from the chilling-effects dept
For example, the DOJ discusses Skype chats and emails in which Megaupload employees discuss ways in which they might prevent some infringement from happening, and at other times say things like "I have the feeling that Kim tolerates a certain amount of copyright infringement." While the DOJ seems to think these are damning, it seems like the opposite. It seems clear from a statement like the one quoted that "enabling infringement" wasn't a focus of the operation. After all, if the company was so focused on profiting from infringement, wouldn't it be clearly known and wouldn't it be openly discussed as such? Saying that you think the boss "tolerates a certain amount of copyright infringement" suggests, without any direct evidence, that the company recognizes it needs to deal with the infringement effort, but that there are tradeoffs there. IF the company was really a "piracy conspiracy" as the DOJ and the MPAA like to claim, then you'd think the comments would be much more along the lines of direct quotes about figuring out ways to enable much more infringement. Instead, you get discussions of ways to possibly stop more infringement:
“Maybe we should automatically delete videos on Megavideo that are longer than 30 minutes and have more than XXX views or something because I still see so much piracy that is being embedded.”;That doesn't sound like something coming from a company that is interested in building a business around infringement. It sounds like a cloud storage provider struggling with the best way to provide the best service possible, while thinking through ways to limit infringement.
As far as I can tell from these snippets, the DOJ seems to be arguing "well, they knew the service was used for infringement, thus they're guilty for not stopping it." But that's not (at all) how the law works. As was found in the Viacom/YouTube case, company officials need to be aware of specific cases of infringement (such as via a clear and complying takedown notice) rather than general knowledge that the platform is used (even widely) for infringement.
Once again, while you never know how a judge might read these statements out of context when presented in the worst possible light by a DOJ that's in-bed with the MPAA, the striking thing to me is that the evidence is so weak. Given just how much the MPAA made Kim Dotcom out to be pure evil, I honestly expected real evidence of an operation built around infringement. The DOJ's case is stunningly weak here. If I were working at the DOJ, honestly, I'd be hoping that the extradition attempt fails, because actually pursuing this case in court runs a very serious risk of a huge embarrassment for the government, bringing a highly questionable case on the weakest of evidence, presented entirely out of context.