from the laying-out-the-arguments dept
A bunch of folks have been pointing us to the new “whitepaper” released by Kim Dotcom, which lays out two key things: why the lawsuit against him is a complete legal sham and also why it was driven by a corrupt connection between the US government and the MPAA. The paper is written by his lawyers, including Ira Rothken and Richard Amsterdam (whose addition to his legal team was discussed a few months ago). Frankly, most of this reads like the lawyers refining the eventual motion-to-dismiss filing that they expect to submit to the federal court (should it ever get there). The majority of it is taken up with the clear legal statements as to why the lawsuit is based on very questionable theories. The main point, as we’ve discussed before in the context of other cases, is that the DOJ seems to have completely made up a legal theory of contributory copyright inducement. While there is such a thing in civil contexts, it’s not there in criminal contexts. Supporters of the DOJ will argue that there is aiding and abetting, but the rules there are quite different and, again, it doesn’t look like Dotcom and crew would be guilty of such a charge.
The overall point is clearly stated in the whitepaper. Here’s a snippet:
The fact of the matter is that the notion of criminal liability for secondary copyright infringement
does not exist in U.S. law. The attempt by prosecutors to expand criminal liability for secondary
infringement by couching it as “aiding and abetting” or “conspiracy” goes against established
precedent in case law and repeated positions taken by the U.S. Congress.
The Copyright Act creates civil and criminal liability for various acts of copyright infringement, but it
does not expressly give rise to liability for infringement committed by third parties. Furthermore,
the U.S. Supreme Court has defined specific circumstances under which service providers may be
held civilly liable (i.e., not criminally responsible) for direct copyright infringement by third parties,
such as distributing “a device with the object of promoting its use to infringe copyright.”
The fundamental legal problem with this aspect of the government’s case is that only Congress can
create new criminal liability; judges cannot. Previous instances in which courts have imposed civil
liability for secondary copyright infringement – based on application of common law principles –
do not apply in criminal proceedings, as federal crimes are “solely creatures of statute.” Whatever
authority the courts may have had to recognize a contributory theory of copyright liability in the
civil context, the courts simply have no power to impose a basis for criminal liability beyond what is
expressly authorized by statute.
One surprising inclusion is that the whitepaper supports this well known point — that courts can’t create new criminal liability — by extensively quoting legal analysis from Jay Prabhu from years ago. This is a bit of dagger twisting by Dotcom’s legal team. Prabhu, well after writing those analysis, took a job in the Justice Department, and eventually was put in charge of the DOJ’s “cybercrime” unit — and has been a key prosecutor against a number of copyright cases, including various domain seizures. In fact, he’s the one who signed the indictment against Dotcom. To use his own words against the case is amusing.
The filing also lays out a number of arguments that we’ve seen before, including a further explanation of how the DOJ was being totally disingenuous in arguing that Megaupload refused to remove works it knew were infringing, by pointing out the files they mentioned were ones that Megaupload has clearly been asked to preserve as part of an investigation into copyright infringement.
There’s also an interesting and more detailed than previous discussed defense on the point about Megaupload’s rewards program. We had pointed out how silly it was to use this element against Megaupload, since it was a general rewards program to get people to make use of its cloud storage, and there was nothing in the program that induced more infringement (in fact, it seemed like a great tool for a content creator to make money by releasing his or her own works via the rewards program). On this, Dotcom’s whitepaper points out not just those points, but also (1) the fact that lots of other sites have similar rewards programs (2) specific features Megaupload included in its rewards program that made it bad for infringement (including file size limits and required identification) and (3) the fact that they had dropped the program long before the indictment.
While I do wonder how wise it is to basically give the DOJ their opening brief way before they would actually see it in court — and giving them a lot more time to respond to it — there are a few reasons why this move could make sense. First, they’re so damn confident in their argument that it doesn’t really matter. That may be risky. Another point may be that it signals to the DOJ that they may want to look for ways to extricate itself from the case quickly, because it’s not going to go as easy as the DOJ has assumed from the beginning. The other issue may be that Dotcom and his legal team realized long ago that the court of public opinion probably matters more in the long run than the federal court system in the US.
To that end, of course, the paper has a second section, which has received most of the attention: all about the supposed corrupt process that brought about the indictment. When Megaupload hired Richard Amsterdam, he specifically noted that the details of the case suggested a typical “contract prosecution,” and the paper seeks to lay out that argument clearly, highlighting the close relationship between the Obama Administration (mainly via VP Joe Biden) and MPAA boss Chris Dodd.
Chris Dodd’s jump from the U.S. Senate into the cockpit of the MPAA was an equivalent move. As the
new Chairman and CEO of the MPAA, Chris Dodd improperly leveraged his friendship with Joe Biden
to achieve the MPAA’s objectives. Former Senator Dodd’s relationship with the Vice President– who
comes off manipulated, a cheerfully credulous facilitator – together with the Obama Administration’s
ravenous hunger for campaign contributions, has given the MPAA absolute control over how the U.S.
Department of Justice plays the game in enforcing copyright law. This capture is nowhere more
clearly demonstrated than in the Megaupload/Kim Dotcom prosecution.
Frankly, while this section is getting the most attention, I actually find it to be the weakest and most poorly supported part of the paper, which would probably be more compelling without it. I don’t doubt that the close connections between the MPAA and various folks in the DOJ and in the VP’s office contributed to Megaupload being a target, but trying to make it out as anything more than that seems like a stretch. Yes, the MPAA complained regularly about Megaupload, and that clearly helped put a target on its back. But, it’s quite likely that the over-eager folks at the DOJ ran with this one on their own. The MPAA (with the help of the press) had worked over time to paint Kim Dotcom as “Dr. Evil” of the copyright world. Everything about the process of taking down Megaupload screams of a bunch of feds who totally bought into the theatrical version of the MPAA’s vision, without much effort to understand what was really happening. The myriad mistakes and sloppiness in the case really suggest that the DOJ assumed that the stories the MPAA told were so accurate that everything about this case would be a layup. The investigation, the indictment, the raid, the handling of evidence — all of it was done in a sloppy way — as if they expected no one would challenge any of it.
I’m sure there was influence and pressure that went into this, but painting it as a case where Chris Dodd called up Joe Biden and said, “Destroy Megaupload” is probably a massive exaggeration. Instead, it seems quite likely that MPAA folks just kept playing up the theatrical version of Kim Dotcom as evil (and, Dotcom himself actually helped promote this sort of view of himself at times as well…), and then the DOJ’s imagination combined with its general over-aggressive nature towards any copyright issues just sort of took over from there.
Either way, the paper is definitely a worthwhile read. I’m sure a group of folks at the DOJ are taking their time reading through it quite carefully. I imagine that we’ll eventually see their response in court.
Filed Under: chris dodd, copyright, corruption, criminal contributory infringement, indictment, ira rothken, joe biden, kim dotcom, richard amsterdam, whitepaper