Former Federal Judge Calls US Prosecution Of Megaupload 'Really Outrageous'

from the good-for-him dept

To hear folks in Hollywood talk about it, the US’s indictment and prosecution of Megaupload are a done deal. Without any actual trial, people have decided that the company is clearly 100% evil and guilty. Yet, as we keep noting, the details of the indictment and prosecution keep turning up significant errors on the part of the US, as well as questions about the legality of what the US did. And plenty of people who really understand this stuff deeply are speaking out in agreement. The latest is a former federal judge, Abraham David Sofaer, who found the whole situation so troubling that he’s helping the EFF — for free — with its efforts to get Megaupload users’ data back.

Having looked over the details of the case, he’s speaking out against it. According to an interview he did with David Kravets at Wired:

“It’s really quite outrageous, frankly… I was thinking the government hadn’t learned to be discreet in its conduct in the digital world. This is a perfect example on how they are failing to apply traditional standards in the new context.”

When it comes to the government’s insistence that users can’t get their data back, Sofaer is quite troubled:

“That’s a dangerous road,” Sofaer said.

He suggested that the government hasn’t quite caught up to the digital age. He doubts the government would take the same position with a bank it seized.

“Of course they would help customers get back their deposits,” he said. “But think about this new world. You can see very clearly that the government is acting in a manner that is indiscriminate.”

I can’t wait to see our usual critics explain how this former federal judge is just a pirate apologist who doesn’t understand the law.

Filed Under: , , ,
Companies: megaupload

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Former Federal Judge Calls US Prosecution Of Megaupload 'Really Outrageous'”

Subscribe: RSS Leave a comment
[citation needed or GTFO] says:

Wishful thinking...

I can’t wait to see our usual critics explain how this former federal judge is just a pirate apologist who doesn’t understand the law.

And yet, they’ll somehow be able to use their IP (Insane Problematic) logic to make it seem that way.

Who wants to make a bet on how many comments it’ll be before someone does and actually believes in the crap they’re saying?

:Lobo Santo (profile) says:

Troll Hard 5: Revengencering

You spelled it out, right there in the title!
FORMER” Federal Judge.

…and why do you think he isn’t a Federal Judge anymore?

Because he obviously doesn’t understand how to slather US law onto the world.

Really, Mike, what are you trying to pull?

Here’s the thing: All the money comes from the US–they print it, they distribute it. They can take back the money any time they damn well feel like. And, if you spent the US’s money on anything, well that’s theirs too.

I don’t know where you sheeple get off complaining about this stuff! It’s not that tough people, drink the kool-aid and fail to notice the edges of your cage and you can live in a happy-go-lucky world where everything is beautiful and fair and right.

[/troll] /bob


(How'd I do?)

Anonymous Coward says:


funny that…the whole point about the Judge’s involvement (and why it should bother the DoJ) is that it is further achnowledgement from an impartial source that there were non-infringing uses. The DoJ has maneuvred itself into the absurd position of having to insist that there were no non-innfringing uses whatsoever to keep the case going…which is of course also why their comparison to MU being a bank robber is so insane – if there are non-infringing uses, MU is more like the bank…

Anonymous Coward of Esteemed Trolling (profile) says:

I believe in true stories

Studies have shown that Megaupload is NOT the same a Funnyjunk.
Megaupload “stole” files. Practically “mirrored all the worlds files”

Megaupload is using the EFF and a former federal judge to attack the file creators.

How we defeat the stealing Megaupload.

There is now a Charity page setup so you can help the file creators, who got their files stolen by Megaupload.
So donate $10 to Erectile dysfunction Charity, which will help beat Megaupload.

Then the file creators can take a photo of Megaupload’s Mum getting sexy time with a Man-Bear-Pig , while surrounded by the HARD-oned cash.
That will show them.

** Actual theft of files was done by Megaupload.
** The corporate government is always right. (no exceptions)
** Corporate government “stealing files” is a myth made up by reddit.

Gwiz (profile) says:


Why do you always ignore the illegal activity that goes on with these sites, Masnick? Why do you ignore the fact that the majority of files trafficked on these sites are illegal?

Wait. When was anybody convicted of any illegal activity on Mega. I must have missed that somehow.

Oh, I get it now, you’re one of those people Mike addressed in his first two sentences:

To hear folks in Hollywood talk about it, the US’s indictment and prosecution of Megaupload are a done deal. Without any actual trial, people have decided that the company is clearly 100% evil and guilty.

Mike Masnick (profile) says:


Why do you always ignore the illegal activity that goes on with these sites, Masnick? Why do you ignore the fact that the majority of files trafficked on these sites are illegal?

I don’t ignore it at all. In fact, I’ve *said* repeatedly that it’s clear that much, if not most, of the activity was likely infringing.

My argument is that *even so* it’s wrong to blame the platform for actions of their users. Also, these things evolve. When the VCR first came out, all of its uses were infringing because there was no licensed content. Radio was illegal. Cable TV was illegal.

We didn’t shut those things down. We figure out how to work with them.

Until the internet came along. And then you people freak out.

Anonymous Coward says:

The judge really misses the boat:

“Of course they would help customers get back their deposits”

Well, yeah – first off, their deposits aren’t a copy of something they already have, are they? They didn’t photocopy the money and deposit the photocopy, they deposited actual money.

Further, anyone depositing money into the bank would be clearly identified, the ownership of the account not in doubt, and the content of that account not generally considered to have been taken from someone else’s account.

You are in such a rush to try to cite someone supporting Mega that you are being ignorant of your own basic rules of the game. Shows you to be a pure pirate shill.

Rick Smith (profile) says:

Re: Re:

Actually I think you missed the boat.

If there is anything in the world that is analogous to the digital world it is money.

When you go to a bank and deposit money, you may be handing over a physical object but that is not what you depositing. You adding a number to a piece of paper (or a digital equivalent now days) that says you have this money value available for you to get when you want it. When you withdrawal, the bank doesn’t go find ‘your’ money, they give you an equivalent amount, or in essence a copy.

So even if the courts want the physical (i.e. servers) from Mega, why should they not have to offer a copy somewhere that legit data can be accessed. Although I will say that the copy should only allow content that is not directly involved with the case to be read. No writing should be allowed.

For those that say that the DOJ shouldn’t have to pay for that, I think you are wrong. Should the DOJ win they will be allowed to keep at least some of (maybe all of) the assets they seized form Mega, so that should be used to pay of cost of setting up access for the bystanders who did nothing wrong. If the DOJ loses, then that means they should not have been able to seize the assets in the first place and it?s a form of a penalty on the DOJ that comes from their own budget (and hopefully this will cause them to think a little more before acting). And for those that say the seized money should go to the companies that the infringed content came from, I say tough, they should have fought their own battles against infringement. Once the government becomes involved (exercising powers that normal companies can’t, like seizing all assets before a trial) then they forfeit the money they may have been able to collect. Otherwise they are just using the DOJ as a free legal service and making everyone pay plus getting paid. And we know how all you out there just hate freetards.

Eric says:


So let me understand your argument.

I move my money in to my account at the bank with my clearly identified information that that account belongs to me since it has my address on it.


If I move a file (this is a copy and delete of the original) into Mega’s file server, which is locked by my password and user id, which is linked to my account, which clearly has my contact information and address (same as the bank has), then I’m not entitled to get my files back?

Think you can make more than 3 people believe this argument?

Anonymous Coward says:


Eric, you already have your files. Mega is just a backup, not the original copy. If the bank didn’t give you money, you would lose it. If Mega doesn’t give you a backup, you lost what? You have the original.

Do you really think that most mega users are accurately identified? Do you think that they could look at any single account today and say “hey, that uploader of midget pr0n is Leigh Beardon, and he lives at this address in Canada”?

I doubt it. Unless you paid for some service (like download) they have no idea who you are behind your gmail email account and your TOR tunnel connection.

Tim Griffiths (profile) says:

Re: Re:

Ok so lets just run with your assumption that every one who had data uploaded to megaupload also had that data on a local drive when megaupload was sized. I’m not going to get in to why that’s a stupid assumption because frankly the argument you make while using it is easy enough to break down all on it’s own.

Given the number of megaupload users there is undoubtedly people who encountered the problems that they where backing up to MU to avoid before they could back up their files to another service. Hard drives break, things are stolen and people often find them self’s with the need to accesses their files from a location where they can’t access a their local copy.

All these people have lost something due to the MU data being locked down. On top of that they’ll all have to put time and effort in back up their files else where and likely have to pay another service on top of what they’ve already paid to MU to provide them self’s with the back up.

You are claiming that since all data on MU is a copy then it’s all backed up elsewhere and as such no one has lost anything. But you are utterly forgetting that what people have lost is access to their back up service.

Now what a lot of people have also lost is the service they where using to share their files with other people. These people will again have to upload to another one and maybe pay again to do that.

And all this is based on the idea that people will all have a copy of the file as MU is only ever used as a ‘backup’. That no one would ever have files stored on MU that they currently don’t have a local copy of.

No matter what else the site was used for there are a large number of people who used it legitimately who have lost date or time and money due to what is more and more looking like an illegal shutting down of the service.

That is wrong. End of story.

RD says:


“Well, yeah – first off, their deposits aren’t a copy of something they already have, are they? They didn’t photocopy the money and deposit the photocopy, they deposited actual money.”

Well, movies and music are actual property too, so how is that different? After all, thats what your bosses have been foisting on the public for 25+ years now: OWN IT ON HOME VIDEO! FILE SHARING IS THEFT OF PROPERTY!

Right, RIGHT?

Fscking dickhead.

velox says:


“…their deposits aren’t a copy of something …”

“the content of that account not generally considered to have been taken from someone else’s account”

–>How ironic that you should bring up the issue of copying with respect to bank deposits!
Perhaps you have forgotten how banks work, so let me remind you.

Banks take your deposit, they log an entry into their computer that says they have your money. Then they loan it out, not just to someone else, but to more than one someone else; all the while telling you that they still have your money on hand.
With fractional reserve banking the original deposit gets multiplied many times over.

In the simplest terms, the bank copies a symbol of value (its account of your deposit), and then hands the copies to others (in the form of loans). No theft occurred, but both the loan recipient and the bank end up with value that they didn’t have prior to the start of the process, meanwhile the depositor has the same or greater value.

Congratuations. You have provided another outstanding way to illustrate to people how the copying of symbolic (virtual) goods is *not* the same as stealing a physical object.

silverscarcat says:


Actually, I talk to someone (once in awhile) about this, and he’s completely in the corner of the DoJ, thinks that anyone who labels the DoJ as the bad guy is stupid and duped by Anonymous.

“Other than the really unfortunate timing, everything the DoJ has done has been legit.”

His words, not mine.

That Anonymous Coward (profile) says:

We didn’t take evidence in violation of NZ law, cause its digital its not evidence.
We didn’t take the servers, we cherry picked the files the MPAA had just finished uploading and we don’t need the rest.
We didn’t take the information away, we just took the money to pay for it and are stopping the staff of Mega from helping anyone get the system back up.

We don’t have a case, but he is evil and fat so he has to be guilty.

The BSA employee who brought this case needs to be run out of the DoJ. This is a vendetta of the copyright cartels against a company using taxpayer dollars. Mega worked within the law, and the cartels wanted more. They always want more than the law will allow, and the DoJ should be stopping them not working as thugs.

They buy elected officials, they get their employees placed within Federal jobs, how is this not corruption at its most basic levels?

Anonymous Coward says:

what it proves is the judge doesnt understand how things work on the “internet”, as you like to claim, real world things and laws just don’t seem to apply, as you claim

but, yet, here you are crying about the users not getting thier data back, but it isnt a physical item, it is an infinitly copyable digital product, they have lost nothing, but yet you “now” defend them, saying they should be given thier “property” back????

hypocrite much???

judeg is also wrong about his bank analogy, if the bank (Mega Upload)existed to provide the criminal product, was doing the criminal activity, any one who has money there, would also be considered a criminal, and would have to prove, they were not a criminal, i.e. had not uploaded illegal infringement material, to recieve thier funds

which is still beside the point, as thier “money” is not real, but an infinitly copyable digital product, as you have stated many times

Rev. James S (profile) says:

Re: RE:

“but, yet, here you are crying about the users not getting thier data back, but it isnt a physical item, it is an infinitly copyable digital product, they have lost nothing, but yet you “now” defend them, saying they should be given thier “property” back????”

The same can be said for the RIAA/MPAA argument. . .
They’ve lost nothing, because what they claim has been stolen isn’t a physical item, but an infinitely copyable digital product. They’ve lost nothing, yet you’re going to defend them?

Inconsistency is a hallmark of the inferior mind.

Michael Talpas (profile) says:

Re: Re:

“judeg is also wrong about his bank analogy, if the bank (Mega Upload)existed to provide the criminal product, was doing the criminal activity, any one who has money there, would also be considered a criminal, and would have to prove, they were not a criminal, i.e. had not uploaded illegal infringement material, to recieve thier funds”

This is factually incorrect, on several points. Firstly, it has not yet been proven that any criminal activity has been committed. There has been no trail, and no conviction. Also, there is much evidence to suggest that this is a civil copyright case blown up into a criminal copyright case without any evidence of criminal copyright.

Secondly, even if the bank were criminal (for instance, set up as a laundering scheme), then the people who deposited their money without any knowledge of the crimes being committed by the bank are victims. It is, at least partially, their money being used to fund these crimes. They should have their money returned to them, once it is determined that they had nothing to do with what was going on behind the scenes.

Thirdly, and most importantly, they don’t have to prove they are innocent. They must be presumed innocent, until proven guilty, in a court of law. If there is no evidence of wrongdoing on their part, their money must be returned to them.

Lastly, a file backup isn’t always used as a file backup. I would go so far as to say (without any evidence to back this up) that there were people who were, in fact, using Megaupload to store their files, without having any local copy. Pictures of their children. Recordings of their families voices. Portfolios of their work. Archival footage that could be very valuable to them. If these things are not returned, then the Justice Department is doing a severe injustice to the people involved.

It is irresponsible and shocking that you would not consider the plight of innocent people. Is your hatred so great that you can actually justify their suffering in the name of your so-called Justice?

TtfnJohn (profile) says:


There’s nothing illegal about midget porn in Canada. So what? Beats your politician porn!

There are people who have made it clear they’ve used Megaupload for cloud storage. Often for archival files which they can identify and which contain enough identifying information to confirm it without needing an IP address or anything else. The reality is what the judge says it is, the US government has seized people’s property and is refusing to return it or offer an explanation of why it can’t be returned.

That YOU choose to believe that Megupload was only for infringing material isn’t anyone’s problem but your own. Though you have no evidence for that. (It had to be doesn’t count.) I agree with Mike that as a file locker there was a lot of infringing material on Megaupload, perhaps even the majority of files there. None of that justifies the refusal to return non-infringing files.

It’s the refusal not the status of these files as backups that’s important. The DOJ is obligated to act the same way with files on a disk that it would with money in the bank.

What works in the physical realm (money) has to work in the electronic/Internet realm (files) without legal reason for it. For example that the file is needed as evidence at trial.

I’d wonder if most casual users of Megaupload had gmail or other disposable mail accounts or even knew that TOR exists.

None of that is the judge’s point. But you really, really want it to be. His point is law, which I’m sure he knows better than you do.

TtfnJohn (profile) says:


You need to read one of the earlier comments about how the banking system works.

Additionally if the depositor knew nothing an about the alleged criminal activities of the bank would not be automatically considered a criminal. Perhaps a suspect but not legally a criminal until AFTER a criminal trial had taken place. In our criminal justice system a person is innocent till proven guilty BEYOND A REASONABLE DOUBT.

Which means hat should criminal infringement charges be laid one day the prosecution still has to prove guilt for each and every user they charge. The defendant has to prove exactly nothing. Nor, at this stage has Megaupload or any of it’s principles been proven, again beyond a reasonable doubt, to be a criminal operation.

That the DOJ says it is does not legally make it one. So far that’s all anyone has. There’s things like trials to go through yet.

Chargone (profile) says:


… i’d like to point out that fractional reserve banking is CRAZY easy to scam if you’re one of the guys at the top running it.

it’s entirely possible to manipulate it in such a way as to make millions of dollars of personal profit, which didn’t previously exist, while technically and officially having changed nothing. (starts with putting an extra hundred into circulation, ends with pulling that initial hundred back Out, basically a zero sum equation except that, mean time, that hundred dollars has been lent out hundreds of times over, not yet been payed back, and you’ve ended up with the bulk of it in your pocket while other people are the ones who actually owe You. … i’m not actually a banker so i don’t remember the details of the example, but the system is Incredibly suspect. especially when it’s under the control of a private entity. not that the US government would be any more trustworthy. it’s too damn big and far away from the people.)

Zany Mouse Custard says:


Why are there people insisting money isn’t infinitely copyable? If they so desired, the government could print as many bills as they like. They’re only limited by the materials needed to print those bills, most of which being infinitely reproducible themselves (cotton for instance).

They seem to have forgotten that the vast majority of monetary transactions are digital these days. My paycheck is automatically deposited via computer. I pay all my bills via a computer. When I buy something, I use my credit card or debit card. I can’t even remember the last time I held real physical cash in my hand.

Following the advent of PC’s, money became nothing more than a number stored on a computer somewhere. It’s all virtual now and as a result one could technically add, subtract, divide, multiply whatever they want, as often as they want, forever. There are many good reasons why one shouldn’t, but that has no bearing on the fact that money is indeed infinitely copyable.

As far as anthologies to this debacle go, the best example is still the storage business. Say a company has 500 units, all individually rented out. The government discovers a renter of just one of those storage units is using it to store something illegal, say a copied music CD for this example. In response to this most heinous offense, the government confiscates the entire contents of all 500 storage units, confiscates all of the businesses money, refuses to allow the other 499 legitimate renters to have they’re property back (which is at risk of being destroyed), and presses charges against the storage business for the deeds of that one bad renter whose part in all of this gets completely ignored, and to top it off the government also does everything within it’s power to prevent that storage business from adequately defending itself in court, going so far as to publicly claim them guilty even though a trial hasn’t even been held yet.

If that analogy sounds insane, it’s because it is. Only a selfishly cruel and twisted mind would believe the government is blameless and support their actions. Those who are sane see it for what it truly is; completely, utterly wrong, bordering on true evil. Whomever is holding the attorney generals leash needs to give it a good sharp tug. He’s making the current administration look bad and undermining the worlds faith in the US and all the grand ideals it’s supposed to stand for. Win or lose, this is something which will have major negative consequences down the line. I know I would certainly avoid the US if I were starting a new tech business. The risk and hostility has become so great that even those already established may decide to pick up their business and it move to somewhere safer, which is seems to be pretty much anywhere outside the US these days. This will have a significant impact on their economy and affect American jobs as well.

Anonymous Coward says:


>Seems like the judge’s focus is on the retention of files by former customers, not the defense of Megaupload or even the general seizure.

Maybe not the former, but he’s certainly disgusted in the method in which the latter was carried out and the refusal of the government to grant users access to their files.

You don’t need to defend Megaupload to realise that the government, having performed a highly over-the-top raid operation, is now going out of its way to make itself look completely uncooperative and tantrumy.

JarHead says:


They didn’t photocopy the money and deposit the photocopy, they deposited actual money.

Are you absolutely sure about that? There’s POV which essentially says that that’s what banks do these days, with fractional reserve system an all.

Isn’t money just a “photocopy” of more tangible things (at least at 1st), like gold/oil/etc.


Anonymous Coward says:

Re: Re:

“And everyone knows it.”

“Everyone knew” the Earth was flat.
“Everyone knew” certain racial groups were inferior to other racial and etnhic groups.
“Everyone knew” the Holocaust never happened.

Congratulations, boy, you’ve aligned yourself with flat-earthers, slave owners, and Holocaust deniers.
You’re in august company!

drew (profile) says:


You appear to be able to handle a state of cognitive dissonance very easily.
Either copies of files are no big deal (in which case what is this case about?) or copies of files are property (in which case the government has seized vast amounts of property without due process and is denying people access to their property or even the chance at redress).
Please pick one and then we can continue the discussion.

G Thompson (profile) says:


Not if you’re not a US citizen you don’t. Sovereign Immunity only applies to the citizens of “the sovereign”

The US Government can be charged and brought to court and if they lose damages can be recovered. Though not normally done, and highly controversial diplomatically, one way damages can be recovered is to actually liquidate any US Government assets to recover damages and/or costs within the actual jurisdiction where the case was decided. WIPO has does the equivalent of this a few times actually, which is why the USG wants to destroy WIPO and enact TPP/ACTA instead

themonkeyking145 (profile) says:


Something to realize about all this (that’s remarkably important, honestly): We’re never going to be able to have a conversation about this.

Let’s take the basic facts presented in the original article: a (former) federal judge gave an interview in Wired (a tech friendly publication), where he pretty much gave the DOJ a slap in the face over their current actions. I think we can all agree those are the most basic bits of hard information in this situation (the stuff in parenthesis is to acknowledge the viewpoint opposite my own).

Now, here’s why a real conversation can’t take place: those of us who enjoy Techdirt and the views it represents hear confirmation of what we already think about the MU case, and stop thinking right there. Those who dislike Techdirt and come here to try to control the piracy advocates or provide their own viewpoint, they hear a piracy apologist (Mike) rebroadcasting what another apparent piracy apologist (the (former) federal judge) said to a magazine that is (in their opinion) highly sympathetic to the aims of pirates.

You see the problem? Instead of taking the basic facts (former employee of the government says the government is acting outside its purview) and having a discussion about THAT, we seem compelled to return to an argument that A] has been played out on this and similar sites a million times, and B] is only peripherally involved with the actual blog post.

Whether MU was used for infringement or not is beside the point in the discussion that should be going on. We shouldn’t take away from this article that a federal judge thinks infringement is okay, BECAUSE THE MAN NEVER SAID THAT. The discussion that should be going on here should be about whether the US government is abusing power, if so to what extent, and if so how should US citizens react. There are enough intelligent, articulate people on this and similar sites that discussions like that should have legions of supports for both of the basic sides represented.

That isn’t going to happen though, because like I said at the beginning, we can’t have a conversation about this. Until we can all agree to set aside the issues of piracy and infringement and all the rest of that in discussions like this where they have no place (at least initially; I’m not a moron, and clearly those things would need to enter the conversation eventually) we’re never going to be able to talk about anything but those things.

Quite honestly, that makes me sad. Because, again quite honestly, I’m ready to talk about something else. We’ve beaten the dead horse that is the piracy/infringement debate for so long, we’ve worn a hole right through it and are punching the ground now.

That Anonymous Coward (profile) says:

Re: Soooo....

And this would be the second federal judge to have this viewpoint, the first is hearing the US case.
The NZ Judge is less than impressed with the case and raised serious questions about how the law was being twisted and manipulated to meet some goal.

I think it is a clear message that the law is being used in ways it was never intended to be used for the benefit of the people who contribute money.

Add in the man running the show came from one of the “watchdogs” of the industry and one has to wonder if it isn’t personal. One also has to wonder if there is a job waiting for him once he departs DoJ as we have seen an amazing revolving door in Washington.

But then this has been happening for a while now in small ways, like someone formerly paid by the RIAA making rulings against the accused in copyright trolling cases in her position as a Judge. She had to reconsider some of what she was doing because she couldn’t extend her jurisdiction beyond the boundaries, despite giving the lawyers ample rope to make a case for doing so.

The majority of the population will never hear about Mega beyond the allegations and maybe a report on how Anonymous made attacks in the wake of the shutdown, making sure to use this to infer criminality and guilt.

It is like how many people blindly embrace what the TSA does, until they are the ones selected for extra screening. But then it is to late, the idea that it applies to other “bad people” but not me “I’m good people” is still prevalent.

All they needed was an unlikeable poster boy and people just accepted it had to be the right move.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...