from the out-of-options dept
A few days ago, it came out that programmer Andrus Nomm had flown to Virginia to be arrested. Nomm had worked for Megaupload in Europe and had been listed in the criminal case against Megaupload and its various employees. His name had mostly fallen off the radar, since he wasn’t down in New Zealand with most of the rest of them. It was obvious in his move to come to the US and be arrested that he must have worked out a plea deal with the feds, and that’s confirmed today with him pleading “guilty” to criminal copyright infringement with prosecutors asking for a year and a day in prison, which the court granted. Kim Dotcom noted that he has “nothing but compassion and understanding for Andrus Nomm.”
It seems clear that Nomm agreed to some sort of deal to get the overall threat off of his back and to be done with it. It’s very, very, very likely that part of the “deal” is to testify against Megaupload and all of his former colleagues. But, reading through the Justice Department’s self-congratulatory pat on the back over this plea deal and the indictment against the Megaupload team, I’m still confused as to how this is a criminal charge at all. It seems like he may very well be guilty of civil copyright infringement in personal downloads that he admitted to. But the rest… I don’t see how it meets the requirements of criminal copyright infringement. Here’s the DOJ statement:
In court papers, Nomm agreed that the harm caused to copyright holders by the Mega Conspiracy?s criminal conduct exceeded $400 million. He further acknowledged that the group obtained at least $175 million in proceeds through their conduct. Megaupload.com had claimed that, at one time, it accounted for four percent of total Internet traffic, having more than one billion total visits, 150 million registered users and 50 million daily visitors.
In a statement of facts filed with his plea agreement, Nomm admitted that he was a computer programmer who worked for the Mega Conspiracy from 2007 until his arrest in January 2012. Nomm further admitted that, through his work as a computer programmer, he was aware that copyright-infringing content was stored on the websites, including copyright protected motion pictures and television programs, some of which contained the ?FBI Anti-Piracy? warning. Nomm also admitted that he personally downloaded copyright-infringing files from the Mega websites. Despite his knowledge in this regard, Nomm continued to participate in the Mega Conspiracy.
Of course, the statements about how much “harm” was caused, and even how much money Megaupload made are meaningless. Pretty much everyone knows that anything signed in a plea agreement doesn’t mean anything. The more important question is how the rest of it is criminal copyright infringement. For it to be criminal, it has to match certain criteria, and working on a software platform that is used for others to infringe certainly does not reach that level. Nor does knowing that some movies — uploaded by others — with the FBI anti-piracy warning message were uploaded (that message, by the way, has basically no legal power). Finally, as for his own personal downloads, those, too, would be civil infringements, not criminal.
And it seems like that may be the only thing he really did wrong from the explanation. He worked for a site that some people used for infringement — but that’s true of lots of internet companies. And he personally downloaded some stuff — which is also true of a huge number of people. How does he end up in jail for a year other than because the US government came down on him, and he had no other option?
Frankly, this is embarrassing for the DOJ. I wouldn’t be putting out a press release for them. Yay, they railroaded a programmer who worked on an internet platform into a “guilty” plea and a year in jail because he helped build a cloud computing system not particularly different than many others out there? What sort of “law enforcement” is this?