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. identicon
    Anonymous Coward, 30 Jul 2012 @ 5:39am

    Re: Re: Re: Re:

    I think congress wants a threshold before a business can be considered to be within US criminal jurisdiction, hence the reason why they made that jurisdiction deliberately less broad than civil jurisdiction.

    Is it your veiw that this was an oversight on Congress' part? That they had it together when formulating civil jurisdiction then lost the plot when it came to formulating criminal jurisdiction?


    So you think Congress's intent was to bring foreign corporations who merely commit torts in the U.S. to justice, but if a foreign corporation commits a crime (which is worse than a tort), then Congress wanted to give them a free ride? As I said above, that very conclusion should tell you that that's not the right way to look at it.

    Corporate law is state law. The identity of who is an officer in a corporation, or who is a member of the board, or who is that corporation's agent for service of process all turns on state law. There has never been substantive, federal corporate law. Congress didn't overlook anything. Congress knew (and this stuff is over a century old) that states have statutory provisions covering who is able to be served for purposes of establish personal jurisdiction over foreign corporations doing business within.

    I do love how everyone seems to think this is some great mystery that's just now being realized. Fact is, this stuff has been worked out for decades and decades. Megaupload Ltd. didn't find some crazy loophole. States have identified and solved this problem long ago.

    And if you think federal courts don't look to state law for the identity of a corporation's agents, well, think again. I can find cases over a century old saying that they do. Sorry.

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