Justice Department Continues Handwaving To Avoid Facing Up To Its Questionable Behavior In Taking Down Megaupload

Say That Again

from the quick,-look-over-there! dept

We already wrote about the motions from Megaupload, the MPAA and Kyle Goodwin, concerning Goodwin’s attempts to regain access to the backup files he uploaded to Megaupload. However, there is also the Justice Department’s own filing, which deserves its own separate post.

As we noted a little over a week ago, Goodwin, represented by the EFF, was using Goodwin’s attempt to retrieve his data to also seek to unseal the seizure order that led to Megaupload’s servers being taken. The Justice Department clearly does not want that, and you can see it by the way in which it hits back at Goodwin. It insists that Goodwin hasn’t done nearly enough to prove that he actually has “property” hosted on those servers:

To date, Mr. Goodwin has failed to make such a showing – he has not shown that he has a cognizable, legal interest in property seized by the government, nor has he shown a deprivation of a property interest based on any government seizure…. The only facts submitted to the Court by Mr. Goodwin regarding his interest in the servers imaged by the government are in a declaration he submitted in support of Non-Party Carpathia Hosting’s Emergency Motion for a Protective Order where he states he used Megaupload’s service…. However, if mere use of the service was sufficient to create a legal ownership interest in servers leased by Megaupload from Carpathia, then there could be hundreds, if not hundreds of thousands, of “owners” of each and every single Carpathia server. Such a result is absurd. Cf. Board of Public Utility Comm’rs v. N.Y. Tel. Co., 271 U.S. 23, 32 (1923) (“Customers pay for the service, not for the property used to render it . . . . By paying bills for service they do not acquire any interest, legal or equitable, in the property used for their convenience[.]”).

Talk about willfully misrepresenting Goodwin’s position… Goodwin isn’t claiming a property interest because he used the service, but because he uploaded his own content. He’s not claiming a property interest in Megaupload, but just in the data he uploaded. Apparently the DOJ is trying out diversion techniques to hide from the real issue.

The DOJ then goes on to state, by footnote, that they believe that even if Goodwin’s content was taken down by the government’s actions, that’s okay because he was probably infringing anyway:

Based on the government’s review of Mr. Goodwin’s website, ohiosportsnet.tv, the list of files uploaded by a Megaupload user using the account name “ohiosportsnet,” and the MD5 hash values of those files, it is not clear that Mr. Goodwin or his company owns the rights to all the data that he (or others using the “ohiosportsnet” account) uploaded to Megaupload. Numerous videos produced by Mr. Goodwin have as their soundtracks recordings of popular copyrighted music. Many videos on his website begin with a statement describing the copyrighted music and including a disclaimer such as “we don’t own the rights.” In addition, the “ohiosportsnet” account at Megaupload had uploaded numerous music files, including music files with MD5 values that matched the hash values of pirated versions of popular music. Even assuming Mr. Goodwin has not contracted his rights to any data uploaded to Megaupload away, the extent and nature of those rights may vary file to file.

Indeed, the nature of the rights may, in fact, vary file to file. And that’s true of everything hosted on Megaupload… or any other server online. And yet, the DOJ’s own actions were to take down the whole damn thing, ignoring the fact that there was plenty of legitimate and non-infringing content there. Yet now it wants to parse carefully about how each file may have different rights? Really?

Furthermore, as the EFF has pointed out in an interview with Tim Lee at Ars Technica, the DOJ’s admission that they specifically looked up Goodwin’s Megaupload account raises other serious questions about the DOJ abusing its powers:

But Samuels says it’s the government who has some explaining to do. “The government’s approach should terrify any user or provider of cloud computer services,” Samuels told Ars by e-mail. “The government apparently searched through the data it seized for one purpose, in order to use it against someone who was hurt by its actions but who is plainly not the target of any criminal investigation, much less the one against Megaupload.”

Samuels told us that the government’s response to Goodwin’s petition demonstrates “that if users try to get their property back, the government won’t hesitate to comb through it to try to find an argument to use against them.”

From there, the DOJ continues its sleight of hand tricks, by claiming that if Goodwin has any issue it’s with Carpathia (the hosting company) or Megaupload, since his contracts are limited to them:

Any ownership interest by Mr. Goodwin in that data would be limited by at least two separate agreements: (1) the contract between Carpathia and Megaupload regarding Megaupload’s use of Carpathia servers; and, more specifically, (2) the written agreement between Megaupload and Mr. Goodwin regarding use of Megaupload’s service. Those contracts not only bind Mr. Goodwin’s use of Megaupload’s service and Carpathia’s servers, they also likely limit any property interest he may have in the data stored on Carpathia’s property.

This conveniently ignores that the DOJ ran roughshod over any agreements and just took the whole damn thing down, and then told Carpathia to delete all the evidence. It would seem that those actions have some bearing on the legal proceedings of the guy who’d just like his data back.

Basically, the government, as it’s known to do, is playing hardball here. It doesn’t want its own actions looked at closely, so it’s challenging Goodwin’s credibility while insisting that if anything does go forward, it’s focused very very narrowly on Goodwin’s specific situation, rather than the government’s giddy bull-in-a-china-shop routine that created this mess in the first place.

Filed Under: doj, kyle goodwin, takedown
Companies: megaupload