: Re:

            Having read the indictment, it's clear that there's also charges of direct infringement. MegaUpload can't hide behind safe harbors for that--let's not forget that part. Nor do I think the emails quoted in the indictment show a company that was in good faith--I don't think the safe harbors will protect them. I disagree that the Mega Conspiracy was simply acting on the subjective good faith belief that they were doing no wrong. I don't think a jury will believe that either.

            As far as running through case law to examine scienter--I'm sorry, but I'm too busy this afternoon to do that. Sounds like fun though. If you have something you want to share, please do--I'd like to read it.

             

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          Anonymous Coward, May 1st, 2012 @ 9:25am

          Re: Re: Re:

          "You guys can whine and try and frame this as an innocent website being wrongfully treated, but suffice it to say that not everyone shares that opinion."

          While I respect the difference of opinion, I have a **huge** problem using an opinion to shut down a website. Can we agree that innocent until proven guilty should generally still apply?

           

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            Anonymous Coward, May 1st, 2012 @ 9:38am

            Re: Re: Re: Re:

            While I respect the difference of opinion, I have a **huge** problem using an opinion to shut down a website. Can we agree that innocent until proven guilty should generally still apply?

            Of course the presumption of innocence applies. That doesn't mean that warrants for arrest and seizure still don't issue upon showing probable cause. You guys seem to think that it's completely improper to shut down a website until after there's been a full trial on the merits and all appeals exhausted. It's ridiculous. The internet isn't special. If there's probable cause to believe that a a website is being used for criminal acts, then I don't think they can hide behind the First Amendment and say they're unseizable.

             

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              ToFit, May 1st, 2012 @ 10:21am

              Re: Re: Re: Re: Re:

              He is in a different country so No US based law should apply to this case.

               

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              Josh in CharlotteNC (profile), May 1st, 2012 @ 10:31am

              Re: Re: Re: Re: Re:

              If there's probable cause to believe that a a website is being used for criminal acts, then I don't think they can hide behind the First Amendment and say they're unseizable.

              I don't think Goldman, or any of the previous posters are saying that. They are saying that when the government is going to knowingly shutdown protected First Ammendment speech along with copyright infringement, it requires a higher burden of proof than probable cause.

              Since the government is so insistent on destroying evidence, I think it is reasonable to conclude that it is likely they will be unable to meet that higher burden.

              Of course, I don't expect you to agree with me. I am admittedly a piracy apologist, and proud of it.

               

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                Anonymous Coward, May 1st, 2012 @ 10:47am

                Re: Re: Re: Re: Re: Re:

                I don't think Goldman, or any of the previous posters are saying that. They are saying that when the government is going to knowingly shutdown protected First Ammendment speech along with copyright infringement, it requires a higher burden of proof than probable cause.

                They are making that argument, but not convincingly. They point to obscenity cases that have some helpful sounding language, but they never explain how that analysis is applicable here.

                 

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                  Anonymous Coward, May 1st, 2012 @ 7:41pm

                  Re: Re: Re: Re: Re: Re: Re:

                  That was explained in this article. Did you fail to read it? Or do you not agree that shutting down a virtual printing press is the same as a real one?

                   

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                Anonymous Coward, May 1st, 2012 @ 11:41pm

                Re: Re: Re: Re: Re: Re:

                "I don't think Goldman, or any of the previous posters are saying that. They are saying that when the government is going to knowingly shutdown protected First Ammendment speech along with copyright infringement, it requires a higher burden of proof than probable cause."

                It's a losing argument, as the courts have already ruled that SOME protected free speech may be harmed or blocked when illegal speech is stopped, and that is an acceptable trade off.

                The courts are very clear that they do not want a weak amount of protected speech to become wall that you can hide illegal speech behind.

                It should also be pointed out that there is no simple or easy way in Mega to clearly ascertain the rights on private user files. We know looking at movie files that the rights holder has not granted distribution rights in this manner, so it's a slam dunk. What is in someone's private free locker, well, who knows?

                Further, considering that many of the lockers are anonymously operated, or point to free disposible email accounts, it's difficult to figure out who really "owns" the account, and then to figure out if they really have the rights.

                Quite simply, nobody has been able to explain why 50 million people were using this site, why 45 million of them never uploaded a single file, and why it was one of the webs most popular sites. I cannot imagine any sane person suggesting that free file hosting for your private and personal files is something that would generate that level of traffic.

                Walks like a duck, quacks like a duck, shits like a duck... somewhere along the line, even a court of law would agree that it appears to be a duck - no matter what type of blind you try to hide it behind.

                 

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              AzureSky (profile), May 1st, 2012 @ 10:55am

              Re: Re: Re: Re: Re:

              so let me get this strait, your argueing for guilty till proven innocent....good to know.

              our systems all about guilty till proven innocent after all.

              a true innocent till proven guilty system would be one where the accused isnt referred to as the perpetrator or arrested and jailed before being proven guilty.

              sorry but being arrested and having all your possessions taken, your website destroyed, your reputation sullied is quite the opposite of an assumption of innocence.

               

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              Anonymous Coward, May 1st, 2012 @ 11:00am

              Re: Re: Re: Re: Re:

              My understanding of seizure is this: The government takes away what is yours for the duration of the trial. If, at the end, you are found not guilty your goods are restored to you.

              By this definition, the U.S. Government should be paying for the costs of maintaining the servers. By this definition also, it is utterly and completely inexcusable to allow the data that is MegaUpload's to be deleted.

               

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          Chosen Reject (profile), May 1st, 2012 @ 9:27am

          Re: Re: Re:

          You can call him an apologist if you wish. However, you can't call him a pirate apologist unless he's apologizing for piracy. If instead, as it appears, he's standing for justice, then he's a justice apologist. Allow me to quote someone better than me, who stood up for justice for people in a much more serious situation than copyright infringement could ever be:
          The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.

          This however is no Reason why the Town should not call the Action of that Night a Massacre, nor is it any Argument in favour of the Governor or Minister, who caused them to be sent here. But it is the strongest Proofs of the Danger of Standing Armies.

          óJohn Adams, on the third anniversary of the massacre
          You can dislike what MegaUpload does, you can hate Kim Dotcom all you want, but when you throw justice under the bus simply to get people out of the way that you don't like, then you become an apologist for tyranny, corruption, greed, and abuse of power to name a few.

           

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            GMacGuffin (profile), May 1st, 2012 @ 9:35am

            Re: Re: Re: Re:

            Thanks man. Saved me having to bust out the John Adams example.

             

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            Anonymous Coward, May 1st, 2012 @ 9:40am

            Re: Re: Re: Re:

            "You can call him an apologist if you wish. However, you can't call him a pirate apologist unless he's apologizing for piracy. If instead, as it appears, he's standing for justice, then he's a justice apologist"

            Not really - he is a justice apologist because he is dismissing piracy (and money laundering) as being unimportant and seemingly not in the government and the people's interest to take action on.

            It should also note that in Mr Goldman's published papers, you can also see that he is a Google apologist, and seemingly a solid freetardian futurist. Not really much surprise in seeing him come out against the Mega action, considering where he generally stands.

            Those who can do, those who can't teach - and those who live in a dream become tenured professors.

             

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              btr1701 (profile), May 1st, 2012 @ 11:48am

              Re: Re: Re: Re: Re:

              > he is a justice apologist

              A justice apologist? Are you seriously suggesting that justice itself is now an undesireable quality?

              > because he is dismissing piracy (and money
              > laundering) as being unimportant and seemingly
              > not in the government and the people's interest
              > to take action on.

              He did no such thing. He merely criticized the manner in which it was being handled.

               

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                Anonymous Coward, May 1st, 2012 @ 12:42pm

                Re: Re: Re: Re: Re: Re:

                The term "justice apologist" was a poke at Chosen Reject. It's a stupid term - he's not an apologist, he's a support of the free and open (and apparently nearly lawless) internet, and doesn't seem to see this case as worthy of legal action.

                He said:

                "Trying to hold Megaupload criminally liable for its users' actions. Criminal copyright infringement requires willful infringement, a very rigorous scienter level. "

                Yet that seems to ignore all of the actions by Mega to hide the popularity of movie files, of the emails discussing the situations, and the use of shell companies to filter money out of the corrupt enterprise and launder it. If Kim had nothing to hide, why create this elaborate charade of multiple companies, pay outs, commissions, and so on?

                He seems to be ignoring what has been publicly discussed so far, and is more intent on getting plug for his 10 year old, mostly no longer relevant paper (OTBE).

                I would say that the Professors comments on this case are completely in line with most of his other public comments on web piracy, freedom, and so on. It doesn't make him right, it just makes him one opinion in a sea of opinions.

                 

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                  John Fenderson (profile), May 1st, 2012 @ 3:02pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Yet that seems to ignore all of the actions by Mega to hide the popularity of movie files, of the emails discussing the situations, and the use of shell companies to filter money out of the corrupt enterprise and launder it.


                  You say all this stuff as if it were established fact. It's far from it. I'm familiar with these accusations, and initially even thought there might be something to them (based on the where-there's-smoke line of thinking).

                  However, there seems to be no evidence whatsoever to support any of this. At least, the arguments and evidence that have been presented so far don't even pass the laugh test.

                  My problem with what's happened to MU is that a company was put out of business with, apparently, little in the way of even probable cause to support the action. Further, this whole thing is clearly driven by a handful of large, influential corporations. The only solid motive I can see is just that they didn't like MU.

                  It's pretty obvious, based on how the US government has been behaving recently about all this, that they have nothing.

                  It looks for all the world like this is a gross injustice. This does even more damage to the credibility of the US legal system and law enforcement in general.

                   

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                    Anonymous Coward, May 1st, 2012 @ 11:46pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    "You say all this stuff as if it were established fact. It's far from it. I'm familiar with these accusations, and initially even thought there might be something to them (based on the where-there's-smoke line of thinking)."

                    Purposely publishing a top list that SPECIFICALLY ignores infringing files... that's pretty much a slam dunk right there.

                    If you run a commission program, generally you would look at the type of material that is being downloaded most often (making your affiliates the most money) to see if you could generate similar content as a lower price. Considering that this is the lifeblood of the company (how money is actually made), you don't think perhaps that they looked at one or two accounts, or opened a couple of files along the way?

                    "My problem with what's happened to MU is that a company was put out of business with, apparently, little in the way of even probable cause to support the action."

                    There is all sorts of probable cause. The evidence is all over the internet. It's in how the companies were structured. It's in the emails, in the actions taken by the principals, and the way things operated.

                    The only gross injustice is people standing up for a guy who made his money ripping off others.

                     

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                      PaulT (profile), May 2nd, 2012 @ 1:06am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      "The only gross injustice is people standing up for a guy who made his money ripping off others."

                      Even Manson, Dahmer and McVeigh deserved fair trials. I don't give a crap if you're found standing over 4 corpses with a bloody knife in your hand, you deserve due process. I'm sorry if "gross injustice" in your eyes translates to "a reasonable chance of defending against allegations", but that doesn't fly with me, especially in cases where *potential* profit is all that's being discussed - nobody died as a result of MU's actions, legal or illegal.

                      If Megaupload are found to be guilty in the eyes of the law, fine, throw the book at Dotcom and his accomplices. Until then, all you're doing is attacking those who want there to be fair trials, due process and the burden of proof on those making the allegations. Your opposition to these basic rights being upheld is only making one side of this argument look bad, and it's not mine.

                       

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                  Anonymous Coward, May 1st, 2012 @ 6:45pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Why are you so desperate to have the US justice system torn down? Do you think it will benefit you in the long run, somehow?

                   

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                  Anonymous Coward, May 1st, 2012 @ 6:46pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Why are you so desperate to have the US justice system torn down? Do you think it will benefit you in the long run, somehow?

                   

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                •  
                  identicon
                  Anonymous Coward, May 1st, 2012 @ 6:46pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Why are you so desperate to have the US justice system torn down? Do you think it will benefit you in the long run, somehow?

                   

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                  Anonymous Coward, May 1st, 2012 @ 6:47pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Why are you so desperate to have the US justice system torn down? Do you think it will benefit you in the long run, somehow?

                   

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        •  
          identicon
          Anonymous Coward, May 1st, 2012 @ 9:37am

          Re: Re: Re:

          "There's arguments either way on the First Amendment issues."

          Actually, boy, there aren't.
          The only things you can legally present to impede someone's First Amendment rights are defamation and deliberate lies that cause harm/destruction to life and property.
          Neither case applies in the MegaUpload persecution...I mean prosecution.

           

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            Anonymous Coward, May 1st, 2012 @ 10:31am

            Re: Re: Re: Re:

            Actually, boy, there aren't.
            The only things you can legally present to impede someone's First Amendment rights are defamation and deliberate lies that cause harm/destruction to life and property.
            Neither case applies in the MegaUpload persecution...I mean prosecution.


            Wow, really? I take it you've never even glanced at the actual law before deciding you fully understood it.

             

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          Leigh Beadon (profile), May 1st, 2012 @ 9:37am

          Re: Re: Re:

          He's arguing for MegaUpload, a bunch of pirates, hence he's a pirate apologist--by definition. ... ... That's just one opinion--from an apologist.

          Sounds like you're saying: Megaupload is already guilty and any defence of them is automatically invalid because it's a defence of a guilty party.

          Good to know you respect the ideals of justice.

           

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            Anonymous Coward, May 1st, 2012 @ 11:22am

            Re: Re: Re: Re:

            Guilty until proven innocent. The United States would rather see ten innocent people punished than let one guilty person not receive the death penalty.

             

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          Gwiz (profile), May 1st, 2012 @ 9:39am

          Re: Re: Re:

          Arguing that the government won't be able to prove a "high scienter requirement" is just wishful thinking.

          Nope. Based on existing case law from what I read.


          He thinks that MegaUpload's "subjective belief in these defenses should destroy the willfulness requirement." I think a jury is likely not to believe that MegaUpload was in good faith and their willfulness is not hard to establish.

          Really? Believing that what one's actions are defensible in the eyes of the law isn't enough to destroy the willingness argument? What planet do you live on? It's pretty simple: if I believe that what I am doing is lawful, then I am not willfully breaking the law. And what makes you think the USG will ever let this come to a jury trial?


          The arguments about this being just like shutting down a printing press are rather specious.

          No at all. It's pretty much identical to that. Enormous amount of speech from completely innocent parties have been silenced.


          And good grief with the argument that not preserving the servers will destroy exculpatory evidence.

          What, you think it won't? So only the prosecution gets to cherry-pick evidence? Yeah, that's a fair trial, isn't it.


          You guys can whine and try and frame this as an innocent website being wrongfully treated, but suffice it to say that not everyone shares that opinion.

          I don't give a shit about your opinion or Dotcom's or anyone else's. What I care about is my government following the Constitution and not abusing it's power to return a favor or two to some legacy gatekeeper industry.

           

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            Anonymous Coward, May 1st, 2012 @ 9:51am

            Re: Re: Re: Re:

            "The arguments about this being just like shutting down a printing press are rather specious.

            No at all. It's pretty much identical to that. Enormous amount of speech from completely innocent parties have been silenced."

            Actually, it is a pretty poor argument. One could say that your computer is your printing press, and your server is just the paper, the result of the printing. Are you suggesting that the government should not be able to seize printed copies anymore either?

            The Mega owners could very easily use their printing press (their computers) to "print" a new site. Everything else is just paper and the apparatus to distribute it.

             

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              The eejit (profile), May 1st, 2012 @ 10:32am

              Re: Re: Re: Re: Re:

              And yet, the Feds could be out doing more productive things, like thinking up ever more elaborate terorrist plots to justify their funding.

              Moreover, the USG has seized the servers upon which the data is stored and is refusing to give them back in their condition when they weere seized. If you think that's justice, then I have a Joker to loose upon New York.

               

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              Gwiz (profile), May 1st, 2012 @ 11:03am

              Re: Re: Re: Re: Re:

              Actually, it is a pretty poor argument. One could say that your computer is your printing press, and your server is just the paper, the result of the printing. Are you suggesting that the government should not be able to seize printed copies anymore either?

              Then think of it this way: It's a library where instead of the works of published authors being stored, it's the works of the individual patrons being stored. The Constitution demands that the scope of seized speech be limited as much as possible to avoid unnecessary prior restraint. That clearly did not happen here.

              Also, whether another avenue exists is immaterial, it's still an unconstitutional prior restraint of speech.

               

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              John Fenderson (profile), May 1st, 2012 @ 12:15pm

              Re: Re: Re: Re: Re:

              Are you suggesting that the government should not be able to seize printed copies anymore either?


              I think the suggestion is that the government should not be able to destroy printed copies prior to trial.

               

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          RD, May 1st, 2012 @ 10:17am

          Re: Re: Re:

          "And good grief with the argument that not preserving the servers will destroy exculpatory evidence. That's just grasping at straws. "

          Oh yeah, because the best way to mount a legal defense with supporting evidence is to have that evidence destroyed before trial.

          Do you even think before you speak?

           

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            Anonymous Coward, May 1st, 2012 @ 10:29am

            Re: Re: Re: Re:

            If his lawyers could show there's exculpatory evidence, they'd be allowed to have it. Give me a break with these baseless conspiracy theories.

             

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              Jay (profile), May 1st, 2012 @ 11:07am

              Re: Re: Re: Re: Re:

              That data had already come out. Namely, the USG is MU's best customer.

               

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              Mike Masnick (profile), May 1st, 2012 @ 12:04pm

              Re: Re: Re: Re: Re:

              If his lawyers could show there's exculpatory evidence, they'd be allowed to have it. Give me a break with these baseless conspiracy theories.

              Out of curiosity, how do they show the evidence when they can't even see the data and the gov't wants it destroyed?

               

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                Anonymous Coward, May 1st, 2012 @ 12:31pm

                Re: Re: Re: Re: Re: Re:

                Out of curiosity, how do they show the evidence when they can't even see the data and the gov't wants it destroyed?

                Simple, Mike. They tell the judge a plausible story about how something that's on those drives might possibly be used defensively. Apparently, they haven't been able to even do this. And it's not like MegaUpload doesn't know what information is on those drives. It's their information, their drives. If some kind of exculpatory evidence is on the drives, they should be able to describe it to the judge. This, they haven't done (as far as I know). It's not some conspiracy to take away their defense, or whatever crazy thing you've cooked it up to be.

                 

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                  RD, May 1st, 2012 @ 1:16pm

                  Re: Re: Re: Re: Re: Re: Re:

                  "And it's not like MegaUpload doesn't know what information is on those drives. It's their information, their drives. If some kind of exculpatory evidence is on the drives, they should be able to describe it to the judge."

                  Describe to us, right now, without looking at your hard drives, in detail, all the files you have: type, content, and exact location on each drive. Now multiply by that task by about 25 BILLION times.

                  Its amazing the stuff you "if it looks like a pirate its guilty CHOP THEIR HEADS OFF NO TRIAL!!!" shills come up with to justify your oppressive actions.

                   

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                  Anonymous Coward, May 1st, 2012 @ 1:21pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Still affirming the consequent.

                   

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                  John Fenderson (profile), May 1st, 2012 @ 1:22pm

                  Re: Re: Re: Re: Re: Re: Re:

                  And it's not like MegaUpload doesn't know what information is on those drives.


                  Actually, it is very much like that, as the vast majority of that data was put there and managed by their users.

                  If some kind of exculpatory evidence is on the drives, they should be able to describe it to the judge. This, they haven't done (as far as I know)


                  If you were talking about some kind of "smoking gun" document, you might have a point. However, MU is in the position of trying to prove a negative. The only way to begin to do that would be to engage in a large data-mining operation to show patterns of usage (or lack of them).

                  So MU would necessarily have to say "we need the entire database". Which they have, indeed said.

                  . It's not some conspiracy to take away their defense, or whatever crazy thing you've cooked it up to be.


                  Well, the whole thing really looks a lot like a conspiracy of sorts. Or, following the old maxim, it could just be incredibly gross incompetence. I'm not sure which is more damning.

                   

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                  Gwiz (profile), May 1st, 2012 @ 1:26pm

                  Re: Re: Re: Re: Re: Re: Re:

                  They tell the judge a plausible story about how something that's on those drives might possibly be used defensively.

                  Why should they have to in the first place? That seems awfully backwards. A defendant has to ask for permission to be able mount their own defense? WTF.

                  What if the evidence they seek is ALL the data on the servers?

                  Since the majority opinion in Sony Corp. of America v. Universal City Studios, Inc. states that it "...does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses...." all they need to show is that it was used for things other than copyright infringement.

                  And your misguided belief that Mega would know everything in a dataset that size is incredulous.

                   

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                  Mike Masnick (profile), May 1st, 2012 @ 3:45pm

                  Re: Re: Re: Re: Re: Re: Re:

                  And it's not like MegaUpload doesn't know what information is on those drives. It's their information, their drives.

                  Oh, now I understand. You have no freaking clue what you're talking about.

                  The whole point is that Megaupload merely provides storage. They don't know what's on the drives.

                  So I'm out on this thread. You've proven not only that you're limited to ad hominem attacks, but that you're also completely ignorant on what you're arguing about.

                   

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                    Anonymous Coward, May 1st, 2012 @ 5:11pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    LOL! What? You think MegaUpload is going to go through all that data to find some magical information that gets them off the hook. Good luck with that. The fact is, they have had a chance to make the argument to the judge that they need that information. Not even MegaUpload's pricey attorneys could find anything good to argue on the point.

                    I'm not sure how you think I have no clue. If MegaUpload had a good argument, they would have made it. The facts speak for themselves, though. You just don't like the answer. It's just more sour grapes from you (and the professor, for that matter).

                    We all know that you've already decided that MegaUpload is being treated unfairly, no matter what actually happens. Working backwards must be nice. So simple to view things that way.

                     

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                      techflaws.org (profile), May 1st, 2012 @ 10:14pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      The facts speak for themselves, though.

                      Exactly, the government looks like clueless thugs that does not seem to be able to mount a proper trial. Dunno how this helps your argument though.

                       

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              John Fenderson (profile), May 1st, 2012 @ 12:17pm

              Re: Re: Re: Re: Re:

              If his lawyers could show there's exculpatory evidence, they'd be allowed to have it.


              Such evidence would likely be on the servers. Which they can't access.

               

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              Anonymous Coward, May 1st, 2012 @ 1:20pm

              Re: Re: Re: Re: Re:

              Affirming the consequent.

               

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          fairusefriendly (profile), May 1st, 2012 @ 10:34am

          Re: Re: Re:

          He's arguing for MegaUpload, a bunch of pirates, hence he's a pirate apologist--by definition.

          no he is not, america still has the principle of INNOCENT until PROVEN guilty.

          So mega upload is not a bunch of pirates until they get convicted.

           

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            AzureSky (profile), May 1st, 2012 @ 11:07am

            Re: Re: Re: Re:

            in reality this is just words, if your accused of anything, your treated as guilty and even referred to as guilty in all court proceedings till you have proven your innocence.

            theres a huge disconnect between the word of law and the implementation/practice of said law.

            speaking as somebody whos been there and watched friends also go through this shit....our legal systems only "fair" if your extremely rich of famous in this country, and even then, its a crapshoot if somebody even richer and more powerful wants you taken down a notch....

             

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          Anonymous Coward, May 1st, 2012 @ 1:16pm

          Re: Re: Re:

          "He's arguing for MegaUpload, a bunch of pirates, hence he's a pirate apologist--by definition....."

          "The arguments about this being just like shutting down a printing press are rather specious."

          You know you wouldn't recognize a specious argument if one walked up to you, shook your hand, and said "Hello, I'm a specious argument and I'd love to be your opening statement!"

           

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        PaulT (profile), May 1st, 2012 @ 11:44am

        Re: Re:

        Because, somehow, standing up for the rights of those other than major corporations means that you're a pirate, just as independent funding tactics and business models that belong in this century somehow mean you support piracy. I've literally been attacked as a pirate on this site for describing the process I went through while legally buying a DVD to illustrate how many problems there can be. How this makes sense is beyond me, and I'm someone trying to help address the real problems!

        The sad thing is, there's enough people both in government and outside of it who buy into the lies to make this a real problem outside of the handful of obsessed trolls on this site...

         

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      G Thompson (profile), May 1st, 2012 @ 8:56am

      Re:

      Are you sighing because you understand that was the most wittiest, stupid and troll-like statement you could come up with because you actually believe the article and cannot be shown to have an approval of anything published here.

      Or

      It is the sigh of the releasing of air from the now full vacuum that is inside your cranial compartment

       

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      Anonymous Coward, May 1st, 2012 @ 9:11am

      Re:

      Professor Goldman = Pirate Apologist. Sigh.

      Thank you for demonstrating what a brainless troll would say just to make itself a buck.

      Now please go put the fascists' privates back into your smegma-encrusted mouth like a good little sub-human.

       

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      Anonymous Coward, May 1st, 2012 @ 9:33am

      Re:

      "Professor Goldman = Pirate Apologist. Sigh."

      I guess actually following the rule of law means nothing to you, boy.

       

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        Anonymous Coward, May 1st, 2012 @ 10:12am

        Re: Re:

        I guess actually following the rule of law means nothing to you, boy.

        Nope. It means a lot to me. I'm concerned about everyone's rights: MegaUpload's, the victims', third-parties', etc. It seems to me that Mike and his crew only care about one side's rights--the alleged infringers. I don't operate that way. All the professor has is some one-sided arguments that the government is doing something wrong. Obviously there's arguments the other way, too, and I happen to think those are the better arguments. It's not so black and white though, since new ground is being broken here.

         

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          arcan, May 1st, 2012 @ 12:04pm

          Re: Re: Re:

          just think of it this way. the bill of rights guarantees certain things. such as a speedy and fair trial. it does not guarantee IP rights. since it is the only thing that can change parts of the constitution, rights outlined in it should trump all other rights given by congress within reason. therefore 5th amendment rights should trump any prosecution or IP rights in a case. while I do agree megauploads business should be restricted for the duration of the trial. the US governments actions in this case are an inexcusable violation of the constitution.

           

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      Mike Masnick (profile), May 1st, 2012 @ 9:58am

      Re:

      I love how when anyone -- no matter how much more credible than you -- has an informed opinion that disagrees with you, all you do is revert to ad hominem. At least I know I'm in good company, as per usual.

       

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      • This comment has been flagged by the community. Click here to show it
         
        identicon
        Anonymous Coward, May 1st, 2012 @ 10:05am

        Re: Re:

        More credible than me? LOL! I'm just an anonymous poster, Mike. Of course I'm not trying to be credible. I see the good professor is apologizing for your pirate friends--just like you! You must be so happy.

         

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          The eejit (profile), May 1st, 2012 @ 10:34am

          Re: Re: Re:

          "The Good Professor", as you so eloquently put it, is willing to put his name to things. You are not. Ergo the Professor > You in the credibility stakes.

           

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            Anonymous Coward, May 1st, 2012 @ 10:57am

            Re: Re: Re: Re:

            The professor is a super-smart guy, and I enjoy/follow his work. He's still biased in favor of tech/piracy. That's fine with me. I just don't want people to think they're getting an unbiased, academic approach. I think he's promoting an agenda, not looking at things neutrally--hence my initial comment. He's not giving argument and counterargument, he's arguing for MegaUpload's side. He's hyper-critical of the government but seemingly giving MegaUpload the benefit of the doubt. That's textbook pirate apology.

             

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              Anonymous Coward, May 1st, 2012 @ 11:01am

              Re: Re: Re: Re: Re:

              Its not anything else? Just pirate apology? Is that all?

               

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              Anonymous Coward, May 1st, 2012 @ 11:03am

              Re: Re: Re: Re: Re:

              Or, you know, textbook innocent until proven guilty.

               

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                Anonymous Coward, May 1st, 2012 @ 11:06am

                Re: Re: Re: Re: Re: Re:

                Who says they're not innocent until proven guilty? It's a nice sounding talking point, but then you guys never explain how anyone's guilt has been presumed. Where exactly is the violation of constitutional rights here?

                 

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                  AzureSky (profile), May 1st, 2012 @ 11:17am

                  Re: Re: Re: Re: Re: Re: Re:

                  hes not been proven guilty yet hes been arrested, his home and all his accets taken away, hes under house arrest now.

                  how is that not an assumption of guilt?

                  if he where presumed innocent the wouldnt have had his home raided by anti terrorist troops, he wouldnt have had all his assets seized, he wouldnt have been imprisoned and then put on house arrest.

                  sorry but this is all guilty till proven innocent, rather then the flowery words of our system "innocent till proven guilty"

                   

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              KHRZ, May 2nd, 2012 @ 7:51am

              Re: Re: Re: Re: Re:

              If you want people to care about your comments you should try to strap your own bias first before accusing others. Do you have actual arguments and not just ad hominems?

               

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          Mike Masnick (profile), May 1st, 2012 @ 12:05pm

          Re: Re: Re:

          I see the good professor is apologizing for your pirate friends--just like you! You must be so happy.

          Amazing that you find defending the rule of law to be "apologizing for piracy."

          Sad. But amazing.

           

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            Anonymous Coward, May 1st, 2012 @ 12:22pm

            Re: Re: Re: Re:

            Amazing that you find defending the rule of law to be "apologizing for piracy."

            Sad. But amazing.


            It's cute how you turn the defendants into the victims (the classic pirate-apologist bait-and-switch move). In case you didn't notice, Mike, your pirate friends at MegaUpload are finding out about the rule of law. The side defending the rule of law is the government, not your criminal friends. Give me a break with siding with the pirates every time, but then pretending like you're not pro-piracy. It doesn't bother me nearly as much that you're pro-piracy as it does that you lie about it. Sad. But amusing.

             

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              Anonymous Coward, May 1st, 2012 @ 1:38pm

              Re: Re: Re: Re: Re:

              Defending the rule of law and justice are not the same thing. In fact they're often opposites. It's also not a given that the government is defending the rule of law just because it's the government. Governments, even the US Government, have historically been perfectly fine with ignoring the law when it suits them.

              All your arguments stem from your inherent assumption that the government can't not uphold the law and can't not be just.

               

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              Anonymous Coward, May 1st, 2012 @ 2:07pm

              Re: Re: Re: Re: Re:

              What you don't seem to understand is that if those in goverment are allowed to do whatever they think is best instead of what is proper legal procedure then you invite tyranny.

              If megaupload is guilty and have the book thrown at them so be it(never liked kim or the site anyway) but let's not lose sight of more important issues in the process.

               

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      Anothermouse, May 2nd, 2012 @ 11:31am

      Re:

      Anonymous Coward = Domestic Terrorist. Sigh.

       

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      Graf Cackle, Sep 29th, 2012 @ 8:54pm

      Re:

      @Anonymous Coward

      Your user handle seems entirely appropriate. Personally I boycott mickey-mouse copyrighted content from the entertainment industry(generally I'm not missing much). Your business model is dead.

      What next, force people to watch your garbage, and mandatory fees for all.

      Rentier!

       

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    arcan, May 1st, 2012 @ 8:49am

    i vote that a ton of people tip the police about the execs of hollywood committing illegal acts just so they have to spend millions to keep themselves out of prison. that way they will be too busy saving their rears to screw up the world any further. or nuke them from orbit. it is the only way to be sure.

     

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      Anonymous Coward, May 1st, 2012 @ 8:59am

      Need to find a terminally ill big star

      We need to find a terminally ill big star and get him to accuse the production and studio execs of his last film of fraud (for Hollywood accounting).

      He has to be terminally ill, because, frankly, I think what would happen to his career would make what happened during the McCarthy era look like kindergarten.

       

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      That One Guy (profile), May 1st, 2012 @ 1:49pm

      Re:

      Nah, wouldn't work, with all their 'donations to the government' they're pretty much all on the 'do not touch' list as far as the law is concerned.

      The nuke option sounds interesting, but I really don't want to see what mutated hollywood/music execs look like...

       

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    identicon
    Anonymous Coward, May 1st, 2012 @ 8:50am

    'the government was relying almost entirely on the fact that Megaupload looked bad'
    sorry. dont agree with that statement at all. I'll bet you anything, the government relied entirely on the bullshit, lies and false accusations, yet again, from the entertainment industries. the US government and all US law enforcement depts involved in this fiasco should be severely condemned, fined excessively to the same degrees that Mega would be, stopped from ever conducting this type of operation again without written and indisputable proof of wrong doing on the part of those accused and jail time given to the ones that orchestrated this whole shambles!

     

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    Benjo (profile), May 1st, 2012 @ 8:52am

    Department of Justice?

    Murderers and pedophiles get trials and due process, but if Hollywood points a finger at something they don't like we just throw out the constitution?

     

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      arcan, May 1st, 2012 @ 8:53am

      Re: Department of Justice?

      because the families of victims and murderers don't have millions to put into reelection campaigns.

       

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        Anonymous Coward, May 1st, 2012 @ 9:41am

        Re: Re: Department of Justice?

        The very definition of what's wrong with the USA's political system (and lots of others for that matter). Said it before... everything gets updated as time goes by, except the political system. It's time for an Obama-less reform.

         

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          Anonymous Coward, May 1st, 2012 @ 10:01am

          Re: Re: Re: Department of Justice?

          "It's time for an Obama-less reform."

          Republicans with their 1% corporate masters would be better how...?

           

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            AzureSky (profile), May 1st, 2012 @ 11:25am

            Re: Re: Re: Re: Department of Justice?

            i dont think thats what he was saying, i think it was ment to point out that the obama reform has been bupkis if anything its been the opposite.

            as a friend of mine and I Like to say, Obama:best republican president ever.

             

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            Anonymous Coward, May 1st, 2012 @ 1:40pm

            Re: Re: Re: Re: Department of Justice?

            And that's the problem with the two party system. Don't like Obama? Must be a republican.

             

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          RD, May 1st, 2012 @ 10:38am

          Re: Re: Re: Department of Justice?

          "The very definition of what's wrong with the USA's political system (and lots of others for that matter). Said it before... everything gets updated as time goes by, except the political system. It's time for an Obama-less reform."

          The very definition of whats wrong with the USA's political system is people like YOU. Contrary to what you believe, the entirety of our nations political problems did not commence on Jan 20, 2009. Nor are they limited to liberal/democrat/whatever-you-want-to-demonize-today parties or ideologies alone.

          Wake the fuck up and get a clue about what is REALLY going on. It's about power, and government rule. This is not a partisan issue, its a human nature issue. Give someone power, and they will use it. Give someone absolute power, and they WILL abuse it. History has shown this to be true in every case.

           

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            AzureSky (profile), May 1st, 2012 @ 11:27am

            Re: Re: Re: Re: Department of Justice?

            and give them absolute power for an indefinite time, and they will abuse it exponentially as time goes on.

            best argument for term limits working in any govt related job i have ever heard.

             

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      Cowardly Anonymous, May 1st, 2012 @ 10:39am

      Re: Department of Justice?

      Because the government hasn't yet realized that the people have decided that all rights under the Constitution also apply to foreigners and any international case the US is tangentially involved in.

      I'm not disparaging this, by the way, just pointing out the disconnect between the gov's point of view (these aren't Americans, so we don't have to follow the Constitution) and the people's point of view (We hold these truths to be self evident that all men were...).

      In other words, it is the ancient debate between the spirit and the letter, between loop-hole exploiters and those who abide by obvious intent.

       

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        John Fenderson (profile), May 1st, 2012 @ 12:22pm

        Re: Re: Department of Justice?

        Because the government hasn't yet realized that the people have decided that all rights under the Constitution also apply to foreigners and any international case the US is tangentially involved in.


        Actually, this underlying principle has been in play for a very, very long time. It's been heralded by all branches of government at various times.

         

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    Anonymous Coward, May 1st, 2012 @ 8:54am

    theres nothing else needed

    the takedown was about scaring the shit out of everyone, in order to succeed in that, all they needed to do was flex muscle. there is no case to be made, one is not necessary.

    this was nothing more than a favor by a government employee to former business partners.

    this is the exact definition of corruption.

     

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    Mr. Smarta** (profile), May 1st, 2012 @ 8:54am

    Aww...

    Awww... It looks like our 'wittle govewnment' doesn't wike smawtasses. They need to pick up their ball and wun home to mommy. And then take away everyone's rights.

    *knock**knock**knock*

    .... Hang on. Someone's at my door.

     

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    Baldaur Regis (profile), May 1st, 2012 @ 8:56am

    ...being a crass showoff doesn't automatically make you a criminal.
    A criminal, no. A target, yes.
    On the upside, I don't believe Dotcom is the type of person who will be satisfied when the US offers a deal or drops the charges. Being the egoist he is, he'll fight, in the media and the courts.

     

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    Anonymous Coward, May 1st, 2012 @ 9:02am

    SIGH, another law professor getting bribed by the big piracy satanic cartel to turn to the dark side.

    Poor Goldman, I hope he sleeps well at night knowing that he aborted baby jesus so he could better worship pirate Hitler.

     

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    Tech42 (profile), May 1st, 2012 @ 9:03am

    Not an abuse of Authority

    The U.S. government does not have the authority to prosecute companies (even within its own borders) for "looking bad".

    This is an abuse of power, not authority.

    (/English_Teacher)

     

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    G Thompson (profile), May 1st, 2012 @ 9:03am

    Eric has missed one vital problem that outweighs all the others in this case.

    A Non US corporation cannot be held criminally liable for any US crime.

    Though I already have the understanding that if the USG tries to ratify such a law, reciprocity will instantly come into affect and US corporations will be fully liable for such criminal charges as criminal Negligence, Murder, Conspiracy, Interference, etc.. under other sovereignties, and some of those foreign jurisdictions actually break through the so called glass ceiling holding management at multiple levels fully liable as well.

    Seems Interpol might have there hands full dealing with the influx of warrants.

     

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      Planespotter (profile), May 1st, 2012 @ 9:06am

      Re:

      But... but... it was megaupload.COM and as we all know all .COM domains must comply with US Law, or whatever the legacy parts of the entertainment industry says the law should be, whether they are in the US, Tuvalu or The Vatican City.

       

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      Anonymous Coward, May 1st, 2012 @ 9:16am

      Re:

      A Non US corporation cannot be held criminally liable for any US crime.

      That is simply untrue.

       

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        G Thompson (profile), May 1st, 2012 @ 9:28am

        Re: Re:

        Sorry, maybe I should of given more specificity.

        Whilst a NON US Corporation can be held criminally liable by say a Grand Jury (which most foreign jurisdictions take with a grain of salt [or is that a ham sandwich]) to be actually brought to trial they like any defendant needs to be formally and with appropriate authority served with those charges.

        That's the problem , you cannot under any of your criminal codes or judicial procedures legally serve any foreign corporation that does not reside upon US soil. (there are many reasons for this not the least being jurisdictional, comity, treaty & trade issues)

        Since Megaupload did not reside upon US soil in any way shape nor form (the .com doesn't even get considered since it is not a fixed item ie: to land)

        Therefore I stand by what I stated, interestingly so does the US District Court Judge O'Grady who is overseeing this case, who has raised that and awaits the DoJ to submit there reasonings on why they claim the serving of papers was proper and should therefore proceed.

         

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          K Liber, May 2nd, 2012 @ 4:52am

          Re: Re: Re:

          People are extradited all the time to the US for crimes that "reach into" the US.
          It does not matter where the person is located, only where the crime occurs. Mail fraud is an example, tax evasion another. The US government must convince the other government that it is a crime and give evidence. The other government serves papers, arrests and so forth.

          Whether this was done correctly in this case, I don't know. That the US does this abusively, overreaches, is arrogant, and so forth is often clear. But your statements about law are incorrect.

           

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            G Thompson (profile), May 2nd, 2012 @ 6:28am

            Re: Re: Re: Re:

            You are not reading I am specifically talking about the actual corporation of MegaUpload Inc. which is a separate Legal Entity in it's own right and the USG is trying to prosecute separately from Kim Dotcom et.al

            An Individual can dependant on the Extradition treaty be extradited yes, A corporation by its very nature cannot be extradited. A non US citizen can (thought they need to have ties with US Soil too) be charged and served then extradited yes.. A Corporation can be charged never extradited and never served.

            You are either confusing or conflating two separate issues. One of physical individuals and the other of an Intangible Entity made up of shares. Corporation Law 101

             

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    Josef Anvil (profile), May 1st, 2012 @ 9:06am

    they kinda have to win

    Regardless of our assessments of this case, it would appear this is one that the US Government absolutely has to win. Otherwise, what was the point? If the US Government doesn't win it's case then the whole site just goes right back up and the DOJ looks extremely bad. Not to mention the blowback, as there will be A LOT of people asking about due process. It's already frightening that there appears to be almost no due process when it comes to taking down websites, in fact, most of the website seizures have been predicated on the preservation of evidence.

    They picked a very high profile target and with that many eyes on a case littered with dubious evidence and procedures, they kinda have to win it.

     

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      Anonymous Coward, May 1st, 2012 @ 11:18am

      Re: they kinda have to win

      You are absolutely right. There's just too much at stake for the US Government on this one. That's why people need to watch this case like a hawk.

      We should fully expect the US Government to bend, break, and make up on the spot any laws they need to in order to ram an extradition and then a guilty verdict through. The government doesn't have a case. They know it. We know it. Kim knows it.

      And the worst part is, after this finally plays out, even if the government fails to convict Kim of anything, they'll do whatever it takes to make sure Kim is unable to successfully counter-sue them for damages to his company. People need to hold the government's feet to the fire on this one.

       

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    DannyB (profile), May 1st, 2012 @ 9:08am

    The wheel is turning

    The wild west days of the Entertainment industry looking good and the Internet looking bad are changing.

    The truth is that the Internet looks good and the Entertainment industry looks worse and worse every day.

     

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    identicon
    Anonymous Coward, May 1st, 2012 @ 9:31am

    Whither the Roman^h^h^h^h^h American Empire?

     

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    Anonymous Coward, May 1st, 2012 @ 9:37am

    Now let's hope Obama gets re-elected... for police-state's sake.

     

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      AzureSky (profile), May 1st, 2012 @ 11:42am

      Re:

      oh yeah, like the other sides alternative will be any better.

      let me say this again, neither side give a fuck about "we the people" they only care about their own power and wealth, both sides get huge donations(bribes) to run for office from big content.inc, big pharma and so on, they only care what their corporate masters want, and then only because they want to get re-elected :/

       

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    Anonymous Coward, May 1st, 2012 @ 9:48am

    There will come a time when the common man can express a tiny amount of physical power through the internet (such as hurting the campaign finances of a Congressman). When that happens, government officials will be forced to obey the public or be booted out of office.

     

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    identicon
    Kevin, May 1st, 2012 @ 9:53am

    Baseless talk

    Baseless talk.

    Mr. Anonymous Coward: Go and troll/flame else where like 4chan where you hail from.

     

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    DOlz, May 1st, 2012 @ 10:06am

    True

    "But being a crass showoff doesn't automatically make you a criminal."

    Because if it did most of Hollywood and a large percentage of politicians would be behind bars. What a wonderful world that would be.

     

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    TDR, May 1st, 2012 @ 11:59am

    Simple rule of thumb that societies really should learn to follow, I think: No one who wants power should ever have it. And only those who don't seek it should be given it, and only for very limited times.

    The whole problem with a system where positions are obtained by vote is that it encourages the pursuit and desire for power, no matter how transparent the process. A better way, as I think I've said before, would be a random selection process with terms lasting only one year at all levels and a stipend based on a more average income, somewhere in the five digit range. Make public service more akin to jury duty than the corrupt, backscratching porkfest it is now. And lobbying would be forbidden and harshly punished.

     

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    Anonymous Coward, May 1st, 2012 @ 12:08pm

    Anyone else notice that the Pirate Bay isn't on the list of websites the MPAA wants shut down? I wonder why...

    Oh wait, that's right. They already tried that, TPB was back up in three days. For anyone who hasn't seen it, the list of legal threats against TPB, and their responses is absolutely hilarious.

    http://thepiratebay.se/legal

    It's unfortunate Megaupload is still down, just goes to show why companies prefer to not do business inside the USA.

     

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    DCX2, May 1st, 2012 @ 12:55pm

    Government doesn't want this to go to trial

    If this never goes to trial, then they can re-use this ability to target other file lockers. If this goes to trial and they lose, they can never go after any other file lockers. It's in their best interest to let this case be dismissed without any judgment on the merits.

    The whole point is just to scare the other file lockers and make life difficult for the people who run it. Anyone else - indie artists distributing their own songs, fans who are distributing new mods and maps for their favorite games, and people who wanted a cloud backup of their important files - is just collateral damage.

     

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    That Anonymous Coward (profile), May 1st, 2012 @ 8:20pm

    The indictment was never meant to lead to a trial.
    It was meant to do what it did, it shocked the cyberlocker ecosystem. Several of them have blocked the US entirely, several have shifted to a model where only the uploader can access the files they put up, several have folded.
    This of course has nothing to do with the fact that despite the promise of 6 strikes coming soon, it can not track cyberlocker downloads. /s
    The indictment is meant to be a scalp that can be shown off to scare companies and people.
    This is a common tactic used by lawyers, a prime example being the $200,000 (or was it $250,000) "win" Marc Randazza won against an alleged pirate. The headline on the press release gave the huge number, and left of it was a settlement not a win. It left out the detail that the actual amount having to be paid was merely $25,000 but if the defendant made his payments on time and never misbehaved ever again the actual amount owed would be knocked down over time. Shortly there after John Steele was touting this huge amount in his shakedown letters to help scare more people into settling the allegations against them rather than face that huge amount of money being awarded against them.

    This was meant to scare people into behaving, limiting access to new technologies with various uses all at the behest of 2 cartels trying to keep a business model at the expense of innovation.

    Expect to see more new ideas moving outside of the US, avoiding .com and other domains that the US claims give them the right to pursue foriegn companies, and the US being wholesale blocked from using these new tools.

    Dan Bull breaking into the charts shows the power of the P2P network for unsigned artists, this scares the hell out of the legacy players who need people to believe without them you can not make it at all. They throw dirt at everyone who makes it without them, claiming its not enough where the artists are rejoicing at an actual connection with fans and seeing the direct support rather than waiting for a check in 4 months with huge subtractions made for the gatekeeper.

    The internet has changed the world we live in, but some still look for the ways it MIGHT be used to harm them instead of how they can use it to succeed.

     

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    Anonymous Coward, May 2nd, 2012 @ 2:58am

    And of course none of the shills can justify at the end of the day why we need SOPA, since they're so insistent that the government followed the law on this one.

     

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    anonymouse, May 2nd, 2012 @ 4:04am

    Extreme justice

    This is a case of a business interest in America destroying competition from the rest of the world , and nobody should look further than that, it is not about copyright infringement or fraud , other then the fraud of using the American Government to close down the real competition that is growing in the world.

    The sooner Hollywood goes bankrupt the better, more and more people who would have bought DVD's and gone to the cinema are rather sharing entertainment with there friends in a form of boycott of the American entertainment industry. It will bring them to there knees eventually , just needs to be promoted more and all it really needs is one case of them suing an old lady or a 7 year old to generate the anger that saw SOPA brought to it's knees.And remember many many people did not think anything would prevent SOPA from passing, it was a major wakeup call to the Government , that so many people felt so strongly about not passing laws just to protect one crappy business model, that they were prepared to suffer a day blackout to prove there anger.It worked once now all it needs is that spark to totally destroy the American involvement in entertainment worldwide.

     

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    identicon
    Michael, May 2nd, 2012 @ 7:26am

    Sorry I'm late

    I just think it's strange how they've seized the MU servers and refuse to return all of the data intact. Makes me wonder if the parties that made accusations against MU have used the service themselves and are now trying to cover their tracks.

     

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    SURAYKANTH, May 2nd, 2012 @ 9:07am

    fuck this guys and the meagaupload needs to be open again other wise i am going to hack the fucking OFFICALS Sits...............on 5-5-2012

     

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    Ian H, May 2nd, 2012 @ 1:34pm

    The best justice system money can buy.

     

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    Kevin (profile), May 3rd, 2012 @ 6:11pm

    USA Also responsible

    Seeing as the "Law" is attempting to find Megaupload responsible for user's activities then it stands to reason the the US Government be held fully responsible for it's agencies and citizen's actions.
    The Hollywood studios should also be held accountable for any employer, employee or actor under contract.
    The record companies should be held responsible for the behavior of all it contracted musicians and so on.
    Of course their argument would be that they have no control over their subordinates' behavior.
    Now there is a question I would like to see asked in court.
    Imagine if the courts ruled in favor of the plaintiff and Megaload was held responsible then the same rule should apply to all.

     

    reply to this | link to this | view in chronology ]


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