After the US shutdown
of Megaupload, we noted that there were serious issues
with the indictment, in that the US Attorneys seemed to make all sorts of leaps of logic to make their case, and it suggested that they had come into the case with a pre-determined idea (take the site down), and then cherry picked and distorted evidence to make the case. For example, we noted that the indictment used the lack of a search engine on Megaupload to indicate that it was a "criminal conspiracy," because it was "hiding" the infringement on the site. But that made little sense, considering that previous cases had found that having
a search engine was an indication of inducement, and made a site against the law. The US government seemed to be saying that having search is inducement, but not having search makes you a conspiracy. That's crazy.
Kim Dotcom is continuing to make his case publicly, sharing a bunch of details of why he's confident that he'll win and why the US Government's case is wrong
. In particular, he takes aim at the claims that he's guilty of direct infringement for uploading and sharing some songs. He claims that the government misses the fact that he uploaded songs he owned, but he never actually shared them
“A link distributed on December 3, 2006 by defendant DOTCOM links to a musical recording by U.S. recording artist ’50 Cent’. A single click on the link accesses a Megaupload.com download page that allows any Internet user to download a copy of the file from a computer server that is controlled by the Mega Conspiracy,” the indictment reads.
Dotcom told TorrentFreak that the file in question wasn’t infringing at all. He explained that he actually bought that song legally, and that he uploaded the file in private to test a new upload feature. He quickly picked a random file from his computer, which turned out to be this song.
“The link to the song was sent using the private link-email-feature of Megaupload to our CTO with the file description ‘test’. I was merely testing the new upload feature,” Dotcom said.
“The URL to this song had zero downloads. This was a ‘private link’ and it has never been published,” he added.
That raises questions about whether or not you can upload your own music for private use -- but given things like Google's Music locker and Amazon's music locker, it seems that lots of companies let you do something quite similar. That said, I would imagine the government's response is just the fact that such a system lets you offer up "private links" means that it's a form of distribution. However, it does make the government's case a little trickier.
Separately, Dotcom reveals that the large movie studios, who were the key source pushing for the indictment in the first place, were eager to work with Megaupload
and the company had relationships with many of those companies. There are full emails there, including Disney offering up an alternative agreement to Mega's terms of service, and Warner Bros. asking for easier ways to upload its content (and talking about being able to share key movie content). The WB email is pretty damning:
My name is Joshua from the Warner Bros. Advanced Digital Services department.
I would like to know if your site can take a Media RSS feed for our syndications.
We would like to upload our content all at once instead of one video at a time.
Thank you for your time and funny content,
Joshua D. Carver
This is, certainly reminiscent of the revelation that while Viacom was freaking out over YouTube and suing, its marketing people were uploading tons of clips, and that Viacom was so confused that it actually sued YouTube over clips it had uploaded itself
All that said, I still think that Kim Dotcom's decision to fight this in the press
is a huge mistake. Even though he makes it out like he's fighting the MPAA -- and I'm sure they were absolutely behind much of this -- he's really fighting the US Attorneys, a part of the Justice Department, and they don't
deal well with things like this. They can be incredibly vindictive and are focused solely on winning the case, not on what the public thinks. They'll use everything
Dotcom says publicly and turn it against him.
Along those lines, for all the parallels discussed to the YouTube case, or even the Hotfile case, it's important to recognize the key difference. Those cases were civil cases between two private parties, where the end results could be injunctions or monetary awards over copyright infringement charges. Megaupload's founders are facing criminal conspiracy
charges, which are an entirely different ballgame. Yes, the conspiracy charges are based
on copyright infringement, but arguing solely about the copyright infringement part misses the main thrust of the government's case. The conspiracy charge is why
they can do something ridiculous like claiming the lack of a search engine is evidence of a crime (even if having a search engine is evidence of inducement). Having all of this rest on the "conspiracy" charge means that the rules in this case are different, and the evidence just needs to show conspiracy -- not necessarily focus on the infringement aspects.
I think that Dotcom and his lawyers absolutely should be making these points in court
to show that the conspiracy angle falls down when you scratch beneath the surface. Furthermore, they should probably be making the case that, at best, this should have involved a civil copyright lawsuit. But fighting a criminal conspiracy charge as if it's the same thing as a civil copyright infringement dispute is a mistake, and it's one that federal prosecutors will jump on and exploit strongly. Dotcom is right to point out that there's a serious conflict of interest in the fact that Neil MacBride, the former anti-piracy boss for the Business Software Alliance, is leading the case against him -- but arguing that right now isn't going to do him any favors. MacBride is a smart guy, and he'll use all of this against Dotcom.
I think there are a lot of serious issues raised by this case, and I think the government has massively overreached in its indictment. But I do worry (quite a bit) that Dotcom's decision to take his arguments to the press first may backfire and could taint the case, where having strong legal arguments to counter the government's questionable claims are really really important.