DOJ Argues That Even If Case Against Megaupload Is Dismissed, It Still Can Hold Its Assets

from the well-of-course dept

As the fight over whether or not the US can even charge Megaupload under criminal law continues, the US Justice Department continues to make quite extraordinary claims. If you don't recall, the US filed criminal charges against Megaupload and a bunch of its execs. However, as a US judge noted back in April, under US law it might actually be impossible for the case against Megaupload to proceed, because criminal law requires "serving" the defendant, and the law also says you can only serve companies at their US address. Megaupload is not based in the US and has no US address. The DOJ is trying to tapdance around what the law actually says, but (as Megaupload points out) they can't point to a single real legal citation that supports their position. The DOJ is basically arguing that the law should be what they want it to be... because otherwise the DOJ wouldn't like it very much.

Tim Lee continues his always excellent reporting, by providing some details of the latest court hearings on the matter where the judge definitely seems to recognize that Megaupload may be legally correct:
[Judge O'Grady] noted that the "plain language" of the law required sending notice to the company's address in the United States. "You don't have a location in the United States to mail it to," he said. "It's never had an address" in the United States.
Perhaps even more interesting is the claim by the DOJ that even if the Judge rules against them on this issue, they should still be able to freeze Megaupload's assets, because the cases against the individuals will continue.
Not only that, but the government believes it can continue to freeze Megaupload's assets and paralyze its operations even if the judge grants the motion to dismiss. That's because in the government's view, the assets are the proceeds of criminal activity and the prosecution against founder Kim Dotcom will still be pending. The fact that the assets are in the name of Megaupload rather than its founder is of no consequence, the government claimed.
That's a trickier argument to make, though, not a totally crazy one. It's more or less based on the same controversial theory under which the Justice Department seizes and forfeits things like hip hop blogs because someone might possibly get some infringing music from them. But here it's even more complex, because there is supposed to be a separation between the corporation as an entity and the execs who work there as entities. It's part of the reason why "limited liability" corporations exist. There are, of course, ways to get past that, but the government would need to make that case, and they may have a hard time doing so. Either way, it does appear that they're legitimately worried about this rather massive error on their part in bringing the case.

Perhaps, next time, the DOJ won't rush into highly questionable lawsuits just because the MPAA is upset about a website.

Filed Under: assets, copyright, doj, frozen, jurisdiction, service
Companies: megaupload


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  1. icon
    Corby (profile), 28 Jul 2012 @ 3:18pm

    There are other cyberlockers in the world which have infringement on them who are not based on US soil who use servers in the US and charge people etc. to use the service and these cyberlockers have not had the servers terminated and equipment seized etc. and had assets frozen etc. So why are these cyberlockers allowed to continue to operate despite having infringement on the servers and charging people etc. If the US does have jurisdiction to shut down a foreign company that is not based on US soil but simply uses the servers hosted in the US then why haven't they shut down these other cyberlockers and frozen their assets etc?

    It seems that the US is a law to themselves in that they can't play by the rules either considering that the NZ Judge has ruled that the search warrants obtained or given to search Dotcoms home were Illegal because they were too broad and that the seizing and taking away of equipment etc. from the home was also Illegal and that transfering the data from the hard drives and sending the data to the US was also Illegal. If the appeal by the US with regards to the search warrant and search etc. is not overturned and still stands as it is now then any evidence obtained from the hard drives from the search and seizure of Dotcoms home cannot therefore be used as evidence.

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