MPAA Says Letting Anyone Access Data On Megaupload Servers Would Represent Infringement

from the entitlement? dept

As you may recall, the MPAA is among those who have said that Carpathia, the hosting company Megaupload used, must retain the data on its servers — even though the Justice Department has said it’s done with it and Carpathia was free to delete the evidence. Others, of course have also asked for access to their data. And, most importantly, Megaupload itself has asked if it can keep the data. Carpathia wants nothing to do with it, because it’s costing the company $9,000 per day to hang onto the servers without doing anything else with them.

However, in response to all of this, the MPAA has again gone to the court to suggest that if Carpathia gave the content to anyone else, that alone would represent copyright infringement:

The sale or transfer of those copies from Carpathia to Megaupload or any other third party would constitute an unauthorized “distribut[ion] … to the public” under the Copyright Act

That seems like a pretty big legal stretch by the MPAA’s typically overreaching lawyers. Depending on who the content was transferred to, it doesn’t automatically mean distribution “to the public.”

Of course, the continued insane paranoia of the MPAA continues to shine through in this filing as well. It insists that if Megaupload is given back the servers, it will ship them to some other jurisdiction and immediately relaunch the site:

“A sale or transfer of the servers to Megaupload (or any of the defendants) would raise a significant risk that Megaupload will simply ship the servers, hard drives or other equipment — and all of the infringing content they contain — to a foreign jurisdiction and relaunch the infringing Megaupload service, which would result in untold further infringements of the MPAA members’ copyrighted works. If so, the renewed criminal enterprise might be beyond any effective legal remedy.”

This also seems like a reach. All of the principles are under arrest and facing extradition to the US where they’ll face criminal charges. One would imagine they all recognize that it doesn’t do their case any good to set the site up again in another jurisdiction.

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Companies: carpathia, megaupload, mpaa

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Comments on “MPAA Says Letting Anyone Access Data On Megaupload Servers Would Represent Infringement”

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AC Cobra says:

Move them?

I’ve been made to believe (from posts on Arstechnica) that physically moving the servers and redeploying them with original data intact represents an impractical technological and administrative challenge, not to mention huge costs. Doesn’t the MPAA realize this? As an aside, wouldn’t it be funny if the government/MPAA complex blew the case because of their lack of understanding of technical issues?

PlagueSD says:

a significant risk that Megaupload will simply ship the servers, hard drives or other equipment — and all of the infringing content they contain — to a foreign jurisdiction and relaunch the infringing Megaupload service.

And this folks is why piracy will never go away until the MAFIAA gives the public what they want how they want it.

Anonymous Coward says:

“This also seems like a reach. All of the principles are under arrest and facing extradition to the US where they’ll face criminal charges. One would imagine they all recognize that it doesn’t do their case any good to set the site up again in another jurisdiction.”

Yeah, but could you imagine a group of nose tweakers say like brokeP buying it out and moving it to try to prove a point? The MPAA is right on this one!

Greevar (profile) says:

Guilty until proven innocent.

“If so, the renewed criminal enterprise might be beyond any effective legal remedy.”

They act like it’s a plain and obvious fact without any doubt. A den of liars they are.

I’m sick of this shit. I’ll just download whatever the hell I feel like and these industry liars can just shove it up their asses because I’ve had all I can stomach. The fault is theirs, they should find a solution to this internally instead of bribing the government and police to act like hired thugs they can send to anyone, anywhere they see speech they don’t like to be beaten down for not paying “protection”. The MPAA and their ilk are all criminals and thugs as far as I’m concerned. The only solution to dealing with thugs is superior numbers and technology. We are many. They are few.

That Anonymous Coward (profile) says:

They missed a word…

Nothing has been found in a court of law to be infringing.
There are only 2 examples of files handled by Dotcom that could be infringing, but were never distributed so moot point.

The only other examples of infringing files seem to be those uploaded by the **AA’s and its agents to the site.

Given the track record of the **AA’s when it comes to identifying infringing works, they are not to be believed.

While it is messy to have to sort out, this is something the court needs to fix after the over zealous seizure of the servers. It has affected innocent parties to “benefit” the **AA’s.

The easy answer to for the court would be to order people who had paid memberships be allowed access to their data. There are records of who these people are, so they are more then likely not bad actors. As no court has had a chance to rule on the “criminal” case, deletion of the data is to be avoided. If Mega is found innocent or the case lacking in merit, the Government will have destroyed a business and negatively affected people around the globe.
The bill should be paid by the Government, they took custody of it and until the case is adjudicated it should be held like physical evidence. Sealed and protected.

Why the **AA’s are allowed any standing in a criminal case is confusing. Copyright infringement is a civil matter, and to prove their damages they would need access to the servers of Mega. Of course this opens a whole host of privacy violations, and this is why suing service providers is a bad idea.

Anonymous Coward says:

Re: Re:

“Nothing has been found in a court of law to be infringing.”

Alleged doesn’t mean “innocent” either. Clearly, there is enough here for the charges to be brought. That should be enough.

If an enterprise is considered criminal enough for charges to be laid, is there any logical reason why the courts would allow the business to be sold onto a third party during the process?

It’s just not logical.

Gwiz (profile) says:

Re: Re: Re:2 Re:

Oh, like charges are never reviewed and dropped in a case?

Sure, but when it involves any form of speech there is usually steps taken to avoid prior restraint. That didn’t happen in the Dajaz1 case and apparently didn’t happen with the Mega case either.

What, because the word “internet” is involved we are just supposed to forget that the US Government needs to adhere to the Constitution?

That Anonymous Coward (profile) says:

Re: Re: Re:

Alleged means just that. There is NOT enough evidence, because everything presented to make this case move forward met the burden for a Grand Jury, without the benefit of anyone arguing the opposing point or questioning outrageous claims. The famous line everyone keeps ignoring – You can indict a ham sandwich.

The “enterprise” AKA the corporation is claimed to be laundering money, by paying the bills for bandwidth and servers. Every company pays their bills, and to represent paying ones bills as a criminal act is outrageous.

Where did anyone talk about selling the business to a 3rd party? Or did you skip ahead in the talking points memo to arguments to be made later?

Your not logical.

We are talking about people cut off from their property because of over zealous actions by a former BSA lawyer who now has a DOJ job.
To inflict losses on innocent parties on the dubious claims of the **AA’s, who have made claims PROVEN IN COURT TO BE FALSE resulting in seizing property from people who were actually innocent. The Government then engaged in a coverup of this misdeed, mislead the courts, mislead Congress, mislead the press to cover up their entire source of information was the word of the **AA’s with NO FACT CHECKING.

What we are talking about is returning property to the people who own it, rather than let the Government seize evidence and then destroy it before it can be used to offer any defense against the charges.

We are talking about forcing the Government to pay the bills to protect citizens property that was taken away from them on what could be shown to be baseless claims yet again.

We are talking about letting registered users of the system, have access to get their data before it gets destroyed.

What we are talking about is the **AA’s entering an opinion in a criminal case they are NOT a party to.

But by all means spill the rest of the memo about selling the service to someone else.

Anonymous Coward says:

Re: Re:

“The only other examples of infringing files seem to be those uploaded by the **AA’s and its agents to the site.”

If the **AA’s or their agents uploaded it then its authorised distibution isn’t it… if I put $10 on the sidewalk and it is gone tomorrow I can’t really claim it’s theft that someone claimed it…

The Moondoggie says:

Re: Re:

I think that MPAA is under the impression that, if the camera used to take your family pictures are from Canon, then the copyrigt of those pics belong to Canon. If it is Nikon, then it belong to Nikon….

Will someone just kill everyone in the MPAA already? Trolling is one thing. Being the biggest retards in the history of the world is another. They’re just wasting oxygen being alive. Please just kill them….

Anonymous Coward says:

Re: Re:

“WOW! I wasn’t aware that allowing me access to Megaupload to retrieve my family photos would represent infringement”

The point is that unless a monkey took the pictures, someone owns the copyright and unless you are paying the someone who has copyright then you are an infringing pirate, whether you are the copyright holder or not.

It’s simple really.

That Anonymous Coward (profile) says:

Re: theres precedent

You mean the time the US pressured the Swedish to ignore their own laws, violate their citizens rights, and seize servers that were then returned because no Swedish law had been violated?

Or the hydra program that has scattered copies of the site around the globe to avoid takedowns by intimidation and not law?

Or moving it into a former bomb bunker for the press it generated?

You understand TPB as it currently stands fits on a relatively small flash drive. The compiled amount of data on Megas servers is just slightly larger than that, by several thousand magnitudes I would guess.

Rikuo (profile) says:

Re: @Carpathia: so pull the fucking drives out...

Few hundred bucks?
For the sake of politeness, I’m going to assume you’re completely ignorant with the fine details of this case. Specifically, that Megaupload was using 25 PETABYTES of storage at Carpathia. If using 2 Terabyte hard drives, that’s 12,500 hard drives. They’re not cheap. Just going by a quick price scan on (for consumer grade hard drives, not for enterprise grade), each drive would cost $129 ($129 x 12,500 = $1,612,500). Carpathia decided to take the least costly option of just keeping the drives at $9,000/day.
Also, legally, they can’t pull them out. Where would they go? They can’t crush them, because there is copyrighted content on there (not just the MAFIAA content, but content owned by innocent third parties, who would be likely to sue over the destruction of their files). Carpathia doesn’t want the bad press it would get if it destroyed a video uploaded by a soldier in action to his family.

Jay (profile) says:

Re: Re: @Carpathia: so pull the fucking drives out...

Rikuo, if you would be so kind…

What type of hard drives are we talking about here?

Are these similar to IBM server blades, where they only hold the information or do they have to be in a temperature controlled climate? What exactly are we dealing with in regards to this leasing that makes this so much more difficult to just give the servers to MU to mount a defense (to give Fuque the benefit of the doubt).

Anonymous Coward says:

Re: Re: Re: @Carpathia: so pull the fucking drives out...

NO Fuque you are out of your depth a few hundred dollars? Are you high?

If Anything Rikou numbers are an underestimate, there would have to be drives for redundancy as well which also cost money for an effective solution for data redundancy.

if you say a few hundred dollars can you please tell me where you procure your hardware from? I want to start up a new business selling enterprise grade hardware with your supplier as my sole provider.

Some Other AC (profile) says:

Re: Re: Re: @Carpathia: so pull the fucking drives out...

Fuque, you obviously have no concept of enterprise class storage needs. A quick internet search yields drive costs(SAS drives) from around $300 to $900 for sizes ranging 500GB to 3TB. I am not going to go into the extended math as these are likely housed in large(7u or bigger) storage chassis that can range from $15000 to $100,000 in cost. Not to mention factoring the associates RAID deployment and redundancy setups. Factoring in that we are discussing 25 Petabytes, you are looking at costs topping 10s of millions of dollars. Sure they could be using lesser tech, but that would only reduce the cost by a few million.
Unless you have the knowledge and facts to back up your statements, kindly keep them to yourself.

V (profile) says:

Of course it's infringement...

“WOW! I wasn’t aware that allowing me access to Megaupload to retrieve my family photos would represent infringement. Don’t I have copyright over family photos that were taken by me and my family?”

It’s all an illusion… no one but Big Media can own a “piece of the action”. Everything in the world that has been, is being or will ever be created is their property.

The sooner you realize this, the sooner you can just pay them to take pictures of your family, friends, etc. In fact… any pictures that might be snapped by monkeys handling your camera… they also belong to them.

Rikuo (profile) says:

Just wanted to add my two cents here. Over the past few months, ever since Megaupload was shut down, the MAFIAA has been on a warpath against cyberlockers. Instead of the marketplace dictating that cyberlockers are the way to go, instead of antiquated optical media/pay per view/cable, we have the MPAA/RIAA calling all the cyberlockers criminal enterprises. What we have in effect is one cartel of businesses using governments to destroy a whole industry, that they perceive as a threat. This alone should be investigated as a violation of anti-trust laws.

That Anonymous Coward (profile) says:

Re: Re:

Considering the amount of effort put in by the cyberlockers to accommodate the **AA’s and their membership that well exceeds what is required by law, the fact they use this access to commit bad acts and copyfraud it should become clear they are using their dominate market position to bully other businesses to bend to their will.
New technologies should not have to change their business models to suit the legacy players when they have done nothing wrong. The fact these corporations have huge war chests devoted to threatening anything they do not like into compliance should call into question how economically they are actually damaged vs the amount of damage they cause society by fearing new technology and demanding it be broken to protect them from the possibility of bad acts committed by 3rd parties.

Anonymous Coward says:

I don’t get how it’s costing them $9,000 per day. Maybe I’m missing something because I’ve never stored anywhere close to 25PB. But $9,000 per day seems like one of those goldilocks numbers (not too high and not too low, but just right) that sounds reasonable to a court and to the tax man, but really has not a lot of support. Turn the drives off and let them sit in a storage room. If they’re full of Megaupload data already, they’re not using them for anything else. Turn the power off and they’ll sit there with all the data on them, not using any power or anything. When the court sorts it out, they can plug them back in. Only viable claim I can see is the inability to use 25PB of storage (which IS a lot) for other potential customers. But that’s a speculative loss that assumes someone else is waiting in line to use that much storage space, which is doubtful.

All that said, I agree the government should have to pay for the retention. I don’t see why they should be able to just let the data get deleted, that seems an awful lot like intentionally destroying a business’ assets for no good reason and a violation of every principle of due process there is.

Rikuo (profile) says:

Re: Re:

There’s other costs factored in besides electricity. There’s insurance, storage facilities and the loss of use, which can in this case be listed as an actual loss. Its not the same situation where the MPAA says that a download = a lost sale of a DVD; here, Carpathia has THOUSANDS of hard drives sitting in their facility not able to be used to generate income, through no fault of their own.
I highly doubt myself that the Carpathia management would still have the drives turned on, because, to be honest, who would be using these drives? At the time of writing, no-one is allowed even so much as view the contents of the drives. I will agree with you though, $9,000 per day is a suspect number, but Carpathia is suffering a loss, no doubt about that (but how much of a loss, we’ll have to wait and see).

mischab1 says:

Re: Re:

At the time I first heard that number, MegaUpload’s funds were frozen. I think the $9,000 is a combination of the money they lost because MegaUpload wasn’t paying them, which they couldn’t try to make up with other customers because the drives weren’t free, and whatever expenses they have to maintain the drives.

JMT says:

Re: Re:

I was under the impression the $9k/day is what MU were paying Carpathia to rent server space. Now they’re not, because the USG froze all MU’s money. Carpathia could be charging some other client(s) $9k/day if they could free up these servers.

As for the number, for the 26PB (26,000,000GB!) of data it works out at around $0.35/day per TB, which seems quite reasonable to me.

Anonymous Coward says:

Re: Response to: Anonymous Coward on Apr 3rd, 2012 @ 5:34pm

You also forget about the space the servers take up in their datacenters. Also you assumption is that these are dedicated physical drives. This could very easily be part of a larger cloud architecture were there are other customers virtual systems intermingled amongst the physical drives such that simply shutting them down is not an option. Consider also that many companies lease equipment instead of purchasing it outright and may also have maintenance contracts on the equipment that could also be adding to the cost. The figure does not sound unreasonable for that amount of data and I suppose that as these sorts of cases can take a while, by now they would have minimized their cost if they could.

An Anonymous Nerd (user link) says:

Why don't they just copyright the whole Cosmos

The MPAA and RIAA think they are higher than God (or anyone else depending on your faith) everything in existence is theirs, and they will shut you up if you say they are wrong and say its “Threatening to commit piracy” or “Verbal Piracy”, I say we protest outside their buildings and show how big is the “Vocal Minority” that they have been spitting in their face for so long

Anonymous Coward says:

cant see how anyone can infringe on their own stuff.

now the government and the entertainment industries have been over the files stored with fine tooth combs, found what they want, why should Kim and his team be denied access? bit one sided, as usual.

any proof that no files have been added/removed since the seizures?

G Thompson (profile) says:

I don’t think the MPAA lawyers have thought this thru to its logical conclusion.

Lets say the MPAA gets access to this material for their own civil purposes, at the same time a court grants the opinion that giving the data to “the public” would be infringement.

Does the MPAA not understand that anyone who then owns a movie that the MPAA does not have the control of, say a business owner who creates there own movies and owns the copyright outright for their own business, can then take infringement action on the MPAA for infringement of that same copyright.

This is a very two-edged sword that the MPAA are playing with, and I already know of a lot of people who will instantly lodge claims in courts around the world against the MPAA if they obtain access to the data and the owners do not.

G Thompson (profile) says:

Re: Re:

And before some troll comes along and tries to state “oh but this is for court cases” it doesn’t matter, the copyright owner controls how the movie can be used for ANY purpose and a court case for something the MPAA does not control is in no way Fair use.

Not only that but the MPAA/RIAA’s of the world also equate the movie copy itself as property, and the use of the property (which is not in the possession of the owner) without the owners possession is called conversion or Detinue dependant on the circumstances. ie: larceny

Niall (profile) says:

Re: Re: Re:

Quite aside from data privacy issues, which any MU user from Europe could get the EU to investigate if the **AAs went speculatively delving into MU’s material without the proper permissions and controls.

Of course, the ideal line for the **AAs is to be able to baldly/boldy state “It’s all infringing”, and then make individuals have to prove each item isn’t…

Anonymous Coward says:

What a bunch of idiots! The servers don’t mean squat. Anybody can have servers. It’s the data that matters, and the data has already been distributed to 100’s of backups if the system administrator did their job. Offsite backups are an absolute and should be performed by any responsible administrator.

That Anonymous Coward (profile) says:

Re: Re:

This might be impractical, as the contents of Mega were often changing. This wasn’t a standard server setup where you can run daily backups. It is more likely they were running fault tolerant systems so there could be no single point of failure.

Besides do you know how many DVDs it would take to backup 25 Pentabytes of data?!

That Anonymous Coward (profile) says:

An Update....


Government – There might be kiddy porn on the servers so they can’t do anything with them.

“The US government insists that the court has no real jurisdiction over the server issue. In a filing made late yesterday, the government argued that the EFF had highlighted an “unfortunate” situation, but one not before the court (even Megaupload’s terms of service warned users not to count on the site as a sole repository for files). As for the MPAA, it hasn’t even filed a civil lawsuit yet, and courts should not rule on “speculative matters affecting civil lawsuits that have not yet been filed (and may not be filed at all).” As for Carpathia’s request for cash, the government suggests it doesn’t deserve any. After all, it’s free to wipe and re-lease the servers; the government already has its forensic evidence. The entire dispute is merely a “private contractual matter.””

So the court is denying Mega access to the servers that could prove the entire case is bogus. Encouraging them to be wiped, making sure there is no evidence. While the Government holds all of Megas assets that could be used to outright buy the servers and hold them until there actually is a trial.

“”Well, sort of. When it comes to selling or renting the servers back to Megaupload?there the government draws the line. It doesn’t want the servers to leave the court’s jurisdiction and it worries that they could be used for criminal activity. In addition, “the government recently learned from multiple sources that the Carpathia Servers may contain child pornography, rendering the Carpathia servers contraband.””

So they are willing to pull out all of the stops now…

G Thompson (profile) says:

Re: An Update....

In addition, “the government recently learned from multiple sources that the Carpathia Servers may contain child pornography, rendering the Carpathia servers contraband.””

If that is backed up by reasonable proof then it’s a whole new ballgame and one the US Government particularly will not want, MPAA won’t even get a look see at ANY of the files either EVER so therefore will never be able to prove or disprove that infringement has taken place (or not).

Not only that but under international treaties the USG has an absolute duty to investigate the Indecent Images allegation FIRST and Foremost, the criminal aspect of the copyright cases has to be placed in the background.

No-one should even make the suggestion of this possibility unless they have unequivocal evidence that there is the good possibility that indecent images (CP) exists

That Anonymous Coward (profile) says:

Re: Re: An Update....

A court accepting unnamed sources as fact.
A court completely ok with allowing evidence to be destroyed due to lack of payment, pretending it doesn’t control the accused’s funds.

Carpathia cut a deal to sell the servers to Mega for 1 million, and if the reports are to be believed that should be a drop in the bucket compared to how much was seized. Using Mega’s funds to secure the evidence, especially in light of the new allegations (Oh hey didn’t the Feds get access to the servers? Be a fun time to add things.) the servers should be protected.

The CP accusation is funny because the indictment specifically pointed out Mega had a proactive filter running to remove known CP files, it was them not using it to remove copyrighted material that was the evil part. Except the law didn’t require that for copyrighted material, but it does for CP.

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