Megaupload Say US Gov't Is Trying To Steal Assets Based On Crimes That Are 'Figments Of The Gov't's Boundless Imagination'

from the civil-fofeiture dept

We've obviously been covering the Megaupload case for many years, noting how surprisingly weak the case against Megaupload and its execs was. The case has been based mostly on a non-existent belief in some form of secondary criminal liability for copyright law that doesn't exist (there is secondary liability in civil copyright law, but not in criminal copyright law -- and while there is "aiding and abetting" in criminal law it's very different and almost certainly doesn't apply here). While part of ACTA tried to create a secondary liability for criminal copyright law, ACTA has not gone into force, since most countries rejected it.

Separately, we've also been talking quite a bit about the government's widespread abuse of civil asset forfeiture, which is basically legalized theft by the US government, often done separately from any charges against people or businesses for crimes. These cases end up with funny names -- the US government vs. some sort of "thing" like the infamous United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls, which, yes, is real. Without getting too much into the legal weeds, there are really two separate processes: seizure and forfeiture. Seizure is basically when law enforcement grabs the stuff and hangs onto it for a while. Technically, after seizure, the government is supposed to either give the stuff back... or then file for forfeiture, which is when those crazily named lawsuits come into play.

In the Megaupload case, the government seized a bunch of stuff (all of which is still in New Zealand and Hong Kong), but over in the US, the government has made a move for civil asset forfeiture, leading to a separate civil asset forfeiture case named United States of America v. All Assets Listed In Attachment A, And All Interest, Benefits, And Assets Traceable Thereto. Catchy, right? But the reality is that it's the US government trying to claim "hey, we get to keep everything we took from Kim Dotcom and Megaupload, even though we haven't actually gone through and tried him or the company yet and there's no conclusive determination of guilt, we're saying that his property is guilty and we get to keep it and buy some toys with it."

Dotcom and Megaupload are now asking for that civil forfeiture process to be dismissed, or at the very least put on hold until after the criminal cases is resolved, for obvious reasons. The full filing (pdf) is worth reading -- and once you understand what we wrote above, it should mostly make sense. Basically, Dotcom and Megaupload are pointing out that the whole criminal case is based on a very questionable interpretation of the law, and then that the attempt at forfeiture is just an even more questionable attempt to not just pile on, but to get to keep everything the US government took from Dotcom/Megaupload based on those questionable theories.
Nearly three years ago, the United States Government effectively wiped out Megaupload Limited, a cloud storage provider, along with related businesses, based on novel theories of criminal copyright infringement that were offered by the Government ex parte and have yet to be subjected to adversarial testing. Thus, the Government has already seized the criminal defendants’ websites, destroyed their business, and frozen their assets around the world—all without benefit of an evidentiary hearing or any semblance of due process. Without even attempting to serve the corporate defendants per the Federal Rules of Criminal Procedure, the Government has exercised all its might in a concerted, calculated effort to foreclose any opportunity for the defendants to challenge the allegations against them and also to deprive them of the funds and other tools (including exculpatory evidence residing on servers, counsel of choice, and ability to appear) that would equip a robust defense in the criminal proceedings.

But all that, for the Government, was not enough. Now it seeks to pile on against ostensibly defenseless targets with a parallel civil action, seeking civil forfeiture, based on the same alleged copyright crimes that, when scrutinized, turn out to be figments of the Government’s boundless imagination. In fact, the crimes for which the Government seeks to punish the Megaupload defendants (now within the civil as well as the criminal realm) do not exist. Although there is no such crime as secondary criminal copyright infringement, that is the crime on which the Government’s Superseding Indictment and instant Complaint are predicated. That is the nonexistent crime for which Megaupload was destroyed and all of its innocent users were denied their rightful property. And that is the nonexistent crime for which the Government would now strip the criminal defendants, and their families, of all their assets.
Beyond the issues related to the basic secondary liability for criminal copyright infringement, the filing further points out that the government doesn't even show that any of the "criminal" infringement took place within the US -- and the Copyright Act only applies in the US.
Nearly three years ago, the United States Government effectively wiped out Megaupload Limited, a cloud storage provider, along with related businesses, based on novel theories of criminal copyright infringement that were offered by the Government ex parte and have yet to be subjected to adversarial testing. Thus, the Government has already seized the criminal defendants’ websites, destroyed their business, and frozen their assets around the world—all without benefit of an evidentiary hearing or any semblance of due process. Without even attempting to serve the corporate defendants per the Federal Rules of Criminal Procedure, the Government has exercised all its might in a concerted, calculated effort to foreclose any opportunity for the defendants to challenge the allegations against them and also to deprive them of the funds and other tools (including exculpatory evidence residing on servers, counsel of choice, and ability to appear) that would equip a robust defense in the criminal proceedings. But all that, for the Government, was not enough. Now it seeks to pile on against ostensibly defenseless targets with a parallel civil action, seeking civil forfeiture, based on the same alleged copyright crimes that, when scrutinized, turn out to be figments of the Government’s boundless imagination. In fact, the crimes for which the Government seeks to punish the Megaupload defendants (now within the civil as well as the criminal realm) do not exist. Although there is no such crime as secondary criminal copyright infringement, that is the crime on which the Government’s Superseding Indictment and instant Complaint are predicated. That is the nonexistent crime for which Megaupload was destroyed and all of its innocent users were denied their rightful property. And that is the nonexistent crime for which the Government would now strip the criminal defendants, and their families, of all their assets. Because the Government’s Complaint improperly grasps for assets derived from extraterritorial conduct, it falls outside the subject-matter jurisdiction of this Court.

“For the Copyright Act to apply, ‘at least one alleged infringement must be completed entirely within the United States.’” Elmo Shropshire v. Canning, 2011 WL 90136, at *3 (N.D. Cal. Jan. 11, 2011) (quoting Los Angeles News Serv. v. Reuters Television Int’l, Ltd., 149 F.3d 987, 990-91 (9th Cir. 1998)); see also Columbia Pictures Indus., Inc. v. Fung, 2009 WL 6355911, at *8 (C.D. Cal. Dec. 21, 2009) aff'd in part as modified, 710 F.3d 1020 (9th Cir. 2013) (plaintiffs must show “that United States users either uploaded or downloaded copyrighted works”). Tellingly, the Complaint and the Superseding Indictment together fail to identify a single instance in which an act of infringement—particularly an unauthorized upload or download—occurred entirely within the United States.

Instead, the Complaint plainly accuses foreign activities that fall outside the scope of the Copyright Act. The Government describes Megaupload as “an international criminal enterprise,”..., and “a worldwide criminal organization,”.... Other allegations reference foreign citizenships, foreign company registrations, foreign employees, foreign bank accounts, foreign assets, and computer servers located “around the world.” .... Indeed, the reality is that Megaupload’s activities—its users, its operations, its uploadings, and its downloadings—spanned the world at all relevant times. Yet the Complaint is seeking forfeiture without specifying the location of any infringement or confining itself to U.S. borders.
Then it gets deep into that attempt by the "boundless imagination" of the US government to create secondary criminal liability where it does not exist.
The Supreme Court has recognized that, in the civil context, secondary copyright infringement liability may obtain based on uncodified “common law” doctrines. See MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 930, 937 (2005). Federal crimes, in contrast, are “solely creatures of statute.” Liparota v. United States, 471 U.S. 419, 424 (1985)....

In fact, there is no such crime. Strikingly, the criminal copyright infringement statute, 17 U.S.C. § 506(a), says nothing whatsoever about secondary liability. See, e.g., Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 434 (1984) (“The Copyright Act does not expressly render anyone liable for infringement committed by another.”). The statute does not state that criminal liability can be predicated upon theories of secondary liability, nor does it contemplate that the reach of criminal liability is to be coextensive with civil liability. Because the Government’s proposed theory of secondary criminal copyright infringement is not codified, it is unknown to federal law—and it is no basis for this Court to assert jurisdiction.

Indeed, a theory of secondary criminal copyright infringement or any species thereof, including aiding and abetting through cloud storage case, would be unconstitutional under the void-for-vagueness doctrine. “A penal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Connally v. General Construction Co., 269 U.S. 385, 391 (1926). If the Government’s theory takes hold, then ordinary people and legal scholars alike will be left guessing where civil secondary copyright infringement ends and criminality begins, particularly in an era when automated file transactions and “foot faults” faced by high-volume providers of online services are routine.
In a footnote, it also points out that Megaupload likely isn't even subject to civil secondary infringement claims, let alone criminal ones:
The Complaint’s allegations would not even satisfy the civil standards for secondary infringement, for cloud-storage technology is shielded from civil liability by the Sony doctrine, which forbids imputing liability in the context of dual-use technologies. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). Likewise, online service providers deserve protection against civil liability that is based on theories of constructive notice. See Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp. 1361 (N.D. Cal. 1995).
Furthermore, the ruling points out that the DMCA did not codify secondary liability, but, rather, did the opposite: it sought to establish standards to protect service providers from secondary liability for copyright infringement.
Thus, Congress not only declined to codify secondary liability, but further expressed its intention to protect service providers against even “monetary relief” in the civil context: it follows a fortiori that Congress did not want secondary copyright infringement to serve as a trigger for criminal punishment. The Government’s secondary criminal theory finds no traction “without rewriting the statute: an act the Congress, but not this court, can undertake.”
As for the attempt to mix and match to pretend that this is "aiding and abetting" and that aiding and abetting is the equivalent of secondary liability for criminal copyright infringement, no dice:
But that is no conceivable basis for criminal prosecution, much less resulting forfeiture. Congress specifically removed from the Copyright Act language about aiding and abetting criminal infringement. See Irina D. Manta, The Puzzle of Criminal Sanctions for Intellectual Property Infringement, 24 Harv. J.L. & Tech. 469, 481 (2011) (“Several years later, countering what had been a trend of expansion in the area of criminal sanctions, the Copyright Act of 1976 eliminated the provisions for aiding and abetting . . .”) Judicial reinsertion of the deleted language, particularly in the criminal context, would chill innovation, creating the prospect of criminal sanctions despite, for instance, compliance with express DMCA safe harbors. Even assuming arguendo that such a criminal prosecution might ever be permitted, neither 18 U.S.C. § 2323 nor 18 U.S.C. § 981 authorizes civil asset forfeiture for proceeds traceable to aiding and abetting criminal conduct. There is, accordingly, no jurisdiction for entertaining a request for civil forfeiture as pleaded here.
The filing also points out that since the property is still in Hong Kong and New Zealand, the US can't use civil forfeiture procedures against it anyway as that's outside the jurisdiction for such "in rem" procedures.
The Fourth Circuit holds that a district court does not have in rem jurisdiction unless it has “exclusive custody or control” over the property at issue. R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 964 (4th Cir. 1999) (“Only if the court has exclusive custody and control over the property does it have jurisdiction over the property”). Exclusive custody and control obviously do not exist over the foreign assets at issue here. Nor does this Court have constructive possession over the property. The “fiction” of constructive possession requires that the Court possess some part of Claimants’ assets. R.M.S. Titanic I, 171 F.3d at 964. Yet no portion of the assets sought by the Government resides in this district.
On top of everything else, the government doesn't even properly make a single claim of copyright infringement, with all of the necessary attributes of such a claim:
Missing from the Government’s pleadings are specifics about, e.g., (i) what works are at issue; (ii) whether those works are registered in the United States; (iii) whether those works were uploaded or downloaded and stored in the United States; (iv) which end users performed the infringing acts; (v) whether the end users acted with the intent to violate United States copyright law and (vi) when the alleged acts of infringement occurred (and whether they fell within the Copyright Act’s five-year statute of limitations). 17 U.S.C. § 507(a). The Complaint does not contain a single instance of infringement as to which all of the requisite facts have been pleaded.

The closest the Complaint comes to these specifics is mentioning that Dotcom distributed a link to an unnamed “musical recording” by “50 Cent.” ... The Complaint does not allege the name of the recording; its copyright registration number; the authorization status of link; whether Dotcom properly purchased the recording; who uploaded the file to create the link; who (if anyone) downloaded the file from the link; where any uploads or downloads occurred; or where Dotcom was geographically when he distributed the link. The Complaint does provide a date of distribution (December 3, 2006) but that date falls more than five years before the first Criminal Indictment, well outside the five-year statute of limitations set by 17 U.S.C. § 507(a).
And of course, for it to be criminal, it would have to be willful, and yet (once again) the US government fails to do anything to show how any of the infringement was willful. Specifically, as we've noted in other similar cases, the government would have to show that the users of Megaupload were both infringing willfully and for profit, and that the execs of Megaupload were actively aiding and abetting -- knowing that the end users were doing so willfully. Here the government is doing the same thing that's been done in other cases (without success) arguing that the users are infringing and the site is profiting, and thus it's both willful and for profit, but that's combining different people and different actions in a manner that the law does not accept.

On top of all of that the filing questions why the government is seeking to seize everything. Not only has it not shown a reason to seize any of the assets, it appears to be arguing that all of the proceeds from Megaupload were illegal and thus can be taken by the US government.

While this is a separate action from the other Megaupload situations we've covered -- regarding the criminal case in the US and the extradition attempt in New Zealand -- it certainly does a pretty good job laying out the significant weaknesses in the overall case.

Reader Comments

The First Word

It's an end-around tactic

The DoJ has stepped in it, and they know it. If they actually thought they had a solid case, they could have and should have spent years preparing it: after all, no persons were in any kind of danger, so what's the rush? They could have and should have had evidence stacked to the rafters, in a pile so massive and overwhelming that even if 90% was thrown out on various grounds, they'd still have enough to make their case.

But they didn't do that. They leapt into this, grandstanding and showboating, taking advantage of Dotcom's celebrity and trying to score PR points instead of actually -- and I know this is a novel concept for the DoJ -- trying to achieve something vaguely like "justice". (Maybe they read the sign over the door more often.)

And now they're floundering. They've realized that they don't have a case and that if this goes to trial, they're going to get their asses kicked...which will not sit well with their overlords in the MAFIAA.

So they have no intention of going to trial. They don't need to, they don't want to, and they're going to make it as difficult as possible for Dotcom to force the issue by stripping as many assets as they can. (Watch: their next move will be to go after his current assets.) And then they do...NOTHING. They won't need to, and they won't want to, because they can string this out for the next 10, 20, 30 years and wait for the principals to die off...neatly tying off all the loose ends.

This has devolved into a face-saving exercise combined with punitive retribution against Dotcom for not being an obedient victim and meekly agreeing to whatever bullshit charges were thrown at him. They tried to nail his hide to the wall, to make an example out of him, and it didn't work. Now it's just cleanup.
—Anonymous Coward

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  • identicon
    Reality bites, 13 Oct 2014 @ 8:23am

    USA Feral gov at work

    Its amazing what you can get done with a large well financed group of psychopathic thugs.

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  • identicon
    David, 13 Oct 2014 @ 8:28am

    Do you want the bad guys to win?

    And who but Hollywood is best prepared to know a bad guy when it sees one?

    You are just trying to push courts into heeding the law rather than jailing the bad guys.

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  • icon
    That Anonymous Coward (profile), 13 Oct 2014 @ 8:29am

    And this farce continues as they attempt anything to move the ball yet again.

    This material was seized in a "criminal" case, that has yet to be heard so awarding possession before the outcome seems to be wrong.

    They destroyed the company at the behest of corporations, they can not make a case under the law, and now seek yet another way to punish him for alleged crimes and laws stretched well beyond the breaking point.

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    • icon
      Ninja (profile), 13 Oct 2014 @ 8:40am

      Re:

      Tbh I believe the punishment is the process itself. Dotcom was smart enough to start other companies and invest to stay afloat and he had plenty of funds to begin with. So he's actually the exception. Most people would have succumbed to the weight of the judicial process cost before all the abuses came to light. Which is exactly where the Govt made its mistake. They gobbled a prey too big to swallow and are now being damaged - whether they will swallow Dotcom or not is up for debate but he won't go without wrecking things in his way.

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  • identicon
    Anonymous Coward, 13 Oct 2014 @ 8:43am

    TO: The Department Of Justice

    RE: Megaupload

    Shame on you for believing that a Hollywood script is reality. You should know better.

    In re: asset forfeiture - Your continuing doubling-down just makes you look like a bunch of incompetent assholes.

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    antidirt (profile), 13 Oct 2014 @ 8:44am

    I know it's Dotcom, so you've taken off your Skeptic Hat and put on your Believer Cap, but some of these arguments are just dumb. You do realize that Dotcom's lawyers are just throwing out whatever they can think of to protect Dotcom's assets, no matter how little merit the argument has, right? It's strange how you just repeat these arguments like they're the end of the matter.

    Just a couple of examples for ya:

    (1) Dotcom argues that there is no such thing as aiding and abetting criminal copyright infringement because that language was taken out of the Copyright Act: "But that is no conceivable basis for criminal prosecution, much less resulting forfeiture. Congress specifically removed from the Copyright Act language about aiding and abetting criminal infringement." The obvious response to this is that 18 U.S.C. 2 criminalizes aiding and abetting criminal copyright infringement--and that's the statute that Dotcom is charged under. While aiding and abetting under Section 104 was changed, that doesn't change Section 2. Congress didn't remove the language from Section 104 to suddenly make it legal to aid and abet a criminal infringer. Give me a break.

    (2) Dotcom argues that the court doesn't have personal jurisdiction over the property: "Exclusive custody and control obviously do not exist over the foreign assets at issue here. Nor does this Court have constructive possession over the property." This is dumb. The court took control over the property when its warrants were executed and the property seized. It's precisely because the court has control over the property that Dotcom doesn't have that control. The court took it from him. See, for example, United States v. All Funds on Deposit in Four Swiss Bank, 2011 WL 7102568 (E.D. Va. Oct. 26, 2011) ("There is in rem jurisdiction pursuant to 28 U.S.C. § 1355(b)(2), as . . . there is constructive control over the foreign assets at issue pursuant to the service of the warrant of arrest discussed supra.")

    Dotcom makes some good points, but he makes some bad ones too. Why are you so skeptical of the government's position, but not at all skeptical of Dotcom's position? This is a double standard--and further evidence that you're pro-piracy, by the way.

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    • icon
      That Anonymous Coward (profile), 13 Oct 2014 @ 8:54am

      Re:

      "to aid and abet a criminal infringer"

      Please show the class where ANYONE has been convicted of criminal infringement in the MegaUpload case.
      See cause to charge him with helping a criminal, in a system where innocent until proven guilty, requires there to be an adversarial legal process where guilt or innocence is proven before we can just slap a label on someone and pretend that is enough to run with.

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        antidirt (profile), 13 Oct 2014 @ 9:05am

        Re: Re:

        Please show the class where ANYONE has been convicted of criminal infringement in the MegaUpload case.
        See cause to charge him with helping a criminal, in a system where innocent until proven guilty, requires there to be an adversarial legal process where guilt or innocence is proven before we can just slap a label on someone and pretend that is enough to run with.


        As you well know, Dotcom is fighting like hell to avoid his day in court in the United States. But that's not the point. Dotcom is arguing that there's no such thing as aiding and abetting criminal copyright infringement. That's not true. The statute is 18 U.S.C. 2 (combined with 17 U.S.C. 506). That's the statute he's charged under for the aiding and abetting charge. This particular action is a civil forfeiture in rem. There's no need for the underlying crime to be proved first (that's criminal forfeiture). With a civil forfeiture, the standard is that the underlying crime has to be proved by a preponderance of the evidence. The government has to meet that burden before the property can be forfeited. The constitutionality of this type of in rem action has been tested and held not to violate due process by the Supreme Court.

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        • icon
          Josh in CharlotteNC (profile), 13 Oct 2014 @ 9:15am

          Re: Re: Re:

          So they're trying unsuccessfully to get Dotcom under criminal charges, but want the lower bar of civil forfeiture to seize his assets?

          And you don't think that's so seriously fucked up as to call in question the motivations of the government?

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            icon
            antidirt (profile), 13 Oct 2014 @ 9:26am

            Re: Re: Re: Re:

            So they're trying unsuccessfully to get Dotcom under criminal charges, but want the lower bar of civil forfeiture to seize his assets?

            Dotcom could get on a plane to the United States and prove his innocence. But he's not doing that. I'm surprised the U.S. waited so long to go after the assets.

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            • icon
              Josh in CharlotteNC (profile), 13 Oct 2014 @ 9:33am

              Re: Re: Re: Re: Re:

              The obvious response to your statement is that no one needs to "prove his innocence" in a free country. If the government wants his stuff or to deprive him of his freedom, it needs to prove his guilt beyond a reasonable doubt.

              Your dictatorial authoritarianism is showing.

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                antidirt (profile), 13 Oct 2014 @ 9:37am

                Re: Re: Re: Re: Re: Re:

                The obvious response to your statement is that no one needs to "prove his innocence" in a free country. If the government wants his stuff or to deprive him of his freedom, it needs to prove his guilt beyond a reasonable doubt.

                Good point. The burden is on the government to prove his guilt. You're right.

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                • icon
                  Josh in CharlotteNC (profile), 13 Oct 2014 @ 9:51am

                  Re: Re: Re: Re: Re: Re: Re:

                  You've thoroughly confused me by accepting I was right. Is this one of those rabbit season/duck season exchanges where you expect me to reflexive take the position opposite yours?

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                  • identicon
                    Anonymous Coward, 13 Oct 2014 @ 9:59am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    I think you just crashed AJ!

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                    antidirt (profile), 13 Oct 2014 @ 10:59am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    You've thoroughly confused me by accepting I was right. Is this one of those rabbit season/duck season exchanges where you expect me to reflexive take the position opposite yours?

                    There's no catch! If I'm wrong, and someone calls me on it, I admit it. It's a rarity on the internet, so that's probably why you're confused. :)

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                    • identicon
                      Anonymous Coward, 13 Oct 2014 @ 12:38pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      I don't know why this and your previous comment in this threadding were reported.
                      This is the kind of thing we should not be doing.

                      People are allowed to have conflicting opinions and as long as they're civil about it then we should not be reporting them.

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                      • icon
                        RonKaminsky (profile), 13 Oct 2014 @ 1:07pm

                        No big loss, anyway...

                        Theoretically, you are right... but didn't you notice that AD only states "you are right / I was wrong", which in the absence/reporting of his original posts does not add anything to the discussion.

                        He carefully didn't actually state anything which is worth reading on its own. If he had stated "I was wrong, and the US government has no justification to seize Dotcom's assets", then I would agree with you that the posts shouldn't have been reported (and I have a suspicion that "you" are actually AD).

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                        icon
                        antidirt (profile), 13 Oct 2014 @ 1:38pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        I don't know why this and your previous comment in this threadding were reported.
                        This is the kind of thing we should not be doing.

                        People are allowed to have conflicting opinions and as long as they're civil about it then we should not be reporting them.


                        I imagine the same people who are "reporting" my posts would proclaim their devotion to free speech and to the importance of dissenting views when asked. Thanks for saying something. It'd be nice if Mike said something about it, but since I'm being critical of him, I doubt he will.

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                        • identicon
                          Anonymous Coward, 13 Oct 2014 @ 2:01pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          oh god...you're not going to start clucking again, are you?

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                        • icon
                          Niall (profile), 14 Oct 2014 @ 2:27am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          I'd rather be able to downvote you (would that be censorship too?) but we work with the tools we're given.

                          I also might have more respect for your position if it were not automatically against every single article here. Even regular commenters will disagree with Mike (or other posters) on occasion, and say so. I know there's a few areas where I differ with him. But you, you are like a negative image (and I mean that emotionally as well as literally) of the site.

                          In the extremely odd case where you have constructively added to the overall post, it has been refreshing and helpful. It is a shame that it is rarer than a blue moon. It also does you no good to mawkishly whine over people 'daring' to report you (being fed up with your unhelpful negativity), let alone getting a little trigger-happy with the Report button.

                          No-one expects you to agree fully with Mike or the other posters, but appearing to automatically disagree with everything they say seems really petty.

                          In short, you do yourself no favours, and if you wish to be taken seriously (which I assume you do if you post here) and don't want to end up losing any actual message you are trying to convey in all the garbage, negativity and whining, you need to stop constantly attacking, and try adding constructive criticsm.

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                        identicon
                        Anonymous Coward, 13 Oct 2014 @ 2:16pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        I don't know why this and your previous comment in this threadding were reported.
                        This is the kind of thing we should not be doing.

                        People are allowed to have conflicting opinions and as long as they're civil about it then we should not be reporting them.


                        Are you kidding? This is Techdirtbag Nation- home of the anti-copyright echo chamber.

                        reply to this | link to this | view in chronology ]

                    • identicon
                      RD, 13 Oct 2014 @ 1:49pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      "There's no catch! If I'm wrong, and someone calls me on it, I admit it. It's a rarity on the internet, so that's probably why you're confused. :)"

                      BWAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!

                      (deep breath)

                      BWAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!

                      (deep breath)

                      BWAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAJesus fucking christ you were serious?????

                      Dude, come on, you CAN NOT, with a straight face, make the claim that if you are called on something you admit it. You have NEVER admitted any such thing and you have been PROVEN wrong on many many occasions.

                      I'd laugh more if it wasn't so pathetically sad that you actually think this.

                      reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 13 Oct 2014 @ 9:40am

              Re: Re: Re: Re: Re:

              Well, that just shows you for the moral coward you are. There is no 'prove their innocence'. It should always be 'prove him guilty'.

              Civil forfeiture proceedings, whilst they may have legitimate uses, are being used for largely illegitimate ends; i.e. they're primarily used for theft from the populace, under the guise of 'suspected of X', where X can be drug purchasing, firearm purchasing and possession of illegal drugs.

              The fact that this legalised theft system is being used to steal what is still a legitimate business operation (having not, y'know, been proven guilty in a court of law) is nothing short of a fascist intent, given that there is a huge hate-on for MU Ltd.

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            • identicon
              Baron von Robber, 13 Oct 2014 @ 9:41am

              Re: Re: Re: Re: Re:

              "Dotcom could get on a plane to the United States and prove his innocence."

              You mispelled North Korea.

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            • identicon
              Anonymous Coward, 13 Oct 2014 @ 10:17am

              Re: Re: Re: Re: Re:

              Dotcom could get on a plane to the United States and prove his innocence.

              I see...so that's how justice is supposed to work? You need to prove you're innocent?

              What you wrote is exactly the problem.

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                antidirt (profile), 13 Oct 2014 @ 10:26am

                Re: Re: Re: Re: Re: Re:

                I see...so that's how justice is supposed to work? You need to prove you're innocent?

                What you wrote is exactly the problem.


                It was an offhand remark, and I wasn't thinking of the burden of proof at trial. Obviously, the government has to prove his guilt first, and then the burden shifts to him to prove his innocence. If the government can't prove his guilt, then his presumed innocence will win the day.

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                • identicon
                  Anonymous Coward, 13 Oct 2014 @ 10:28am

                  Re: Re: Re: Re: Re: Re: Re:

                  "Obviously, the government has to prove his guilt first, and then the burden shifts to him to prove his innocence. If the government can't prove his guilt, then his presumed innocence will win the day."

                  So why are you presuming guilt, boy?

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        • identicon
          Quiet Lurcker, 13 Oct 2014 @ 10:14am

          Re: Re: Re:

          As you well know, Dotcom is fighting . . . to avoid his day in court in the United States.

          http://arstechnica.com/tech-policy/2012/07/kim-dotcom-offers-to-come-to-us-rather-than-be-ext radited/

          Would you care to re-visit that opinion, sir?

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            antidirt (profile), 13 Oct 2014 @ 10:25am

            Re: Re: Re: Re:

            As you well know, Dotcom is fighting . . . to avoid his day in court in the United States.

            http://arstechnica.com/tech-policy/2012/07/kim-dotcom-offers-to-come-to-us-rather-than-be-ext radited/

            Would you care to re-visit that opinion, sir?


            He doesn't get some special rules just for him. He'd have to play by the same rules as every other criminal defendant.

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            • icon
              Rikuo (profile), 13 Oct 2014 @ 10:27am

              Re: Re: Re: Re: Re:

              Including the rule that states criminal defendants have the right to a speedy trial? We're about to hit THREE YEARS since the initial raid that began all of this and so far, no trial.

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                antidirt (profile), 13 Oct 2014 @ 10:34am

                Re: Re: Re: Re: Re: Re:

                Including the rule that states criminal defendants have the right to a speedy trial? We're about to hit THREE YEARS since the initial raid that began all of this and so far, no trial.

                He's stalling the trial by fighting extradition. That doesn't mean he's not getting a speedy trial.

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                • identicon
                  Anonymous Coward, 13 Oct 2014 @ 10:44am

                  Re: Re: Re: Re: Re: Re: Re:

                  Thr fact the NZ courts are agreeing with Dotcom's viewpoint on extradition speaks for itself, boy.

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                • identicon
                  Anonymous Coward, 13 Oct 2014 @ 10:49am

                  Re: Re: Re: Re: Re: Re: Re:

                  The DoJ has yet to meet the burden of proof for extradition, much less trial!

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                • icon
                  JMT (profile), 13 Oct 2014 @ 2:01pm

                  Re: Re: Re: Re: Re: Re: Re:

                  So answer us this: If you were accused of a crime by a foreign government and felt very strongly that (a) you were innocent, and (b) that you would not receive a fair trail based on the government's behavior so far, would you simply throw yourself on the court's mercy or would you fight extradition, as is your right.

                  There are very good reasons why extradition is not a simple rubber-stamp process. You don't seem to think you should be able to protect yourself from foreign court systems.

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                • icon
                  Niall (profile), 14 Oct 2014 @ 2:31am

                  Re: Re: Re: Re: Re: Re: Re:

                  Ok, so post a picture of a Swastika on your web page or Facebook. Then we'll get a German prosecutor to charge you with breaking their anti-Nazi law. Feel free to fly to Germany to defend your 'innocence'.

                  Oh noes, did your wife/gf post a picture of her sitting in control of a car? She'd better get over to Saudi Arabia double-quick!

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            • identicon
              Anonymous Coward, 13 Oct 2014 @ 10:28am

              Re: Re: Re: Re: Re:

              He'd have to play by the same rules as every other criminal defendant.

              Well, technically, yes he does warrant special treatment...he's not an American citizen. Be careful what you wish for. You'd have a shit fit if other sovereign nations could just force American citizens abroad because we violated one of their laws.

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        • identicon
          Anon, 13 Oct 2014 @ 12:48pm

          Re: Re: Re:

          As you well know, Dotcom is fighting like hell to avoid his day in court in the United States

          That is not true (but I guess you're too blinkered in thinking to have absorbed the information). Perhaps you haven't read up on the story..

          Dotcom has time and again stated that he would willingly have this out in a US court IF he were to be allowed a fair trial and bail. The DOJ has refused those guarantees in official discussions.

          The DOJ would NOT allow him access to funds to mount a proper defence and neither would they allow him bail - he would be incarcerated the whole time and the US likely delay the case for a number of years i.e. a few years incarceration without trial.

          Just see the examples of the US justice system in the news e.g. 3 years incarceration for black juveniles awaiting formal charge and then all accusations suddenly dropped . And then factor in the powerful lobby groups wanting Dotcom specifically taken down, the embarrasment to the US if this action fails.

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            antidirt (profile), 13 Oct 2014 @ 1:40pm

            Re: Re: Re: Re:

            Dotcom has time and again stated that he would willingly have this out in a US court IF he were to be allowed a fair trial and bail. The DOJ has refused those guarantees in official discussions.

            He'll get the same chance at bail as any other defendant.

            The DOJ would NOT allow him access to funds to mount a proper defence and neither would they allow him bail - he would be incarcerated the whole time and the US likely delay the case for a number of years i.e. a few years incarceration without trial.

            I've yet to see a decent explanation of how the government is withholding exculpatory evidence from him. I don't believe they are.

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            identicon
            Anonymous Coward, 13 Oct 2014 @ 2:19pm

            Re: Re: Re: Re:

            The DOJ would NOT allow him access to funds to mount a proper defence and neither would they allow him bail - he would be incarcerated the whole time and the US likely delay the case for a number of years i.e. a few years incarceration without trial.


            1. Ummmm. There's these things called bail hearings. They're before a judge, not pre-determined.

            2. He seems to have plenty of money to fight extradition from NZ.

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    • identicon
      RD, 13 Oct 2014 @ 8:54am

      Re:

      "I know it's Dotcom, so you've taken off your Skeptic Hat and put on your Believer Cap..."

      Auto-report.

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    • identicon
      Anonymous Coward, 13 Oct 2014 @ 8:55am

      Re:

      Believing in due process means I'm pro-piracy?

      Wow, I never knew...

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        antidirt (profile), 13 Oct 2014 @ 9:06am

        Re: Re:

        Believing in due process means I'm pro-piracy?

        Wow, I never knew...


        No. Taking everything Dotcom argues at face value, while being skeptical of everything the government argues, shows a pro-piracy bias. That said, please explain how any of this violates due process.

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          identicon
          Anonymous Coward, 13 Oct 2014 @ 9:12am

          Re: Re: Re:

          Masnick is Dotcom's Mini-Me.

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        • identicon
          RD, 13 Oct 2014 @ 9:15am

          Re: Re: Re:

          "No. Taking everything Dotcom argues at face value, while being skeptical of everything the government argues, shows a pro-piracy bias"

          Wrong.

          Taking everything Dotcom argues at face value, while being skeptical of everything the government argues, shows a *pro due process" bias.

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        • icon
          John Fenderson (profile), 13 Oct 2014 @ 9:20am

          Re: Re: Re:

          "Taking everything Dotcom argues at face value, while being skeptical of everything the government argues, shows a pro-piracy bias."

          That's a huge logical leap right there. Take the case of me, for instance. When the DotCom case first came up, I thought the he was very likely guilty. However, as more and more details of the case and the behavior of the US government came to light, it increasingly appeared that he was simply being railroaded, and he looked less and less guilty to me.

          This has literally nothing to do with being pro or anti-piracy (I'm personally anti-piracy, anyway, so if there's a personal bias involved, it would lean that direction). It has to do with being pro-justice.

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          • icon
            RonKaminsky (profile), 13 Oct 2014 @ 1:34pm

            Pro- / Anti- == false dichotomy

            People keep throwing around these pro- and anti- prefixes, but in the end, they don't mean much, or possibly anything at all, because they are usually just a shorthand for the logical fallacy of "false dichotomy".

            I'm also anti-piracy, but then, I'm also anti-littering. I'm not sure which should have the greater punishment, it seems to me to be a matter of context.

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        • identicon
          Anonymous Coward, 13 Oct 2014 @ 10:00am

          Re: Re: Re:

          The problem is that you've already convicted Dotcom in your head of "piracy" just like the US Government.

          You've created a false dilemma. Arguing against that bias isn't a "pro-piracy" bias because those aren't the only two options. You can be pro-due process without being pro-"piracy" or even pro-Dotcom.

          Even if piracy were actually an appropriate term here, there can't be a pro-"piracy" bias because no copyright infringement has been proven. The US system of justice is supposed to have a pro-accused-but-not-convicted bias to presume innocence.

          That's how it's a violation of due process. The Government is presuming guilt and proceeding on that basis. Any actions taken with that starting point are de facto violations of due process.

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            antidirt (profile), 13 Oct 2014 @ 10:54am

            Re: Re: Re: Re:

            The problem is that you've already convicted Dotcom in your head of "piracy" just like the US Government.

            I think what he did is morally wrong. I'm less certain that it's legally criminal. I don't have all the arguments yet.

            You've created a false dilemma. Arguing against that bias isn't a "pro-piracy" bias because those aren't the only two options. You can be pro-due process without being pro-"piracy" or even pro-Dotcom.

            The bias is that he's always super-skeptical of anything pro-copyright, and he loses his skepticism when it's anti-copyright.

            Even if piracy were actually an appropriate term here, there can't be a pro-"piracy" bias because no copyright infringement has been proven. The US system of justice is supposed to have a pro-accused-but-not-convicted bias to presume innocence.

            Nonsense. He can be pro-piracy by siding with the alleged infringers either before or after a court has ruled on it. Can you find any posts of his that lead you to think he's pro-copyright?

            That's how it's a violation of due process. The Government is presuming guilt and proceeding on that basis. Any actions taken with that starting point are de facto violations of due process.

            Huh? They aren't presuming his guilt. His innocence is presumed. They have probably cause that he's committed criminal acts. That leads to the warrants and arrest. Then, the government has the burden of proving he's a criminal. It works like this for everyone, and it doesn't violate procedural due process.

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            • identicon
              Anonymous Coward, 13 Oct 2014 @ 11:28am

              Re: Re: Re: Re: Re:

              Probable cause DOES NOT EQUAL proven guilty.

              That's it. Nothing more needs to be said.

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            • icon
              John Fenderson (profile), 13 Oct 2014 @ 12:02pm

              Re: Re: Re: Re: Re:

              "He can be pro-piracy by siding with the alleged infringers either before or after a court has ruled on it. Can you find any posts of his that lead you to think he's pro-copyright?"

              I'm not going to delve into Mike's stance on copyright, since it's very clear to most of us and is a red herring of an issue, but I did want to point out that "pro-piracy" and "pro-copyright" are not exactly opposites. One can easily believe that the current copyright law is terrible while at the same time believing that piracy is wrong. I know I do, anyway.

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                antidirt (profile), 13 Oct 2014 @ 12:19pm

                Re: Re: Re: Re: Re: Re:

                I'm not going to delve into Mike's stance on copyright, since it's very clear to most of us and is a red herring of an issue, but I did want to point out that "pro-piracy" and "pro-copyright" are not exactly opposites. One can easily believe that the current copyright law is terrible while at the same time believing that piracy is wrong. I know I do, anyway.

                Have you ever seen any evidence that Mike supports any copyright rights for authors whatsoever?

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                • icon
                  John Fenderson (profile), 13 Oct 2014 @ 12:25pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Yes, and over the years much it has been pointed out numerous times in response to your accusations. Enough said.

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                    antidirt (profile), 13 Oct 2014 @ 1:36pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Yes, and over the years much it has been pointed out numerous times in response to your accusations. Enough said.

                    If it's been proven so many times, it should be easy for you to show us this evidence now. What's the evidence?

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                    • identicon
                      Anonymous Coward, 13 Oct 2014 @ 10:37pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      AJ, you know the link we speak of.

                      You got royally smacked down by Mike and he set you straight. Wasn't that around the time the barnyard noises started?

                      Fortunately after that episode you dissapeared for a few months (maybe you spent time in a padded cell, not sure).

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                    identicon
                    Anonymous Coward, 13 Oct 2014 @ 1:52pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Funny. You always seem to have links and citations at the ready. Except now, of course.

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        • icon
          Rikuo (profile), 13 Oct 2014 @ 10:02am

          Re: Re: Re:

          "while being skeptical of everything the government argues"

          We're SUPPOSED to be skeptical of anything the government says in a criminal case. That's why there's a thing called due process. The government is a very powerful entity, far more powerful than your average citizen. However, to try and limit this power, (such as when the government wants to charge someone with a crime and lock them up), the government has to go through a trial and present evidence in favour of its argument.
          Like with the default position of atheists, the null hypothesis. Atheists lack a belief in a god and must be convinced via argument and/or evidence. Same principle applies here: Dotcom is considered innocent until proven guilty. I lack a belief that Dotcom is guilty, precisely because so far, there has been little to no evidence that he is.

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        • identicon
          Anonymous Coward, 13 Oct 2014 @ 10:27am

          Re: Re: Re:

          "Taking everything Dotcom argues at face value, while being skeptical of everything the government argues, shows a pro-piracy bias."

          Isn't the core of American justice "innocent until PROVEN guilty", boy?

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            antidirt (profile), 13 Oct 2014 @ 10:33am

            Re: Re: Re: Re:

            Isn't the core of American justice "innocent until PROVEN guilty", boy?

            Yes, but that doesn't mean we should just assume that all of Dotcom's self-serving arguments are correct.

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            • identicon
              Anonymous Coward, 13 Oct 2014 @ 10:47am

              Re: Re: Re: Re: Re:

              "Isn't the core of American justice "innocent until PROVEN guilty", boy?"

              "Yes, but that doesn't mean we should just assume that all of Dotcom's self-serving arguments are correct."

              It also doesn't it mean we should just assume that all of DoJ's self-serving arguments are correct, right, boy?

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              • identicon
                Anonymous Coward, 13 Oct 2014 @ 10:50am

                Re: Re: Re: Re: Re: Re:

                "It also doesn't mean we should just assume that all of DoJ's self-serving arguments are correct, right, boy?"

                Corrected...

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        • identicon
          Anonymous Coward, 13 Oct 2014 @ 10:40am

          Re: Re: Re:

          "No. Taking everything Dotcom argues at face value, while being skeptical of everything the government argues, shows a pro-piracy bias. That said, please explain how any of this violates due process."

          At this point in time, based on the government's own history and evidence, Kim Dotcom has more credibility and respectability than the entire U.S. government.

          As for violates due process, it depends naturally how you look at it. For someone like you, who loves weasel words and changing definitions to suit your needs, it doesn't. For the rest of the class, we could start with how the U.S. government took data and hard drives from the raid in New Zealand AFTER it was ruled they couldn't do so. Violation of due process. Oh wait, it wasn't a violation of U.S. due process, so that makes it okay in your book.

          Hypocrisy, thy name is antidirt.

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            antidirt (profile), 13 Oct 2014 @ 10:49am

            Re: Re: Re: Re:

            As for violates due process, it depends naturally how you look at it. For someone like you, who loves weasel words and changing definitions to suit your needs, it doesn't. For the rest of the class, we could start with how the U.S. government took data and hard drives from the raid in New Zealand AFTER it was ruled they couldn't do so. Violation of due process. Oh wait, it wasn't a violation of U.S. due process, so that makes it okay in your book.

            Did a court in NZ rule that copying the drives for the US violated his due process rights under NZ law? If so, that sucks. I don't recall that being the case, though.

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            • identicon
              Anonymous Coward, 13 Oct 2014 @ 12:55pm

              Re: Re: Re: Re: Re:

              You're playing the same word games and double-think games that the Dept. of Justice has been playing. You conflate what the Government has been able to get away with/hasn't been held accountable for with what is "legal" simply because there isn't an uncorrupted person in power over them that has put a stop to their unjust acts. What's "legal" in the sense of "nobody can stop the Government from doing this" or "the corrupt Government made up policies and memos that argues that their actions are 'legal'" is not the same thing as actually being legal. Just because the Government makes a habit of violating the Constitution and Due Process and gets away with it doesn't mean that its actions are actually legal. It definitely doesn't mean that its actions are ethical or just.

              It's a red herring to ask for a court ruling that supports the argument that its unjust because its only intended, but not necessarily true, that a court would make a ruling that determines whether due process has been violated. If the system is corrupt, you can't expect just rulings to happen at all, much less quickly and/or decisively.

              Expecting justice from a corrupt justice system is like expecting the truth from a pathological liar. On occasion, he may tell the truth, but you can't expect it every time.

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                antidirt (profile), 13 Oct 2014 @ 1:42pm

                Re: Re: Re: Re: Re: Re:

                You're playing the same word games and double-think games that the Dept. of Justice has been playing. You conflate what the Government has been able to get away with/hasn't been held accountable for with what is "legal" simply because there isn't an uncorrupted person in power over them that has put a stop to their unjust acts. What's "legal" in the sense of "nobody can stop the Government from doing this" or "the corrupt Government made up policies and memos that argues that their actions are 'legal'" is not the same thing as actually being legal. Just because the Government makes a habit of violating the Constitution and Due Process and gets away with it doesn't mean that its actions are actually legal. It definitely doesn't mean that its actions are ethical or just.

                It's a red herring to ask for a court ruling that supports the argument that its unjust because its only intended, but not necessarily true, that a court would make a ruling that determines whether due process has been violated. If the system is corrupt, you can't expect just rulings to happen at all, much less quickly and/or decisively.

                Expecting justice from a corrupt justice system is like expecting the truth from a pathological liar. On occasion, he may tell the truth, but you can't expect it every time.


                I'm a big supporter of due process, and if I thought Dotcom's due process rights were being violated, I'd say so. I think Dotcom will get a fair trial, should there ever be one.

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      • identicon
        mcinsand, 13 Oct 2014 @ 9:32am

        believing in due process is just like believing in our rights

        >>Believing in due process means I'm pro-piracy?

        >>Wow, I never knew...

        Now you know. Believing in due process is just like believing in the 4th Amendment. And, if you do not believe in either, then you are definitely a pro-piracy terrorist!

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        • identicon
          Anonymous Coward, 13 Oct 2014 @ 10:02am

          Re: believing in due process is just like believing in our rights

          No, if you don't believe in the 4th Amendment or due process, you're the US Dept. of "Justice."

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    • icon
      Josh in CharlotteNC (profile), 13 Oct 2014 @ 9:05am

      Re:

      The obvious response to this is that 18 U.S.C. 2 criminalizes aiding and abetting criminal copyright infringement--and that's the statute that Dotcom is charged under.

      Has this legal argument been tested in other cases, or is it just as novel as all the rest of the DOJ's bullshit?

      We're all skeptical of the government case because they have submitted zero solid evidence of their allegations, have repeatedly tried to have possible exculpatory evidence destroyed, and frankly are among friends in bumbling legal arguments as Prenda, Roca Labs, or your average pro se litigant submitting briefs about CIA mind control chips and the antichrist in crayons.

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        antidirt (profile), 13 Oct 2014 @ 9:20am

        Re: Re:

        Has this legal argument been tested in other cases, or is it just as novel as all the rest of the DOJ's bullshit?

        The aiding and abetting thing was dropped from Section 104 because it was redundant--Section 2 of Title 18 already criminalizes aiding and abetting. See, for example, Benton Martin, Jeremiah Newhall, Criminal Copyright Enforcement Against Filesharing Services, 15 N.C. J. L. & Tech. 101, 108 (2013) ("Although the 1976 Act dropped all mention of 'aiding and abetting' from the copyright statute, it appears that this change was intended merely to remove surplusage because this conduct remained a crime under 18 U.S.C. § 2."). It's not some crazy theory that the government cooked up just for Dotcom. "Persons who knowingly and willfully aid or abet copyright infringement are subject to the same criminal penalties as apply to the principal." 5-15 Nimmer on Copyright § 15.01.

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        • icon
          Josh in CharlotteNC (profile), 13 Oct 2014 @ 9:46am

          Re: Re: Re:

          See, for example, Benton Martin, Jeremiah Newhall, Criminal Copyright Enforcement Against Filesharing Services, 15 N.C. J. L. & Tech. 101, 108 (2013)

          2013?

          It's not some crazy theory that the government cooked up just for Dotcom.

          The MegaUpload shutdown happened in January 2012.

          So at the very least, the government cooked this up for Dotcom and then used it on someone else no one has heard of later.

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            antidirt (profile), 13 Oct 2014 @ 11:01am

            Re: Re: Re: Re:

            The MegaUpload shutdown happened in January 2012.

            So at the very least, the government cooked this up for Dotcom and then used it on someone else no one has heard of later.


            That paper was published in 2013, but it's discussing the change to the Copyright Act in the 1970s. Aiding and abetting criminal infringement has been a crime for over a century.

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            • icon
              Josh in CharlotteNC (profile), 13 Oct 2014 @ 1:17pm

              Re: Re: Re: Re: Re:

              Then find me a case even vaguely similar to Megaupload, where a service provider was found guilty of aiding and abetting criminal copyright infringement despite no one else even being charged with the direct infringement.

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                antidirt (profile), 13 Oct 2014 @ 1:47pm

                Re: Re: Re: Re: Re: Re:

                Then find me a case even vaguely similar to Megaupload, where a service provider was found guilty of aiding and abetting criminal copyright infringement despite no one else even being charged with the direct infringement.

                The rule applies to aiding and abetting liability under Section 2 generally, not just Section 2 applied to criminal infringement. If I have time later, I'll find you a cite.

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                antidirt (profile), 13 Oct 2014 @ 3:55pm

                Re: Re: Re: Re: Re: Re:

                Here's a good statement of the law on aiding and abetting, pointing out that there need not be a conviction of the underlying crime:
                The aiding and abetting statute, 18 U.S.C. § 2, does not establish a separate crime, but rather is an alternative charge that permits one to be found guilty as a principal for aiding or procuring someone else to commit the offense. United States v. Martin, 747 F.2d 1404, 1407 (11th Cir.1984). A jury may find a person guilty of aiding and abetting even though he or she did not commit all the acts constituting the elements of the substantive crime charged. Id. Nonetheless, as an element of the offense of aiding and abetting, the government must prove that someone committed the underlying crime. See United States v. Raper, 676 F.2d 841, 849 (D.C.Cir.1982) (listing elements); United States v. Hurd, 642 F.2d 1179, 1183 (9th Cir.1981) (aiding and abetting conviction reversed when it was shown that government failed to prove that principal committed the underlying crime); United States v. McCoy, 539 F.2d 1050, 1064 (5th Cir.1976) (existence of crime is an element of the offense of aiding and abetting), cert. denied, 431 U.S. 919, 97 S.Ct. 2185, 53 L.Ed.2d 230 (1977). It is not a prerequisite to a conviction for aiding and abetting, however, that the principal be tried and convicted, or even that the principal be identified. United States v. Barnett, 667 F.2d 835, 841 (9th Cir.1982) (citing United States v. Provenzano, 334 F.2d 678, 691 (3d Cir.), cert. denied, 379 U.S. 947, 85 S.Ct. 440, 13 L.Ed.2d 544 (1964)); see also United States v. Valenzuela, 596 F.2d 1361, 1363 n. 2 (9th Cir.) (one can aid and abet an unindicted principal), cert. denied, 444 U.S. 865, 100 S.Ct. 136, 62 L.Ed.2d 88 (1979). In fact, an aider and abettor's conviction may be upheld even though the principal is acquitted of the underlying offense. See Standefer v. United States, 447 U.S. 10, 20, 100 S.Ct. 1999, 2006, 64 L.Ed.2d 689 (1980); United States v. Bryan, 483 F.2d 88, 92-94 (3d Cir.1973) (en banc ); United States v. Azadian, 436 F.2d 81, 82-83 (9th Cir.1971). In such cases, however, it is clear that although the principal was not convicted, the underlying offense was committed. See Standefer, 447 U.S. at 13 n. 6, 100 S.Ct. at 2002 n. 6; Bryan, 483 F.2d at 93; Azadian, 436 F.2d at 82.
                United States v. Mann, 811 F.2d 495, 497 (9th Cir. 1987) (emphasis added).

                So Dotcom can be convicted of aiding and abetting even if the direct infringer (the "principal") is not identified. Keep in mind too that there's the charges for conspiracy and direct infringement. It's not only aiding and abetting. Plus there's the money laundering (but I think that hinges on the copyright claims).

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                • icon
                  That One Guy (profile), 13 Oct 2014 @ 5:04pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Almost.

                  The part you bolded seems to suggest that they don't have to convict(or even identify, which is all sorts of screwed up) the one who committed the 'original' crime, however this part:

                  'Nonetheless, as an element of the offense of aiding and abetting, the government must prove that someone committed the underlying crime.'

                  Would seem to be saying that they still have to prove that the original crime occurred.

                  They can't just say 'He's accused of aiding and abetting criminal copyright infringement', and try him for that, without first proving that the original crime of 'criminal copyright infringement' actually took place.

                  As for the money laundering charges, those are completely ridiculous, and honestly, seem to be added on for the sole purpose of meeting the requirements of extradition, since simple copyright infringement wouldn't be enough for him to be extradited for. If paying your bills counts as money laundering, a whole slew of people and companies are in trouble, and not just the shady types.

                  Run a company and get charged with some minor accusation, valid or not? Did you pay the bills related to your business during that same time period? Bam, instant money laundering charges.

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                    antidirt (profile), 13 Oct 2014 @ 5:14pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Would seem to be saying that they still have to prove that the original crime occurred.

                    They can't just say 'He's accused of aiding and abetting criminal copyright infringement', and try him for that, without first proving that the original crime of 'criminal copyright infringement' actually took place.


                    Correct. They need to prove that someone committed criminal infringement for Dotcom et al. to be guilty for aiding and abetting that crime. It seems like that's not hard to do assuming the server logs spell out what files were uploaded/downloaded. The records they kept for their affiliate program should do nicely.

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                    • icon
                      Christopher (profile), 13 Oct 2014 @ 5:35pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Plus, they have to prove that he KNEW that the person was committing a crime and did not ban/remove the things in question when he was informed.

                      Which Kim Dotcom did and which the DMCA SPECIFCALLY said was all he had to do. Remove the things when informed of them, NOT proactively screen for them, which the people writing the DMCA realized was IMPOSSIBLE to do.

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        • icon
          RonKaminsky (profile), 13 Oct 2014 @ 1:28pm

          Re: Re: Re:

          Wow. Let's see now, when combine your post with "statements" from the **AA's reports, what conclusion we come up with.

          (1) A large percentage of Internet communications are copyright infringement using P2P software.
          (2) Anyone using P2P software illegally uploads in order to gain profit (as in, getting other parts of the file from others).
          (3) Copyright infringement for profit is criminal.
          (4) This criminal infringement is being willfully aided by Internet providers in general
          (5) All Internet providers are also criminals, so we should shut them all down.

          There now. Now the **AA's can go to sleep and rest peacefully, knowing that their bad dream of the Internet has been duly erased from reality... in order to serve Justice, of course.

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          • icon
            jupiterkansas (profile), 13 Oct 2014 @ 1:51pm

            Re: Re: Re: Re:

            They don't want the internet shut down. They want it handed over to them so they can monitor and control it, just like they do the airwaves.

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    • identicon
      Anonymous Coward, 13 Oct 2014 @ 9:10am

      Re:

      the Government has exercised all its might in a concerted, calculated effort to foreclose any opportunity for the defendants to challenge the allegations against them...

      I laughed at this. All he has to do is come to the US if he wants his day in court. But in truth- for the reasons above- he'll never show go his own free will.

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        antidirt (profile), 13 Oct 2014 @ 9:21am

        Re: Re:

        I laughed at this. All he has to do is come to the US if he wants his day in court. But in truth- for the reasons above- he'll never show go his own free will.

        Yeah, the government's trying so hard to prevent Dotcom from having his day in court. LOL!

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        • identicon
          Anonymous Coward, 13 Oct 2014 @ 10:05am

          Re: Re: Re:

          He did actually offer to fly to the US as long as he was going to get a fair trial. Unfortunately the DOJ denied him justice so he didn't bother flying!

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          • icon
            Josh in CharlotteNC (profile), 13 Oct 2014 @ 10:16am

            Re: Re: Re: Re:

            In the unlikely event the DOJ has to give him a fair trial, the TSA has been instructed to put him on the no-fly list so he can't show up to defend himself.

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          • identicon
            Anonymous Coward, 13 Oct 2014 @ 12:10pm

            Re: Re: Re: Re:

            What??? The DoJ told Dotcom, "don't come because we're not going to give you a fair trial". I think your tinfoil hat is on a bit too tight and is interfering with your thought process... assuming you have one.

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            • icon
              Christopher (profile), 13 Oct 2014 @ 5:37pm

              Re: Re: Re: Re: Re:

              Anonymous, look at what they have been doing..... then try to tell me that they did not basically say that by their actions.
              They have been playing fast and loose with what the law actually allows from day one, second one, MILLI-SECOND one.

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            • identicon
              Anonymous Coward, 13 Oct 2014 @ 10:45pm

              Re: Re: Re: Re: Re:

              Its not a tin foil hat.

              KDC offered to fly to the US under certain conditions. He wanted to make bail and he wanted access to his funds so that he could mount a defence. The DOJ flat out denied both, so he fought extradition.

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      • icon
        John Fenderson (profile), 13 Oct 2014 @ 9:21am

        Re: Re:

        He doesn't want to come to the US because he doesn't want to appear before a kangaroo court. He has almost no chance for actual justice in the US.

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      • identicon
        Anonymous Coward, 13 Oct 2014 @ 10:05am

        Re: Re:

        Seriously! It's like when sheep refuse to walk into a wolf's den to argue their innocence of being dinner...

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      • identicon
        Anonymous Coward, 14 Oct 2014 @ 4:09am

        Re: Re:

        Just like snowden just has to come to the states to be treated fairly right.

        We should obviously take the US government at their word they will act lawfully and ignore their constant unlawful actions

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    • icon
      jupiterkansas (profile), 13 Oct 2014 @ 9:13am

      Re:

      Will you admit that you are anti-piracy? Yes?

      Does it matter either way? No!

      Why do people come here and try to out this website as having some sort of secret infringement agenda, as if unveiling it's nefarious plans would make any sort of difference? Is it a way to simply discredit everything TechDirt says because it's officially biased?

      And why, after making valid points, do you insist on finishing up with unrelated slander and name calling, as if making a valid point wasn't victory enough.

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        antidirt (profile), 13 Oct 2014 @ 9:39am

        Re: Re:

        I am anti-piracy. Cat's out of the bag now!

        Mike's bias is pretty extreme, so it calls into question everything he posts on copyright. There's no balance to it. It's lopsided.

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        • identicon
          Anonymous Coward, 13 Oct 2014 @ 9:44am

          Re: Re: Re:

          No, the current copyright system is so broken that it needs torching. Completely. Because it is not at all fit for its intended purpose. That's an extreme position - it's also the only correct response.

          There is no reflection on the fact that the current laws in the US are....interesting, shall we say, when it comes to actual issues.

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        • identicon
          Anonymous Coward, 13 Oct 2014 @ 10:09am

          Re: Re: Re:

          "Mike's bias is pretty extreme"

          Aren't you the one who is always calling Mike out for not making a firm opinion on any of the copyright stories he writes?

          Now you are saying he has an extreme bias.

          The problem you have is that this is his blog, so even if he was pro-piracy (if there really can be such a thing) and had an extreme bias towards it (which he doesn't) it would not matter.

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            antidirt (profile), 13 Oct 2014 @ 10:29am

            Re: Re: Re: Re:

            Aren't you the one who is always calling Mike out for not making a firm opinion on any of the copyright stories he writes?

            Now you are saying he has an extreme bias.


            The two aren't mutually exclusive. He won't state a firm opinion on whether he thinks authors should have any rights. The bias is where he regurgitates Dotcom's arguments without a hint of skepticism, even though some of these arguments are pretty dumb. Likewise, he's super-skeptical of any report that says anything good about copyright or bad about infringement, and he's not at all skeptical when it's something good about infringement or bad about copyright.

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            • identicon
              Anonymous Coward, 13 Oct 2014 @ 10:42am

              Re: Re: Re: Re: Re:

              "He won't state a firm opinion on whether he thinks authors should have any rights."

              Actually, boy, he's stated numerous times that copyright, as originally intended, is a good thing.
              It's the ridiculous extensions instigated by corporations like Disney that he (and sane people) are against.
              Your viewpoint on the matter is crystal-clear and your jacket with extra-long arms is ready.

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            • identicon
              Anonymous Coward, 13 Oct 2014 @ 10:50pm

              Re: Re: Re: Re: Re:

              Like everyone has pointed out to you. He has stated a firm opinion, you are obviously too dense to see it.

              Anyway like I previously said. This is his blog, if you don't like it, don't read it!

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          • icon
            tqk (profile), 13 Oct 2014 @ 2:46pm

            Re: Re: Re: Re:

            ... so even if he was pro-piracy (if there really can be such a thing) ...

            Funny thing, the English language. "Are you anti-abortion?" "No, I'm pro-life."

            I wouldn't consider myself "pro-piracy", but I do despise what's been happening on the copyright infringement battlefield. Disney shouldn't even have many of the copyrights that are recognized to be theirs. How the hell do they get away with copyrighting centuries old fairy tales? I often wonder what the brothers Grimm's heirs think about this nonsense.

            Then there's Canada which recognized (assumed!) infringement will happen, so they slapped a levy (tax!) on blank CDs. All blank CDs, assuming all blank CDs would be used for infringement and assuming all buyers of blank CDs guilty before the fact! Does that stop the Canadian gov't from attempting to up the ante criminalizing copyright infringement? Not bloody likely. Disney has money, politicians want money, and the resultant mess is a foregone conclusion. Screw you, Canadian taxpayer. Disney has spoken!

            Damn, I wish you guys would fix your broken gov't (and this issue is nothing compared to (eg.) Kissinger vs. Cambodia).

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        • identicon
          Anonymous Coward, 13 Oct 2014 @ 10:10am

          Re: Re: Re:

          That you perceive that Mike's bias is pretty extreme just reveals how extreme your biases are.

          A crazy person will think that sane people are crazy since they don't think like he does. It doesn't actually make them crazy.

          If you've at all examined US laws and their enforcement to the extent you purport to and haven't become significantly disturbed by the amount of injustice that is perpetuated on behalf of a corrupt government/justice system and large corporations, you're either blinded by bias, sociopathic, or your income depends on your intentional ignorance of the injustice and corruption.

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        • identicon
          Anonymous Coward, 13 Oct 2014 @ 10:37am

          Re: Re: Re:

          Anything ever posted should be called in to question because everyone has a bias. Generally I am against piracy but I do think Mike is correct on most of his views of Copyright. From the things I have read from him for many years, I believe he is also against piracy. We live in a society that locks up knowledge and creativity under copyright and it is at a very sad state. My view is that we are currently in the dark ages of the internet world where the creativity is destroyed due to fear of lawsuits. Or the rich suck the life out of young creative talent making millions off them and leaving them little to nothing in return.

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          • icon
            Christopher (profile), 13 Oct 2014 @ 5:39pm

            Re: Re: Re: Re:

            There is no such thing as piracy. Piracy is done on the oceans and involves keelhauling and death of actual persons.

            This is SHARING, that thing that we have been EXTOLLED by our parents and PUNISHED for NOT doing by our parents for MILLENNIUMS!
            Get the terms right, then we can talk about everything else.

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        • icon
          jupiterkansas (profile), 13 Oct 2014 @ 10:58am

          Re: Re: Re:

          Someone might consider your bias to be equally extreme, and you stating your position as "anti-piracy" doesn't make any difference.

          While I've seen several commenters calling for the abolishing of all copyright, all I have ever seen from TechDirt is acknowledging that copyright law is in need of very serious reform, and it makes a pretty good case as to why.

          There's a big difference between wanting laws to change and wanting to break the law. Techdirt wants the former but your futile attempts to peg it as "pro-piracy" is just a feeble (and pointless) attempt to make it look like it advocates the latter.

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            antidirt (profile), 13 Oct 2014 @ 11:06am

            Re: Re: Re: Re:

            Someone might consider your bias to be equally extreme, and you stating your position as "anti-piracy" doesn't make any difference.

            While I've seen several commenters calling for the abolishing of all copyright, all I have ever seen from TechDirt is acknowledging that copyright law is in need of very serious reform, and it makes a pretty good case as to why.

            There's a big difference between wanting laws to change and wanting to break the law. Techdirt wants the former but your futile attempts to peg it as "pro-piracy" is just a feeble (and pointless) attempt to make it look like it advocates the latter.


            Well, I'm certainly biased pro-copyright. I freely admit that. That said, I try and call them like I see them--even if it means agreeing with the anti-copyright crowd. I think copyright brings out a lot of polar thinking. There are extremists in both camps. I think Mike is in the extreme anti-copyright camp. I think I'm closer to the middle, but definitely on the pro-copyright side of the line. I tend to think that both sides of the debate make good points. Mike, as far as I can tell, only thinks that his side makes good points.

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            • icon
              jupiterkansas (profile), 13 Oct 2014 @ 12:25pm

              Re: Re: Re: Re: Re:

              There are valid points on either side, but TechDirt's position is that only one side is ever given voice - at least when it comes to lawmakers - the side with a vested financial interest that's using their financial might to shape laws and opinions.

              There is a healthier debate for and against current copyright law at TechDirt than anywhere else I've found, and that debate is stimulated by taking a minority view, which happens to be asking what is ultimately best for culture, progress, and the people, and not just the bottom line of some industry.

              And TechDirt only advocates this view because of the piss-poor reaction these industries have had to technological progress. I doubt, like most people, that TechDirt cared much about copyright until the internet made it everyone's problem.

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            • icon
              Niall (profile), 14 Oct 2014 @ 4:29am

              Re: Re: Re: Re: Re:

              I also notice the lack of debate even allowed on pro-Imaginary Property websites - they seem to assume that any dilution of their bawking would be disasterous. At least Mike actively encourages debate on here, and people are willing to actually cite examples of anti-IP-abuse, either in the form of legal excesses or studies.

              All the pro-stifling-creativity do is bawk "money! piracy! end of the world! the sky is falling!", while trying to justify legal shenanigans, outright illegal actions by major corporations and government, or moral outrages perpatrated on innocent printers and dead grandmothers.

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          • icon
            Christopher (profile), 13 Oct 2014 @ 2:26pm

            Re: Re: Re: Re:

            Except that some of these laws are oversteps and overreaches that conflict with other laws and rights.... so, when that is the case, breaking the law is not just legally justified, it is morally justified as well.

            "Da law is da law" is the argument that mouth-breathing retards use who have absolutely no critical thinking skills.
            And yes, that seven letter r-word is the correct one to use in this case.... it might even be KIND to those people.

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    • identicon
      Anonymous Coward, 13 Oct 2014 @ 9:57am

      Re:

      Dotcom argues that there is no such thing as aiding and abetting criminal copyright infringement because that language was taken out of the Copyright Act: "But that is no conceivable basis for criminal prosecution, much less resulting forfeiture. Congress specifically removed from the Copyright Act language about aiding and abetting criminal infringement." The obvious response to this is that 18 U.S.C. 2 criminalizes aiding and abetting criminal copyright infringement--and that's the statute that Dotcom is charged under.

      But, of course, you're making the same mistake the DOJ is making in its arguments. If Dotcom is engaged in aiding and abetting criminal copyright infringement, who's doing the criminal copyright infringement? It would have to be the people who are actually infringing, but none of them are charged with *criminal* copyright infringement because they can't be. They don't come even remotely close to the standards of *criminal* copyright infringement.

      The government's case hinges on mixing and matching. The users commit infringement. Dotcom aids and abets for profit. But with that you don't have enough to actually plead criminal copyright infringement. You're taking pieces from the end users and pieces from Dotcom and pretending you can glue them together in a hodge podge, and no one takes the time to sort out who's actually responsible for what actions.

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        antidirt (profile), 13 Oct 2014 @ 10:14am

        Re: Re:

        But, of course, you're making the same mistake the DOJ is making in its arguments. If Dotcom is engaged in aiding and abetting criminal copyright infringement, who's doing the criminal copyright infringement? It would have to be the people who are actually infringing, but none of them are charged with *criminal* copyright infringement because they can't be. They don't come even remotely close to the standards of *criminal* copyright infringement.

        You're conflating two separate issues. I'm talking about whether aiding and abetting criminal infringement is a crime. Dotcom argues it's not; I'm saying it is. Whether Dotcom is guilty of aiding and abetting is a separate issue. I mentioned that Dotcom makes good and bad arguments, and this is one of the good ones. What works were infringed? Who are the direct infringers. We haven't seen all of the government's evidence yet, and maybe they're going to use the server records to show that Movie X was download Y times in the U.S. from the servers in Virginia. I dunno. My understanding is it's not necessary to charge others with these crimes, but the government still needs to show these crimes occurred or else Dotcom can't be shown to have aided and abetted them.

        The government's case hinges on mixing and matching. The users commit infringement. Dotcom aids and abets for profit. But with that you don't have enough to actually plead criminal copyright infringement. You're taking pieces from the end users and pieces from Dotcom and pretending you can glue them together in a hodge podge, and no one takes the time to sort out who's actually responsible for what actions.

        The government has to show that it was "for purposes of commercial advantage or private financial gain," which I think can be the gain of not paying for it (but I'm spacing on how that section is interpreted at the moment). Or it can show "reproduction or distribution, including by electronic means, during any 180–day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000." That part turns on the retail value of the works infringed. I don't think the government has to show that Dotcom did it for profit. I think it's enough that the third-parties he aided and abetted either gained from it or infringed works of a certain retail value. That Dotcom profited from it would go to damages (or forfeiture/restitution), not liability, IMO.

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      • icon
        Rikuo (profile), 13 Oct 2014 @ 10:18am

        Re: Re:

        IIRC, that was how the Pirate Bay trial ended, with the four defendants convicted of aiding in copyright infringement. I was always pissed off that not once was there anyone even charged with the actual infringement - it's sorta like saying Person X is guilty of aiding a bank robbery by driving the getaway car, but not charging anyone with doing the actual robbery itself. So unless I'm wrong (correct me if I am) the TPB guys were charged and convicted of aiding a crime that was never legally established to have occurred.

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      identicon
      Anonymous Coward, 13 Oct 2014 @ 10:27am

      Re:

      I'm sorry Anti-dirt, but your post is 100% correct. For this, we here at Techdirt must report and censor your comment.
      Have a nice day.

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      • identicon
        Anonymous Coward, 13 Oct 2014 @ 10:32am

        Re: Re:

        I'm sorry, boy, but your post re: Anti-Dirt is 0% correct, For this we at must report and censor your inane comment.

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    • identicon
      Just Another Anonymous Troll, 13 Oct 2014 @ 11:03am

      Re:

      Soooooo... we shouldn't be suspicious of the government's argument, despite the many bad points they make and instead be suspicious of Dotcom for the few bad points he makes? Just because you pull out two arguments that aren't so good doesn't make the whole argument any less valid. You have made some good, non-trollish points in the past. Does all your other crap devalue those points?

      Also, does it not occur to you that he is being perfectly logical in employing illogical arguments against an illogical opponent? He's probably just going for a "quantity over quality" strategy in hopes that if he makes a huge number of arguments at least some will be believed or correct. Why make a few arguments when you can make a lot?

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        antidirt (profile), 13 Oct 2014 @ 11:09am

        Re: Re:

        Soooooo... we shouldn't be suspicious of the government's argument, despite the many bad points they make and instead be suspicious of Dotcom for the few bad points he makes? Just because you pull out two arguments that aren't so good doesn't make the whole argument any less valid. You have made some good, non-trollish points in the past. Does all your other crap devalue those points?

        I'm skeptical of the arguments made by both sides. But that's just me. As far as I can tell, Mike turns off his skepticism when it comes to Dotcom's arguments. This comports with his bias generally. Any study that says anything "good" about copyright is summarily "debunked," while studies that show copyright is "bad" are repeated without question. It's pretty silly, IMO.

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    • identicon
      RD, 13 Oct 2014 @ 1:42pm

      Re:

      "Why are you so skeptical of the government's position, but not at all skeptical of Dotcom's position? This is a double standard--and further evidence that you're pro-piracy, by the way."

      If we were *not* skeptical of the government's position, then why bother having any judicial trials???

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    • identicon
      Fred Face, 14 Oct 2014 @ 10:25am

      Re:

      This is total cobblers (to use a well-worn UK expression (and a touch of the trolls to boot). There has been no court case and nobody has been found guilty of anything, so why should any assets be forfeited or frozen? Just yet another part of the giant USA conspiracy machine.

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    • identicon
      Anonymous Coward, 14 Oct 2014 @ 10:47am

      Re:

      If the US already has possession/control of Dotcoms assets, property etc. then they would have no reason to file a forfeiture claim being as they already have possession/control etc. to do what they like with it.

      The fact that the US have filed for a forfeiture claim shows that they do not have the right to control/possession of the assets, property etc. in question to do what they like with.

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      • identicon
        Anonymous Coward, 14 Oct 2014 @ 11:03am

        Re: Re:

        Just a general comment, and nothing to do with the merits. Under US law the initial court order merely allows seizure of assets. Title does not transfer, only possession. The purpose of a forfeiture proceeding is to secure a court order under which title is transferred.

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        • identicon
          Anonymous Coward, 14 Oct 2014 @ 11:29am

          Re: Re: Re:

          Then until a US judge fully grants the forfeiture claim the US does not have complete full control/possession of all seized assets, property etc. Only that the US has at this moment stopped the owner from gaining access to their own assets, property etc.

          reply to this | link to this | view in chronology ]

      • icon
        antidirt (profile), 14 Oct 2014 @ 11:56am

        Re: Re:

        If the US already has possession/control of Dotcoms assets, property etc. then they would have no reason to file a forfeiture claim being as they already have possession/control etc. to do what they like with it.

        The fact that the US have filed for a forfeiture claim shows that they do not have the right to control/possession of the assets, property etc. in question to do what they like with.


        It's a two-step process. First the government demonstrates to the court that there's probable cause to seize the property (for example, if the property is the fruit or instrumentality of a crime). The court issues a warrant and takes either actual or constructive possession of the property. Then the government demonstrates to the court that, by a preponderance of the evidence, the property which has already been seized should also be forfeited. The seizure is temporary. The forfeiture is permanent. Dotcom's assets were already seized when the court issued the warrants (which the foreign jurisdictions enforced). The issue now is whether Dotcom should lose those assets permanently.

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        • identicon
          Anonymous Coward, 14 Oct 2014 @ 12:07pm

          Re: Re: Re:

          The forfeiture of those assets, property etc. can only occur when Dotcom has been convicted and found guilty and not before a conviction.

          reply to this | link to this | view in chronology ]

          • icon
            antidirt (profile), 14 Oct 2014 @ 12:19pm

            Re: Re: Re: Re:

            The forfeiture of those assets, property etc. can only occur when Dotcom has been convicted and found guilty and not before a conviction.

            Thanks for the comment. There's two types of forfeitures, criminal and civil. Criminal forfeiture, which is what I think you're thinking of, happens after conviction. Civil forfeiture, which is what this is, can happen before conviction. The government just has to show that the property is forfeitable by a preponderance of the evidence.

            reply to this | link to this | view in chronology ]

            • icon
              That One Guy (profile), 14 Oct 2014 @ 3:17pm

              Re: Re: Re: Re: Re:

              In that case they seem to be wanting it both ways. They're charging him with criminal copyright infringement(or 'aiding and abetting' thereof), yet trying to seize the assets as though it was a civil case.

              Also, my memory might be off, but I thought it was impossible to have a civil case against someone in another country, for that to work the charges must be criminal. As such, given he is not a US citizen, the charges, and the case attached, would have to be criminal, which would mean they'd be forced into criminal forfeiture laws/rules, not civil, making seizing his assets before he's found guilty a violation of the laws.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 14 Oct 2014 @ 3:29pm

                Re: Re: Re: Re: Re: Re:

                In NZ the prosecution originally filed to have the assets, property etc. seized on criminal law and now that the duration of the time limit of seizure ran out the prosecution then filed to extend the seizure but on civil seizure NOT criminal seizure to which Dotcoms defence team then filed a motion to appeal stating that the seizure could only be extended on the grounds to which was originally filed i.e. criminal NOT on grounds of civil and therefore if its not criminal then the criminal seizure must be dismissed. The outcome of all this is still pending i believe.

                reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Oct 2014 @ 8:45am

    New Mafiaa

    The protection schemes are now using our government as the enforcer. Too bad there is so much collusion with industry for the true archetecs of this farce to be charges

    reply to this | link to this | view in chronology ]

  • identicon
    Kevin, 13 Oct 2014 @ 8:51am

    I wonder if the issue really is that the government believes someone (Wikileaks?) stored something embarrassing on Mega and they intend to stop at nothing to suppress it. Tin hat and all, but given all the other revelations it would not surprise me at all...

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 13 Oct 2014 @ 8:55am

      Re:

      nope.
      Look at where the former DOJ person who started this clusterf works now.
      The DOJ is now in a wild rush to save face and find anything to leverage a win against someone they can't threaten into taking a deal like they normally do.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Oct 2014 @ 9:17am

        Re: Re:

        You know "saving face" is a very fascistic concept. Not only do you have the whole "Can't look weak before the proles or have the elephant in the room exposed." but it gives them the perfect weapon. Threat of loss of face is the perfect tool for those who fall out of favor too. Even if they are innocent (despite your web of laws making it very hard to impossible to do so) it still works, as you can fabricate it to discredit your critics.

        reply to this | link to this | view in chronology ]

        • icon
          That Anonymous Coward (profile), 13 Oct 2014 @ 11:34am

          Re: Re: Re:

          Well they might not advance if they don't get enough wins.
          They might even destroy their careers losing a high profile case.

          It isn't just DOJ, but the legal system in general.
          Look at people cleared by DNA after decades of being railroaded to prison, and the current prosecutor threatens to try them again or other stunts to make sure they still are perceived as being guilty.
          Protecting how people see the system, trumps actual justice.

          reply to this | link to this | view in chronology ]

          • icon
            Christopher (profile), 13 Oct 2014 @ 5:53pm

            Re: Re: Re: Re:

            Yep, just cannot say that "Hey, the judicial got it wrong and gets it wrong more often than not!" along with the whole "There is a punking lot on the books that should not be illegal today and is religious/other morality trying to be forced on people through fiat of law when they are harming no one but themselves and usually not even themselves!"

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  • identicon
    Anonymous Coward, 13 Oct 2014 @ 9:00am

    How else is the government supposed to pay for the NSA? They need his assest more than he does to keep spying on you.

    /s

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Oct 2014 @ 9:43am

    It's an end-around tactic

    The DoJ has stepped in it, and they know it. If they actually thought they had a solid case, they could have and should have spent years preparing it: after all, no persons were in any kind of danger, so what's the rush? They could have and should have had evidence stacked to the rafters, in a pile so massive and overwhelming that even if 90% was thrown out on various grounds, they'd still have enough to make their case.

    But they didn't do that. They leapt into this, grandstanding and showboating, taking advantage of Dotcom's celebrity and trying to score PR points instead of actually -- and I know this is a novel concept for the DoJ -- trying to achieve something vaguely like "justice". (Maybe they read the sign over the door more often.)

    And now they're floundering. They've realized that they don't have a case and that if this goes to trial, they're going to get their asses kicked...which will not sit well with their overlords in the MAFIAA.

    So they have no intention of going to trial. They don't need to, they don't want to, and they're going to make it as difficult as possible for Dotcom to force the issue by stripping as many assets as they can. (Watch: their next move will be to go after his current assets.) And then they do...NOTHING. They won't need to, and they won't want to, because they can string this out for the next 10, 20, 30 years and wait for the principals to die off...neatly tying off all the loose ends.

    This has devolved into a face-saving exercise combined with punitive retribution against Dotcom for not being an obedient victim and meekly agreeing to whatever bullshit charges were thrown at him. They tried to nail his hide to the wall, to make an example out of him, and it didn't work. Now it's just cleanup.

    reply to this | link to this | view in chronology ]

    • icon
      Christopher (profile), 13 Oct 2014 @ 5:55pm

      Re: It's an end-around tactic

      Well, to play Devil's Advocate, part of that was because of the SoL laws that limit how much time after learning of a crime the cops have to prosecute it.
      I believe for criminal copyright infringement it is something like 5 years.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Oct 2014 @ 10:05am

    USA sucks.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Oct 2014 @ 4:15am

      Re:

      I would argue it is just their criminal out of control government at this point we should be hating not the citizens caught in that mess.

      reply to this | link to this | view in chronology ]

  • icon
    ShivaFang (profile), 13 Oct 2014 @ 10:47am

    If the Government wins this case - it could set a precedent for convicting people for crimes that are made up on the fly.

    That would be very, very bad for personal liberties.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Oct 2014 @ 11:33am

    This sounds like a job for Captain Justice, Guardian of the Realm and Leader of the Resistance.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Oct 2014 @ 11:42am

    The Dotcom case is hardly unique. Prosecutors all over the world have found themselves in a similar predicament, having acted on pressure from Big Media without fully understanding the situation.

    For instance, Bittorrent sites get busted all the time without authorities having any idea what Bittorrent actually is -- other than what Hollywood's lobby tells them, using carefully-crafted accusations that heavily distort what Bittorrent actually is and does. By the time prosecutors realize that no laws were actually broken, the case is too far advanced to stop it, and they are forced by tradition and custom (as well as ego) to push ahead with the prosecution full throttle.

    Even though the DOJ has no case against Megaupload -and they probably know it by now- they will be forced to 'save face' by continuing their legal scorched-earth tactics to the bitter end. Sadly, That's how the system works. The three words you will never hear from the government are "We were wrong." Instead, they'll fight tooth and nail to try to justify their wrongful actions even when they know they have almost no chance of winning, since, let's face it, careers are on the line and it's not their own money they're using.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Oct 2014 @ 8:16pm

      Re:

      I know of an instance where the prosecutor and the police expert witness came to the defence of the accused and brought about the "correction" by the courts of a policeman.

      A law was technically broken, under which, if you attempt to plead innocent then the full weight is brought against. In this particular case, if the event occurs then you are automatically guilty. However, there is a twist, if you plead guilty, it is required that the court find out if there is any extenuating reasons for the event, at which point the minimum fine can be administered and nothing put against your record.

      The persecutor and police expert witness were both so annoyed by the actions of the policeman who brought the charges, that they did everything they could to thwart the charges (including I believe bringing up the circumstances to the Judge).

      So there are times when the honourable people are available and Justice is rightly served. But it can be a rare event.

      reply to this | link to this | view in chronology ]

  • icon
    antidirt (profile), 13 Oct 2014 @ 11:48am

    Here's a link to the forfeiture complaint: http://ia801402.us.archive.org/22/items/gov.uscourts.vaed.307658/gov.uscourts.vaed.307658.1.0.pdf

    It appears the government is tying the forfeiture to the direct infringement and conspiracy to commit direct infringement charges, not the aiding and abetting charge: "As set forth above and as incorporated in the Superseding Indictment, the Mega Conspiracy wilfully infringed and conspired to wilfully infringe copyrighted works when, for purposes of commercial advantage and private financial gain, it took numerous copyrighted works, including works it knew were being prepared for commercial distribution, and made them available on a publicly accessible computer network."

    As far as which works this includes, the superseding indictment mentions: (1) a 50-cent song, (2) the works scraped from YouTube, (3) Alcohol 120 software, (4) "musical recordings by the artist Armin van Buuren," (5) loads of files from specific users, (6) a Soulja Boy video, (7) the Sopranos, (7) Grand Archives songs, (8) Louis Armstrong song, (8) "many infringing copies of copyrighted motion pictures, including Ocean's Thirteen, Ratatouille, and Evan Almighty," (9) BBC Earth, (10) My Blueberry Nights, (10) Dan in Real Life, (11) Taken, etc.

    So it appears that the government has mentioned several works by name and is prepared to name several more. Source: http://www.washingtonpost.com/wp-srv/business/documents/megaupload-indictment.pdf

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Oct 2014 @ 1:03pm

      Re:

      There is NO mention whatsoever in that forfeiture complaint that the (alleged) copyright infringement took place within the US.

      reply to this | link to this | view in chronology ]

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        icon
        antidirt (profile), 13 Oct 2014 @ 1:44pm

        Re: Re:

        There is NO mention whatsoever in that forfeiture complaint that the (alleged) copyright infringement took place within the US.

        The complaint references the indictment. The indictment discusses the servers in Virginia and elsewhere in the U.S. I'd have to look up the case law on extraterritoriality to say anything intelligent about it.

        reply to this | link to this | view in chronology ]

    • icon
      Rikuo (profile), 13 Oct 2014 @ 1:14pm

      Re:

      "On or about August 31,2006, VAN DER KOLK sent an e-mail to an
      associate entitled "lol". Attached to the message was a screenshot of a Megaupload.com file
      download page for the file "Alcohol 120 1.9.5 3105complete.rar" with a description of "Alcohol
      120, con crack!!!! By ChaOtiX!". The copyrighted software "Alcohol 120" is a CD/DVD
      burning software program sold by www.alcohol-soft.com."

      Mere file-names are not enough in and of themselves to constitute guilt. What if one of the files was named "Hot_Incest_Illegal_Child_Pron.avi"?
      All that paragraph mentions is a file name and a description by the uploader. It mentions nothing about evidence showing it to be what it is purported to be.
      The same goes for all the other files talked about in the pdf. I'm seeing file names only and no evidence that they are what they are actually named.

      reply to this | link to this | view in chronology ]

      • icon
        Josh in CharlotteNC (profile), 13 Oct 2014 @ 1:32pm

        Re: Re:

        I think that's a mostly specious argument. Even if there are some bad file names, most are going to be what they claim to be.

        A much better argument is that it was the users of Mega that uploaded and shared those files. If it was the users, the Mega is just a service provider, and since they took down links in accordance with the DMCA, they're safe.

        If the government can actually show that Kim or other Mega executives uploaded those files, then they're in the same position of Grooveshark. However, it's been almost 3 years since the raid, and the if the government had evidence, they would have said so long before now, just to shut the internet up. That they haven't is telling.

        reply to this | link to this | view in chronology ]

        • icon
          RonKaminsky (profile), 13 Oct 2014 @ 1:48pm

          Re: Re: Re:

          > Even if there are some bad file names, most are going to be what they claim to be.

          Given that the content industries hire companies to produce "red herring" files, this argument seems a bit weak. Certainly weak if we're talking about a criminal case.

          reply to this | link to this | view in chronology ]

          • icon
            tqk (profile), 13 Oct 2014 @ 3:53pm

            Re: Re: Re: Re:

            > > Even if there are some bad file names, most are going to be what they claim to be.
            >
            > Given that the content industries hire companies to produce "red herring" files ...

            You can add to that the BS manner in which MS Windows allows files to be named. There's plenty of malware which rely on this sloppiness. That attachment in email that says it's kitten pix? Win* will happily run it as an executable anyway regardless of its filename. MS decided years ago that hiding file extensions would be a good feature for their users. I agree. Why they used them in the first place is a mystery. Unfortunately, all they did was hide them, not eliminate them nor the functionality.

            Ergo, "KittenPix.exe.jpg" --> faceplant.

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            • identicon
              Anonymous Coward, 14 Oct 2014 @ 12:27pm

              Re: Re: Re: Re: Re:

              Shouldn't it be "KittenPix.jpg.exe"? That way the user would see "Kittenpix.jpg" and assume it's an image, not an executable.

              Of course, if you have extensions hidden and suddenly see one, plus it has an executable icon and under type says "Executable File" I think you should figure it out. Then again, I turn on file extensions because I like to change them (e.g. file.dll.old) when I want to for things like ENB and other game mods.

              reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Oct 2014 @ 1:34pm

        Re: Re:

        I cannot find any mention in the forfeiture complaint of a an actual named user living in the US who shared files. All it mentions is that people uploaded to Megaupload or downloaded from Megaupload but it does not state an actual named user that did so within the US who did it. For them to prove that someone within the US shared copyright files they will have to give specific detail and thus they haven't done so only a generalisation.

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          icon
          antidirt (profile), 13 Oct 2014 @ 1:49pm

          Re: Re: Re:

          I cannot find any mention in the forfeiture complaint of a an actual named user living in the US who shared files. All it mentions is that people uploaded to Megaupload or downloaded from Megaupload but it does not state an actual named user that did so within the US who did it. For them to prove that someone within the US shared copyright files they will have to give specific detail and thus they haven't done so only a generalisation.

          The specific "overt acts" are listed in the indictment, not the complaint. I'm not sure exactly how extraterritoriality works. But I think the government is hinging jurisdiction on the fact that some of the servers were located in the U.S.

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        icon
        antidirt (profile), 13 Oct 2014 @ 1:46pm

        Re: Re:

        Mere file-names are not enough in and of themselves to constitute guilt. What if one of the files was named "Hot_Incest_Illegal_Child_Pron.avi"?
        All that paragraph mentions is a file name and a description by the uploader. It mentions nothing about evidence showing it to be what it is purported to be.
        The same goes for all the other files talked about in the pdf. I'm seeing file names only and no evidence that they are what they are actually named.


        They have the servers, right? We don't know all the evidence yet since it's just an indictment. Perhaps the servers contain the actual file and records of when/where it was uploaded/downloaded.

        reply to this | link to this | view in chronology ]

        • identicon
          RD, 13 Oct 2014 @ 2:56pm

          Re: Re: Re:

          "They have the servers, right? We don't know all the evidence yet since it's just an indictment. Perhaps the servers contain the actual file and records of when/where it was uploaded/downloaded."

          Yes, we dont know, and that is why we have a TRIAL to determine that. But we dont have a trial, and there is ZERO movement to get one going. But thats OK with you, as long as its your beloved All-Powerful Government doing the accusing, then accusation is enough.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 13 Oct 2014 @ 3:05pm

          Re: Re: Re:

          So then the US prosecution is just assuming that being as they have not presented any specific evidence of when/where uploaded/download in the indictment that you stated.

          reply to this | link to this | view in chronology ]

        • icon
          tqk (profile), 13 Oct 2014 @ 4:01pm

          Re: Re: Re:

          Perhaps the servers contain the actual file and records of when/where it was uploaded/downloaded.

          You'd think so. Curious isn't it then that one of the gov't's early moves was to try to get the court's permission to blow away all the data arguing it was unnecessary and too expensive to keep.

          reply to this | link to this | view in chronology ]

          • icon
            antidirt (profile), 13 Oct 2014 @ 4:05pm

            Re: Re: Re: Re:

            You'd think so. Curious isn't it then that one of the gov't's early moves was to try to get the court's permission to blow away all the data arguing it was unnecessary and too expensive to keep.

            The government has copies, and the evidence will be (or has been) handed over to Dotcom as per the rules of criminal procedure.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 13 Oct 2014 @ 4:41pm

              Re: Re: Re: Re: Re:

              "The government has copies, and the evidence will be (or has been) handed over to Dotcom as per the rules of criminal procedure."

              So the US has a copy of every single file that was kept on a server hosted by Leaseweb retained as evidence before all those files were wiped off the server just over a year ago without Megauploads knowledge and will give Dotcom a copy of all that evidence containing all those millions files then?

              reply to this | link to this | view in chronology ]

              • icon
                antidirt (profile), 13 Oct 2014 @ 4:53pm

                Re: Re: Re: Re: Re: Re:

                So the US has a copy of every single file that was kept on a server hosted by Leaseweb retained as evidence before all those files were wiped off the server just over a year ago without Megauploads knowledge and will give Dotcom a copy of all that evidence containing all those millions files then?

                I'm not sure exactly what files they have, but I doubt they have a copy of every file that was ever stored since there were so many. They probably have the server logs, the emails, the files that were allegedly infringed, etc. You know, the relevant files. How are any of the other files relevant? I know Dotcom whined about exculpatory evidence being lost, but I don't understand how those other files are exculpatory. Is it because they might not have been infringing? If so, I don't see how it's relevant. Can you explain.

                reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 13 Oct 2014 @ 5:43pm

                  Re: Re: Re: Re: Re: Re: Re:

                  "I know Dotcom whined about exculpatory evidence being lost, but I don't understand how those other files are exculpatory. Is it because they might not have been infringing? If so, I don't see how it's relevant. Can you explain."

                  So what you are saying is that anything that can help Dotcoms defence you don't see how its irrelevant. Anything on those servers that can be helpful in Dotcoms defence should be available to him to use but because the files were wiped off the servers without his knowledge that is no longer an option but the only files that were copied by the prosecution were cherry picked by them that they deem will incriminate him. Is it any wonder that a fair trial cannot be given being as all those files were wiped off the server and none of which can no longer serve to help Dotcoms defence.

                  reply to this | link to this | view in chronology ]

                  • identicon
                    Anonymous Coward, 13 Oct 2014 @ 5:49pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    should have been written as ..Dotcoms defence you don't see how its relevant.

                    reply to this | link to this | view in chronology ]

                  • icon
                    antidirt (profile), 13 Oct 2014 @ 6:09pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    So what you are saying is that anything that can help Dotcoms defence you don't see how its irrelevant. Anything on those servers that can be helpful in Dotcoms defence should be available to him to use but because the files were wiped off the servers without his knowledge that is no longer an option but the only files that were copied by the prosecution were cherry picked by them that they deem will incriminate him. Is it any wonder that a fair trial cannot be given being as all those files were wiped off the server and none of which can no longer serve to help Dotcoms defence.

                    I'm saying I don't understand how any of the files he doesn't have could possibly help him. What was on the those servers that could have helped him?

                    reply to this | link to this | view in chronology ]

                    • icon
                      That One Guy (profile), 13 Oct 2014 @ 6:54pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Lets take a hypothetical example...

                      Say you've got a server with 100 files on it.

                      40 of them are clearly infringing, or have been proven to be so.

                      40 of them are clearly not infringing, or have been proven to not do so.

                      20 of them have the status unknown. They may be infringing, they may not be, it's not clear either way, and their status as such hasn't been determined.

                      Now, say a government agency, under some not so subtle prodding from a third party, is interested in showing that the company who owns the servers is running a massive piracy haven, and the service is almost entirely for nothing but piracy.

                      If they're trying to make the service/company look as bad as possible, in order to bolster their case, they're going to be interested in the 40 files that support that idea, maybe including in the 20 'maybes' to show that while some of the files on the service might not be infringing, the majority of the files(according to their 'sample') clearly are, and the one running it obviously must have known this.

                      If the defense is allowed access to the same servers, they can present the opposite, showing the 40 clearly not infringing, and 20 'maybes', to show that the service was primarily being used for 'legitimate' files.

                      Alternatively, and more honest(likely more effective too), they could point out that the number of clearly infringing, and clearly not infringing, are equal, with the maybes going either way, undercutting the idea that the service is primarily being used for infringement, and showing that is does have significant 'legitimate' use, which has been ruled previously to be good enough in court as a defense.

                      The DOJ had a vested interest in finding the most damning files, to make the service look as bad as possible. Dotcom, the exact opposite. However, with the destruction of the files on the servers, and the DOJ's 'samples' all that remains, Dotcom is no longer able to gather a 'counter' sample, and, for what I hope is obvious, having to depend on the 'sample' gathered by the DOJ isn't likely to help him much.

                      reply to this | link to this | view in chronology ]

                      • icon
                        antidirt (profile), 13 Oct 2014 @ 7:26pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        If the defense is allowed access to the same servers, they can present the opposite, showing the 40 clearly not infringing, and 20 'maybes', to show that the service was primarily being used for 'legitimate' files.

                        I don't see how the government's case changes one iota even if it concedes that there were millions of files that were lost that are all noninfringing. The case isn't about those files. It's about the files that are the works-in-suit. Dotcom can't point to the files that are noninfringing to prove anything about the files that aren't. Even if every single file that's gone is noninfringing, that doesn't change a thing.

                        reply to this | link to this | view in chronology ]

                        • identicon
                          Anonymous Coward, 14 Oct 2014 @ 7:30am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          So all those emails from the studios highly praising Megaupload for assisting them with regards to copyright infringement and other things that were stored on those servers which have now been wiped can no longer be used for Dotcoms defence. The prosecution would have not copied those emails etc. because it does not help with them with regards to their alleged case against Dotcom so would not have been copied by them. Those emails would have helped Dotcom to show the double standards of the studios with regards to praising him for his assistance with regards to copyright infringement and now the studios say the opposite that he didn't help with regards to copyright infringement and want to destroy him.

                          It would appear that you don't care about anything that could help Dotcoms defence about Megaupload being destroyed because to you you couldn't care less about anything that would show innocence being destroyed because that innocence doesn't help your case of making and finding him to be guilty. The more evidence of innocence being destroyed being destroyed the better with you because its not about innocence with you but guilty. Guilty till innocence is proved with you always never innocence until proved guilty as per the legal system. /sarcasm.

                          reply to this | link to this | view in chronology ]

                      • identicon
                        Anonymous Coward, 13 Oct 2014 @ 9:29pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        But isn't that the whole point of a prosecution, to win at all costs? The DOJ could have easily let Dotcom's defense attorneys have access to the servers to gather whatever evidence they needed before the disks were wiped. That would have only been fair. But instead, the DOJ stonewalled and obstructed at every opportunity, making it as difficult as possible for Dotcom to present an adequate defense. It was the same tactic with seizing all of Dotcom's assets, to ensure that he couldn't even pay his attorney (who was apparently working for free).

                        That's the way the so-called "justice" system works in the United States. It has absolutely nothing to do with justice. It's about all-out warfare, and the DOJ is Hollywood's paid mercenary.

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                    • icon
                      Gwiz (profile), 14 Oct 2014 @ 11:33am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      I'm saying I don't understand how any of the files he doesn't have could possibly help him. What was on the those servers that could have helped him?

                      I have no clue myself, but Dotcom's defense team believes there might be.

                      That aside, doesn't that go against pretty much every rule concerning evidence and discovery? The prosecution never gets to cherry-pick evidence then destroy everything else, does it? I thought rules of discovery required that the defense gets to see ALL of the evidence obtained against them, including that which might help them mount a viable defense. In any other case this type of action would cause a mistrial or at the very least overturn a conviction on appeals, wouldn't it?

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                      • icon
                        Gwiz (profile), 14 Oct 2014 @ 11:47am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        Checking into this further it appears that by having the servers destroyed the USG would be violating Rule 16 which says:

                        (E) Documents and Objects. Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and:

                        (i) the item is material to preparing the defense;

                        (ii) the government intends to use the item in its case-in-chief at trial; or

                        (iii) the item was obtained from or belongs to the defendant.


                        Source

                        It seems to me that all three situations are at play here, so I really don't know how the government can successfully win a trial on this with such blatant disregard for the rules.

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                        • icon
                          antidirt (profile), 14 Oct 2014 @ 12:28pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          Checking into this further it appears that by having the servers destroyed the USG would be violating Rule 16 which says:

                          (E) Documents and Objects. Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and:

                          (i) the item is material to preparing the defense;

                          (ii) the government intends to use the item in its case-in-chief at trial; or

                          (iii) the item was obtained from or belongs to the defendant.

                          Source


                          It seems to me that all three situations are at play here, so I really don't know how the government can successfully win a trial on this with such blatant disregard for the rules.


                          Thanks for looking that up. Crim Pro is not something I know much about. That said, I'm not sure how all the servers were ever within the government's possession, custody, or control. And even if they were, my question is how the files were "material to preparing the defense," intended to be used in the government's "case-in-chief at trial," or "obtained from or belong[ed] to the defendant." That's my point. How are the files stored by third parties that aren't at issue is this case "material," i.e., relevant?

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                          • icon
                            Gwiz (profile), 14 Oct 2014 @ 1:23pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            That said, I'm not sure how all the servers were ever within the government's possession, custody, or control.

                            I don't know about possession or custody currently, but they were at one point when the government was able to get "their" evidence. As for control, absolutely, since the USG is not giving the defense the opportunity to investigate the servers or allow Mega the funds to preserve the data.


                            That's my point. How are the files stored by third parties that aren't at issue is this case "material," i.e., relevant?

                            I don't know myself either, but the rules of discovery are designed to afford the defendant the opportunity to build a defense. By keeping the servers away from Mega's defense team the USG is effectively crippling the defense and stomping on due process.

                            I would also think that the server logs themselves would be relevant because that would give clues as to when, where and with whom infringement happened (or didn't happen). Can the defense team be assured that the government has kept them in toto or has the prosecution only saved the ones that help their case?

                            Going back to your storage unit scenario above, would it fly if the government seized the "supposed" stolen goods from the storage unit and had the rest of the contents destroyed, including the bill of sale that proves the good are not stolen?

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                            • identicon
                              Anonymous Coward, 14 Oct 2014 @ 1:29pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              Its in the USG's favour that they destroy the bill of sale that proves that the goods were not stolen and then state that there was no bill of sale in the locker that was destroyed and that it was up to the defence to prove that bill of sale was in the locker and destroyed by the USG.

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                      • icon
                        antidirt (profile), 14 Oct 2014 @ 12:05pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        I have no clue myself, but Dotcom's defense team believes there might be.

                        That aside, doesn't that go against pretty much every rule concerning evidence and discovery? The prosecution never gets to cherry-pick evidence then destroy everything else, does it? I thought rules of discovery required that the defense gets to see ALL of the evidence obtained against them, including that which might help them mount a viable defense. In any other case this type of action would cause a mistrial or at the very least overturn a conviction on appeals, wouldn't it?


                        Well, it's not a matter of the government having the evidence and refusing to turn it over. I think a good analogy would be if I rent a storage locker and keep evidence of my crime in there along with a bunch of crap. If the government searches the locker and seizes the evidence, but then leaves the crap, I can't complain that the evidence is being kept from me if the government chooses to not pay the rent so my crap stays in the locker. The owner of the locker can auction off my crap or throw it away, and that doesn't affect my legal case.

                        But it's the fact that keeping relevant, exculpatory evidence from Dotcom would undermine the government's case that makes me skeptical of Dotcom's argument that there's anything relevant being kept from him. Aren't the servers just full of files stored by third parties? How do those third-party files help Dotcom? Unless the government is claiming those files are infringing, I don't see how they matter. They're the crap I let my friend store in my locker. They don't have anything to do with my legal case. I can't point to the legal crap I kept in the locker to escape liability for the evidence of the crimes that I also kept there.

                        What possible evidence could there be? How are a bunch of files stored by third parties relevant? That's what I'm asking.

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                        • icon
                          Gwiz (profile), 14 Oct 2014 @ 12:33pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          What possible evidence could there be? How are a bunch of files stored by third parties relevant? That's what I'm asking.

                          I could think of a couple things that would be relevant. I believe (haven't looked into this case for a while now) that Dotcom was claiming that some of the files that they are charging him for infringing were ones that the USG told him to keep in place while investigating and building a case against NinjaVideo and never told him he was free to remove them.

                          Also, wouldn't evidence of complying with DMCA takedowns (even though he wasn't really required to do so) provide evidence that they were attempting to comply with US laws and therefore weaken the conspiracy to commit infringement allegations due to the DMCA safe harbor provisions?

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                          • icon
                            antidirt (profile), 14 Oct 2014 @ 1:02pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            I could think of a couple things that would be relevant. I believe (haven't looked into this case for a while now) that Dotcom was claiming that some of the files that they are charging him for infringing were ones that the USG told him to keep in place while investigating and building a case against NinjaVideo and never told him he was free to remove them.

                            Yes! I forgot about that. Thanks! If true, that certainly cuts in Dotcom's favor. But, I have to ask, are those particular files among the ones that the government says are criminally infringing? My point is that, while I'm sure there's some examples of Dotcom "doing the right thing," I don't see how those examples explain away the times when he allegedly didn't. You can't point to all the times you didn't break the law to defend the times you didn't. "Well, I didn't sell cocaine to Person X" doesn't excuse the time you sold cocaine to Person Y.

                            Also, wouldn't evidence of complying with DMCA takedowns (even though he wasn't really required to do so) provide evidence that they were attempting to comply with US laws and therefore weaken the conspiracy to commit infringement allegations due to the DMCA safe harbor provisions?

                            That's another great point. I honestly don't know how the DMCA applies in a criminal case. I haven't thought about it, and I don't think the issue has been litigated. That said, the government contends that Dotcom did acts that would make the DMCA safe harbors not apply--even if they potentially did.

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                            • icon
                              Gwiz (profile), 14 Oct 2014 @ 1:37pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              One last point, I have no idea if Mega is guilty or not. I was interested at one time to see the outcome of a fair trial on all of this.

                              Now I am simply disgusted at the DOJ's repeated attempts to keep Dotcom from mounting a viable defense at every turn. That is not justice in my book, it is blatant attempt to railroad someone. If the government's case is so weak that they have to resort to these type of tactics in order to "win" by attrition they should drop the case and spend my tax dollars in a wiser fashion.

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                              identicon
                              RD, 14 Oct 2014 @ 1:37pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              " But, I have to ask, are those particular files among the ones that the government says are criminally infringing? My point is that, while I'm sure there's some examples of Dotcom "doing the right thing," I don't see how those examples explain away the times when he allegedly didn't"

                              Asshole, it DOESNT MATTER WHAT YOU (or the govt) THINKS! ALL the evidence MUST be provided for a defendant to make his case. You just arent getting that. If only SOME of it is to be provided, then it may as well ALL be thrown out. YOU dont know, the GOVT doesnt know, probably Kim doesnt know ALL the evidence in question that might help his case. You, I and the govt dont get to decide that. The defendant MUST be allowed to see this or there is no, I repeat NO ZERO ZILCH chance of a fair trial.

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                          • identicon
                            Anonymous Coward, 14 Oct 2014 @ 1:16pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            Don't forget that Megaupload gave the studios direct access to their system so that the studios themselves could deal with any infringement of their copyright rather than having to deal with DMCA's directly which is something that Megaupload did so above what is required for them to do so as they didn't have to give the studios direct access to their system.

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                        • identicon
                          RD, 14 Oct 2014 @ 1:33pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          "But it's the fact that keeping relevant, exculpatory evidence from Dotcom would undermine the government's case that makes me skeptical of Dotcom's argument that there's anything relevant being kept from him. Aren't the servers just full of files stored by third parties? How do those third-party files help Dotcom? Unless the government is claiming those files are infringing, I don't see how they matter. They're the crap I let my friend store in my locker. They don't have anything to do with my legal case. I can't point to the legal crap I kept in the locker to escape liability for the evidence of the crimes that I also kept there.

                          What possible evidence could there be? How are a bunch of files stored by third parties relevant? That's what I'm asking."

                          Not only should you be reported for these 2 absurd and blatantly anti-defendant, anti-due-process paragraphs, you should be barred from ever commenting on anything on the internet ever again.

                          Yes, these comments of yours are THAT bad.

                          Just because you think that, maybe, there might not be any useful evidence (proof of which you claim is that because YOU dont see it, it must not be so) that ALL the evidence should be kept from the defendant. That the government can destroy whatever parts they want and thats OK, because after all, what could there possibly be to help them anyway? And then you want Kim to willingly come to the US with no assurances and just "trust" this insane system you support to give him a fair trial? How do you sleep at night?

                          This may be the most absurd thing I have ever read on the entire internet. And that encompasses a LOT of fucking stupid shit.

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                    • icon
                      That One Guy (profile), 14 Oct 2014 @ 11:46am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      I'm saying I don't understand how any of the files he doesn't have could possibly help him. What was on the those servers that could have helped him?

                      Actually, you know what, re-reading that, I think I can sum up the matter much easier:

                      EVIDENCE. There was evidence on the servers. Maybe of guilt, maybe of innocence, but the files on those servers remained evidence regardless. Only allowing one side, the prosecution, to go through and cherry pick out what evidence they wanted to build their case, while prohibiting the defense the same opportunity, and then allowing the servers to be wiped, destroying evidence, should be enough to get the case tossed all on it's own.

                      (Not even going into the fact that by wiping the servers, or allowing them to be wiped, Dotcom has effectively already been found guilty and punished accordingly, all before the trial ever happened, as that destroys the business that was using those servers)

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            • identicon
              Anonymous Coward, 13 Oct 2014 @ 6:51pm

              Re: Re: Re: Re: Re:

              The Government has illegal copies of the data that they were told that they were not allowed to have.

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              • icon
                antidirt (profile), 13 Oct 2014 @ 7:19pm

                Re: Re: Re: Re: Re: Re:

                The Government has illegal copies of the data that they were told that they were not allowed to have.

                I haven't really followed that closely. I know at first the court said the warrant was faulty, but then an appeals court said it wasn't. Yet, the appeals court agreed that the drives shouldn't have been turned over to the U.S. But even if the New Zealand government shouldn't have turned them over to the U.S., I don't see how that makes them inadmissible in the U.S. Moreover, the U.S. got the evidence it needed for the indictment from the U.S.-based servers, and there's no argument that the warrant in the U.S. is faulty that I know of.

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      • identicon
        Anonymous Coward, 14 Oct 2014 @ 4:45am

        Re: Re:

        And were any of those alleged copyright infringing files the prosecution say were actually shared downloaded by the actual copyright owner and actually then checked to see if it were infringing on their copyright because apparently Warner Bros did not download or check alleged infringing files in the Hotfile case but just filed DMCA's based on names only. see http://torrentfreak.com/warner-bros-robots-141007/

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  • identicon
    Anonymous Coward, 13 Oct 2014 @ 12:52pm

    I don't like Kim Schmitz and Megaupload (MU) was undoubtedly used by some to share illegal stuff but what the US gov is doing here is just wrong. They play world police and to me it seems they think the whole world must follow the US law.

    The files were available all over the world and if, and that is a big if, MU is guilty then every country should get a part of the money not just the US. In my opinion it is a bit arrogant to say "we deserve everything" when the "we" represents only 320ish million people. China and India each have ~4 times the population, so why shouldn't they get a huge chunk of it?

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      identicon
      Anonymous Coward, 13 Oct 2014 @ 2:28pm

      Re:

      The files were available all over the world and if, and that is a big if, MU is guilty then every country should get a part of the money not just the US. In my opinion it is a bit arrogant to say "we deserve everything" when the "we" represents only 320ish million people. China and India each have ~4 times the population, so why shouldn't they get a huge chunk of it?

      I'd be fine with them getting the proceeds of everything produced by companies in those countries. Their Presidents might have enough to go out to each at their local McDonalds.

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    • identicon
      Anonymous Coward, 13 Oct 2014 @ 2:54pm

      Re:

      "The files were available all over the world and if, and that is a big if, MU is guilty then every country should get a part of the money not just the US"

      Is this any worse than the RIAA keeping all the money from the Napster, Grokster, Kazaa, and Limewire lawsuits, and then letting the recording artists (on whose behalf they were supposedly defending) hang out to dry?

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      • identicon
        Anonymous Coward, 13 Oct 2014 @ 4:17pm

        Re: Re:

        "Is this any worse than the RIAA keeping all the money from the Napster, Grokster, Kazaa, and Limewire lawsuits, and then letting the recording artists (on whose behalf they were supposedly defending) hang out to dry?"

        Honestly I'm not familiar with those cases but if the RIAA got all the money and i.e. the Indian movie association (aka Bollywood) got none of it then in my opinion it is injust because as mentioned before all those copies were available in every country. I don't want to speculate why they(India and others) are that passiv because it would touch geopolitics and that would go way off topic but my general positon stands: they really should get a part of the seized funds because Hollywood isn't all that exists.

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  • identicon
    Anonymous Coward, 13 Oct 2014 @ 1:18pm

    It never ceases to amaze me how far the US Gov. will go to turn a legitimate and law-a-biding business man in NZ into a rallying cry for generations to come.

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  • icon
    Groaker (profile), 13 Oct 2014 @ 3:37pm

    Over time it all goes away no matter how ridiculous the story.
    Dotcom, Ivins, Schwarz, etc all. Totalitarianism makes and remakes it's history as it seems fit.

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    • icon
      tqk (profile), 13 Oct 2014 @ 4:15pm

      Re:

      Totalitarianism makes and remakes it's history as it seems fit.

      It makes for a fun and satisfying game. The tyrants think they're getting away with murder, only to find a Brutus shivving them in the back. Sic semper tyrannis!

      We only live once, so make sure once is enough. This too shall pass. In the meantime, we get to torment the dipshits. Woohoo!

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  • identicon
    Anonymous Coward, 13 Oct 2014 @ 4:41pm

    Wow, I don't think I've clicked report so many times in one story!

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      icon
      antidirt (profile), 13 Oct 2014 @ 5:11pm

      Re:

      Wow, I don't think I've clicked report so many times in one story!

      Wouldn't it be more productive to explain why you disagree with someone than to "report" the post? Are you threatened by people who think differently than yourself?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Anonymous Coward, 13 Oct 2014 @ 5:41pm

        Re: Re:

        Not to you, attention whore!

        reply to this | link to this | view in chronology ]

      • identicon
        RD, 13 Oct 2014 @ 6:14pm

        Re: Re:

        "Wouldn't it be more productive to explain why you disagree with someone than to "report" the post? Are you threatened by people who think differently than yourself?"

        It has not one iota to do with feeling threatened. It has *everything* to do with the fact that I have only so many breaths in my life to take, and why waste them on someone who exists *solely* to take a contrarian view to whatever is posted on this site, EVEN WHEN HE DIRECTLY CONTRADICTS HIS OWN PREVIOUS STAND to do so? We are not fucking Sisyphus, we have lives to live that should be *productive*

        Even writing this is putting me one step closer to the grave for ZERO benefit to me, but hopefully some good will come of it for others to see your ridiculous and absurd *appeal to authority* for what it is.

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          icon
          antidirt (profile), 13 Oct 2014 @ 6:19pm

          Re: Re: Re:

          Feel free to not read my comments. But "reporting" them because you disagree with them is just sad. I thought TD was supposed to be all about free speech and opposing points of view. Funny how that tenet goes away when it's speech the people here don't like. The fact is I'm opinionated and I back up my opinions more than probably anyone else on TD. I get that my views aren't popular. But the hostility here is ridiculous. If people disagree, they should explain why. Use more words, not hide the words they don't like.

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          • icon
            Rikuo (profile), 13 Oct 2014 @ 9:53pm

            Re: Re: Re: Re:

            Here's the ultimate refutation of your claim that Techdirt is anti-free speech.
            First, your account is still here, and not blocked. You are not prevented from making new comments. You have acknowledged in the past that it's the USERS of the site who are clicking the report button and not Techdirt staff.
            Secondly, here's a TD article I remember very well.
            https://www.techdirt.com/articles/20130828/05042724332/man-who-raped-14-year-old-sentenced-to-30-day s-jail-because-girl-looked-kinda-old-internet-is-mean.shtml

            369 comments. Quite a discussion going on. Going back through it, I see all of 2 comments being hidden, and that was because they were short and had coarse language in them. The debate got quite heated with TD staff weighing in from time to time.
            If TD were anti free speech, then the prediction is obvious - they should say their piece and then block the comments of all those who disagree with them. Let's check that article?
            Oh wait, that doesn't happen. There were plenty of people with plenty of comments disagreeing with TD staff and yet their comments WERE NOT BLOCKED.

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            • identicon
              Anonymous Coward, 13 Oct 2014 @ 10:41pm

              Re: Re: Re: Re: Re:

              You can rationalize until the cows come home, but it does nothing to change the fact here that hiding comments makes it almost impossible to read this thread. I am currently reading on my iPad, and having to open a comment slows my reading down to a crawl. In fact, the more I have to click open progressively slows down my device to the point that waiting for a closed comment to open becomes excruciatingly long, and after doing this several times the program used to access the site has simply stopped working and I am returned to the iPad desktop. It is not just that device that begins to slow down to the point of programs starting to stop responding and shutting. I tried to read this thread on my high-end desktop using a high-speed cable connection, and it too eventually slowed to a crawl, stopped responding, and IE explorer eventually quit working and took me back to Windows' desktop. This is the only site that I happen to peruse that exhibits progressive slowdown to the point that a program closes down sua sponte.

              reply to this | link to this | view in chronology ]

              • This comment has been flagged by the community. Click here to show it
                identicon
                Anonymous Coward, 13 Oct 2014 @ 11:10pm

                Re: Re: Re: Re: Re: Re:

                That's because the intention of this site is to censor dissenting opinions.

                Mike Masnick and the commenters here are fully aware that their excuses for lawbreaking don't hold any water, so it is impossible for them to refute dissenting opinion. So they simply censor instead.

                Personally, I don't mind at all, as this blog has taken quite a continuous and public dive the past 5 years. But we know who's fault that is, don't we? :)

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                • icon
                  Rikuo (profile), 14 Oct 2014 @ 2:30am

                  Re: Re: Re: Re: Re: Re: Re:

                  ...Clearly you didn't even bother checking out the link I gave. I gave an article that is chock full of dissenting opinions, and out of 369 comments, the only two that were hidden were done so because of foul language. This makes your assertion false.

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                    identicon
                    Anonymous Coward, 14 Oct 2014 @ 10:56am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    So what? That's one. I can show you at least five censorous ones from the last week. You need to go back to school and learn the definition of the word 'outlier'.

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                    • identicon
                      Anonymous Coward, 14 Oct 2014 @ 11:36am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      So what. What comments you deem to be acceptable may deem to be spam, trollish or otherwise inappropriate to someone else. You can't stop someone from clicking the report button because they find a comment to be spam, trollish or otherwise inappropriate to them and you don't.

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                • identicon
                  Anonymous Coward, 14 Oct 2014 @ 3:15am

                  Re: Re: Re: Re: Re: Re: Re:

                  Fucking hell, it's a regular orgy of average_joe's wife's laptops.

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              • icon
                Rikuo (profile), 14 Oct 2014 @ 2:26am

                Re: Re: Re: Re: Re: Re:

                "I tried to read this thread on my high-end desktop using a high-speed cable connection, and it too eventually slowed to a crawl, stopped responding, and IE explorer eventually quit working and took me back to Windows' desktop."

                Really? Then how come I NEVER have had a problem with this site, and I too am using a high end computer? I can tell one thing you're doing wrong already and that's the fact you say you say you use Internet Explorer.

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                • identicon
                  RD, 14 Oct 2014 @ 6:09am

                  Re: Re: Re: Re: Re: Re: Re:

                  Thats because you are using fucking Internet Explorer, which is so badly misnamed at this point its laughable. Get a real browser that doesn't choke when you go to simple websites.

                  reply to this | link to this | view in chronology ]

                  • icon
                    Rikuo (profile), 14 Oct 2014 @ 6:52am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    I think you replied to the wrong person. I'm not the one saying he's using IE (I switch between Chrome and Firefox) and almost never touch IE.

                    reply to this | link to this | view in chronology ]

                  • identicon
                    Anonymous Coward, 14 Oct 2014 @ 8:07am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    No...this also happens using an Apple laptop, iPad and iPhone and their native browsers, as well as Android devices. In every case the machine has to wait while a new page opens that reveals the comment that has purposely been hidden from view, and for reasons unknown the wait becomes longer over time as more hidden comments are revealed.

                    My point is not to engage in a technical debate about browsers, but merely to point out that the hiding of comments can have negative consequences in attempting to use the site. This is readily apparent to me after trying to follow the discussion here and having all of the devices I was using slow to a crawl before the browsers stopped working and returned me to the respective desktops.

                    reply to this | link to this | view in chronology ]

                    • identicon
                      Anonymous Coward, 14 Oct 2014 @ 8:09am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      How about something in the site preferences where one can simply instruct that comments not be hidden from view?

                      reply to this | link to this | view in chronology ]

                      • identicon
                        Anonymous Coward, 14 Oct 2014 @ 10:15am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        What good would the censor button be then? I want to be able to censor on Techdirt and know that everyone sees it.

                        reply to this | link to this | view in chronology ]

                    • identicon
                      Anonymous Coward, 14 Oct 2014 @ 10:16am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      If you are having problems with hidden comments, you are not seeing the original page where javascript is used to control the hiding and showing of already loaded comments. If you have the original page, hide show is carried out on your machine by a local re-render of the page. Blame Apple and Google for rendering the pages on their servers for you and giving you the rendered page.

                      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 13 Oct 2014 @ 9:08pm

        Re: Re:

        People like this apparently click-happy individual do not realize that by closing a comment it makes reviewing a thread more difficult, and in the case of this thread very difficult.

        reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 13 Oct 2014 @ 11:01pm

      Re:

      Oh yeah? So tell us how you do feel about being a pathetic, censoring douche?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Oct 2014 @ 6:39pm

    Mike, while I share many of your concerns about forfeiture and the use of government authority more generally, you're just mistaken about what copyright law, and especially criminal copyright law, actually says. You repeatedly claim that, to be criminal, infringement must be "for commercial advantage or private financial gain." That simply is not true, and has not been true since Congress passed the lamely-named No Electronic Theft Act in the 1990s. You have written about the NET Act before, I think, so I am surprised you would make this mistake.

    You also seem to accept at face value Dotcom's argument that the forfeiture is based on extraterritorial conduct, and the copyright statute does not cover extraterritorial conduct. But you, Mike Masnick, know that much of the data on Megaupload was hosted in the US. I know you know this because you have written many TD stories about Megaupload's US hosting partner, Carpathia. And even if Carpathia were outside the US, distributing copyrighted files into the US from a server outside the US is conduct within the scope of US copyright law. So again, I am surprised that you are so accepting of Dotcom's arguments on this issue.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      icon
      antidirt (profile), 13 Oct 2014 @ 7:11pm

      Re:

      Mike, while I share many of your concerns about forfeiture and the use of government authority more generally, you're just mistaken about what copyright law, and especially criminal copyright law, actually says. You repeatedly claim that, to be criminal, infringement must be "for commercial advantage or private financial gain." That simply is not true, and has not been true since Congress passed the lamely-named No Electronic Theft Act in the 1990s. You have written about the NET Act before, I think, so I am surprised you would make this mistake.

      Thanks for the comment. I'm sure Mike won't respond. Good call on the NET Act. Here's the text if anyone's interested: http://www.gpo.gov/fdsys/pkg/PLAW-105publ147/pdf/PLAW-105publ147.pdf Section 506 does in fact say "for purposes of commercial advantage or private financial gain." But I think the point you're making is that the NET Act added this to Section 101: "The term 'financial gain' includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works."

      You also seem to accept at face value Dotcom's argument that the forfeiture is based on extraterritorial conduct, and the copyright statute does not cover extraterritorial conduct. But you, Mike Masnick, know that much of the data on Megaupload was hosted in the US. I know you know this because you have written many TD stories about Megaupload's US hosting partner, Carpathia. And even if Carpathia were outside the US, distributing copyrighted files into the US from a server outside the US is conduct within the scope of US copyright law. So again, I am surprised that you are so accepting of Dotcom's arguments on this issue.

      It is strange how much Mike just regurgitates Dotcom's arguments. Well, it's only strange if you think Mike's goal is to get to the truth. The indictment does focus on the files stored in Virginia: "From at least November 24, 2006 until at least January 19,2012, infringing copies of copyrighted materials were stored on computer servers located at Carpathia Hosting in Ashburn, Virginia, which is in the Eastern District of Virginia." What's unclear to me, though, is where the specific files mentioned in the indictment were stored or uploaded to. For example, as to a Louis Armstrong song, it says: "An infringing copy of this copyrighted work was still present on servers leased by the Mega Conspiracy as of September 2,2011." Does that mean on the servers in Virginia? I know Dotcom used servers in the U.S. and abroad. The extraterritoriality issues aren't exactly clear, IMO.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Oct 2014 @ 8:04pm

        Re: Re:

        yet, you regurgitate the DOJ arguments. Arguments from proven liers. But I guess, liers attract liers. You are as morally corrupt as the DOJ are.

        Are you also as financially corrupt too? How much are you paid to try to discredit this site?

        reply to this | link to this | view in chronology ]

        • This comment has been flagged by the community. Click here to show it
          identicon
          Anonymous Coward, 14 Oct 2014 @ 11:11am

          Re: Re: Re:

          "How much are you paid to try to discredit this site?"

          Not as much as you should get...

          reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 14 Oct 2014 @ 11:34am

        Re: Re:

        I'm sure Mike won't respond.

        Oh look, you found a way to slip in your classic 'Mike's too cowardly to debate me' line by trying to disguise it as a generality. How completely unexpected! /s

        It is strange how much Mike just regurgitates Dotcom's arguments. Well, it's only strange if you think Mike's goal is to get to the truth.

        And look at that, another personal attack.

        This is why your comments get reported AJ, because 99% of the time you seem to have the digital version of Tourretts, and find it impossible not to insult someone(usually Mike).

        (As an aside, I find it rather funny that you're accusing Mike of 'regurgitating Dotcom's arguments, when you seem to be doing the exact same regarding the DOJ's. Double standards much?)

        reply to this | link to this | view in chronology ]

        • This comment has been flagged by the community. Click here to show it
          icon
          antidirt (profile), 14 Oct 2014 @ 12:16pm

          Re: Re: Re:

          Oh look, you found a way to slip in your classic 'Mike's too cowardly to debate me' line by trying to disguise it as a generality. How completely unexpected! /s

          Mike doesn't defend his nonsense when called out on it. And it's not just when I do it. This AC called Mike out, and, as I predicted, Mike was silent. Was I wrong?

          And look at that, another personal attack.

          This is why your comments get reported AJ, because 99% of the time you seem to have the digital version of Tourretts, and find it impossible not to insult someone(usually Mike).

          (As an aside, I find it rather funny that you're accusing Mike of 'regurgitating Dotcom's arguments, when you seem to be doing the exact same regarding the DOJ's. Double standards much?)


          I do challenge Mike, substantively and personally. So what? I disagree with what he says, and I explain why I think he's wrong. I think he's selectively skeptical, and I point that out. That's me stating an opinion, and I'm happy to back up my opinion with substantive argument. That should be celebrated, not punished. Debate is a good thing. Dissent is a good thing. It's unreal that I have to defend the fact that I have an opinion that I defend. WTF?

          And I don't just regurgitate what the government says. I've stated above that I think Dotcom makes a good point about what works were allegedly infringed, and more importantly, where those infringements allegedly took place. The government may well have the evidence, but I haven't seen it yet. But that's not surprising, as we're still at the very early stages. I think the government has probably said enough to get past a motion to dismiss, but I don't think they've shown enough to get a conviction. I'd love to have all the evidence now, but we don't.

          reply to this | link to this | view in chronology ]

          • icon
            John Fenderson (profile), 14 Oct 2014 @ 12:26pm

            Re: Re: Re: Re:

            "That's me stating an opinion, and I'm happy to back up my opinion with substantive argument."

            Right. Substantive arguments like calling him (and everybody else here) a bunch of thieves and/or pro-piracy. For the record, I don't think I've ever seen you back up your personal attacks and accusations with substantive arguments. It's just name-calling.

            reply to this | link to this | view in chronology ]

            • This comment has been flagged by the community. Click here to show it
              icon
              antidirt (profile), 14 Oct 2014 @ 12:40pm

              Re: Re: Re: Re: Re:

              Right. Substantive arguments like calling him (and everybody else here) a bunch of thieves and/or pro-piracy. For the record, I don't think I've ever seen you back up your personal attacks and accusations with substantive arguments. It's just name-calling.

              I think Mike is obviously pro-piracy, and this post is probative of that conclusion. He just recites Dotcom's arguments, with no examination of the merits of those arguments, verbatim. Yet, he's completely skeptical of everything the government says about Dotcom. Why is he so skeptical of every single thing the government says, yet so completely fawning of whatever Dotcom's lawyers argue? My suggestion: Because he's pro-piracy, and he loves Dotcom. That's substance, not name-calling. Has Mike ever even mentioned the remote possibility that something Dotcom argued Mike possibly be wrong? Of course not. Mike doesn't do substance. He does form. And "protecting" his "friend" Dotcom takes precedence over substance all day long on TD, IMO.

              reply to this | link to this | view in chronology ]

              • icon
                Gwiz (profile), 14 Oct 2014 @ 2:08pm

                Re: Re: Re: Re: Re: Re:

                I think Mike is obviously pro-piracy, and this post is probative of that conclusion. He just recites Dotcom's arguments, with no examination of the merits of those arguments, verbatim. Yet, he's completely skeptical of everything the government says about Dotcom. Why is he so skeptical of every single thing the government says, yet so completely fawning of whatever Dotcom's lawyers argue?


                I disagree. When Megaupload was first taken down Mike had this to say:
                First, it's important to acknowledge that the founder of Megaupload, who goes by Kim Dotcom, has a long history of flaunting flouting the law in a variety of ways. That makes him quite unsympathetic in a court. On top of that, there are certain claims in the indictment that, if true, mean it's quite likely that he broke the law. Whether or not the violations amount to racketeering & conspiracy is beyond any analysis that we're going to be able to do here. I would say that I would not be at all surprised if he's found guilty. Source
                Mike's attitude about this case has changed since then, but not because he is "pro-piracy" or Dotcom's buddy or whatever. It's because of the outlandish behavior of the DOJ and their constant twisting of the law in this case starting from the indictment and continuing on to this day.

                I also believe that Dotcom possibly broke some laws, but the DOJ's actions to this point have been far, far worse and have given me ample reason to be skeptical of anything they say concerning Mega and Dotcom.

                reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Oct 2014 @ 6:44pm

    from the top politicians to the cops at the bottom everyone steals and commits crimes against the citizen they swore to protect.

    How is that blind loyalty to your government working out for you guys so far.

    reply to this | link to this | view in chronology ]

  • icon
    MrTroy (profile), 13 Oct 2014 @ 11:21pm

    Site feature request

    It would be nice if there was a button to allow us to "collapse" a comment thread while in threaded view. When I saw 174 comments, I knew there was going to be an antidirt/Whatever screed, but the main screed currently accounts for half of the vertical space for this page! Sometimes they're fun to read for a bit, but sometimes it would be nice to focus on comments actually discussing the article.

    Being able to collapse an entire thread would make it much easier to scan through the relevant threads.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Oct 2014 @ 10:01am

      Re: Site feature request

      I for one would welcome any option where you can select to choose to block ALL comments by a particular user and then at a later date should you wish then choose to unblock so that you can view all comments by that particular user again.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Nov 2014 @ 1:52pm

    I'd like to know how much Apple, Microsoft etc paid the government (or specific officials (you know who) in government) not to seize THEIR cloud infrastructure......

    reply to this | link to this | view in chronology ]


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