When will the US DoJ hire a decent PR firm? Again and again during these three years they've made cock-ups that push people (like myself) towards supporting Dotcom even if we don't particularly like the guy, and even if we think for the actual charges he's likely in the wrong.
> In the forfeiture case, prosecutors will argue why Dotcom’s claim on the frozen assets should not be allowed—and therefore forfeited to the US government—under the "doctrine of fugitive disentitlement." That idea posits that if a defendant has fled the country to evade prosecution, then he or she cannot make a claim to the assets that the government wants to seize under civil forfeiture.
Hooray, a loophole in the laws that might let them seize his assets: call him a fugitive! Even though he hasn't visited America one single time in his life. And even though he is still in the country where he calls home, and has done for more than a year before this case started.
Maybe it's not the DoJ's fault, maybe Dotcom and his lawyers (and PR) are really, really good. But nearly every story in the past 3 years has made him look good and them look bad, which shouldn't be the case when you've got a government department charged with delivering justice against a guy with a track-record of being an asshole and breaking the law.
It doesn't help their case in my mind that they probably broke the law with the seizures they performed: I was using Megaupload to store backups and distribute files I legally owned, such a game maps or documents.
During their raids, they seized the funds used to provision the servers, failed to preserve the data, went so far as to prevent efforts on the part of Megaupload to return the data to me, and failed to allow for any sort of process for me to claim it before the servers were destroyed.
That data wasn't specifically targeted in a forfeiture action, nor was it specifically accused of being infringing. The US government simply destroyed my data as part of their raid against Megaupload without any concern for the fact I was engaged in legal business with them, and simply using them for remote storage.
Nevermind that they induced a foreign government to illegally spy on one of their residents as part of a copyright enforcement action. That's just hideously ugly.
I'm curious why think he's guilty of the charges against him. Now, he's obviously guilty of civil copyright violation and can probably be sued into bankruptcy. But criminal copyright infringement requires mens rea and internal company transcripts show that the people at MegaUpload thought that they were within the law on some technicalities. They weren't but a reasonable belief that they were means that this wasn't criminal copyright infringement.
Not only am I not a lawyer, I also don't know/remember many of the details of this case. And I said likely, not definitely, guilty in my opinion.
Regarding mens rea, I imagine it's tougher to argue that you thought you were legal technically than to argue you had no idea you might be breaking the law? E.g. Someone who has never heard of magic mushrooms but find then growing and sells them has a better chance of not being convicted for selling illegal drugs than someone who knows and had researched the laws and thinks they have a technicality to allow them to sell? Of course that's assuming they were wrong about the technicality.
Just, in case it's of interest, statements from Kim suggest that he was trying to comply with the DMCA. That all major studios has direct access to the platform to delete links. I personally find the issues unclear, as obviously to a degree as he suggests below, Youtube and other providers are in a similar position:
"Well, of course everybody knows that the internet is being used for legitimate and illegitimate uses. I think every online service provider has the same challenges that we have. YouTube, Google, everybody is in the same boat. So what you need to understand here is that we provided the content owners with an opportunity to remove links that were infringing on their rights. So, not only did they have an online form where they could take down infringing links, they had direct delete access to our servers so they could access our system and remove any link that they would find anywhere on the internet without us being involved. They had full access and we’re talking about 180 partners, including every major movie studio, including Microsoft and all big content producers and they have used that system heavily and you need to understand that that system was not even something that was even required by the law. We provided that voluntarily and they have removed over 15 million links."
An objection that I heard mentioned previously: removing the links didn't remove the actual content, which could be available through another link (or hundreds of links, some in private forums, etc.). So actually getting content off the platform was tough. Mentioned in: http://arstechnica.com/tech-policy/2012/01/why-the-feds-smas...
On the other hand, who can say whether content is illegal in all contexts. Perhaps your pirated movie is my legitimate backup.
Yes, I guess it could be argued that this is part of the way they managed their deduplication system, and that once all links had been removed the context would be removed. Certainly similar arguments could probably be used for copyrighted material on Dropbox, and I imagine there maybe a deduplication on Youtube, and similar issues also.
If this really is the only issue it seems like quite a weak case to me, as with more diligence the copyright holders could have removed all copies. But I guess we'll never know all the details.
Well, it literally cost a user nothing to create a new link to the same data. Meanwhile the copyright holder would have to submit a DMCA take down for every single link before a new link could be created. Also, MegaUpload changed their policy to only allow one request at a time. So you couldn't, for example, submit a list of the thousand links to your movie. You'd have to submit 1,000 DMCA take downs. I think it's pretty obvious they were doing everything in their power to drag their feet and facilitate copyright infringement.
Dragging your feet is a crime if it's reasonable to believe that the purpose of dragging your feet is to facilitate crime. And I think anyone with a brain recognizes that's what was going on.
Try to figure out how his service was fundamentally different than Youtube except for later being owned by superrich Google. Let's bet that Google earned more money by distributing unlicesed material than Kim could in 10 of his lives.
Then consider how much years Google needed to start to be even slightly effective. Wasn't that dragging the feet?
The justice for small guys and superrich is not the same. Kim is a small guy in this comparison.
No, google meaningfully acted to abide by the DMCA take downs and over time progressively improved its tooling to facilitate that. Mega did the exact opposite.
Not only was it reachable by the other links to the file, the file ID which had been DMCA'd could regenerate links via the premium account API. So warez sites could automatically regenerate megaupload links everytime a file gets a DMCA. Surely this is incriminating?
IANAL but I think not, he's still complying with the DMCA.
All Megaupload needed to do was allow copyright holders to play the cat and mouse game of takedowns to be within the law. A DMCA takedown doesn't have the oversight from a judge or anything, it can be totally wrong and there's really no reprocussions (as we've seen on youtube multiple times, this occurs frequently.)
You cannot expect Megaupload to delete the content from their servers, as their business is data retention. You also cannot expect Megaupload to flag files as DMCA'd and not allow them to ever be downloaded, the fact that their entire business model is people sharing content and the sheer amount of DMCA requests they recieve makes it impossible for them to investigate each case properly.
The DMCA protects him by simply allowing takedowns of a single link. The content can stay, and he can stay within the bounds of the law by some external individual creating an additional link to be inevitably DMCA'd again.
Parent was discussing mens rea ("guilty mind"). Essentially there are certain classes of crimes where whether or not you were of guilty mind (you knew or had reasonable suspicion that what you were doing was illegal) actually matters somewhat, usually for sentencing purposes.
Thinking that something might happen is not the same as having an intent to cause it to happen. That would make every reader of Cardinal Richelieu to have mens rea to any crime. I also know that by visiting HN I might cause enough drain on their servers that a server breakdown happens, yet I have no intention to cause that.
What the prosecutor might argue however, is that mens rea is not needed for cases of assisting criminal copyright infringement. This is what happened in the pirate bay trial, as the prosecutor brought up precedent cases in which an friend of an accused held up a window during a burglary, and got sentenced even if he was not aware what his friend was up to.
They don't need a PR firm. The US public as whole puts up with the lack of due process. They don't have a choice. There are different rules for different persons.
Uber and AirBnB are figuring out how to violate local laws. They are corporate persons and are not charged with conspiracy, racketeering or money laundering when spending the proceeds of illegal activities...even in the furtherance of such activity. Kim Dotcom is a natural person who has angered corporate persons. The full weight of the law must be used against him. That's how crowd control is maintained.
""Congress, initially as part of the War on Drugs but later expanded to include most federal offenses, criminalized almost every financial transaction that flows from funds that are the proceeds of ‘specified unlawful activity,’" Bruce Maloy, an Atlanta-based attorney and an expert in US extradition law, told Ars by e-mail.
"In simplest terms, if you possess funds from a crime and do anything with the money other than bury it in the ground or hide it under the mattress, you have committed a new crime. Spending the money is a new crime, opening a bank account is a new crime. These expenditures do not have to be in furtherance of the original crime, but my recollection is that here it alleged that they are. In short, throwing in a money laundering allegation is quite common in US federal indictments."
Page Pate, another Atlanta-based defense lawyer who has also worked on international extradition cases, agreed. "It's almost automatic to add money laundering charges to any offense whether it's drug-related or not," he said. "I haven't seen it that often in criminal copyright cases. The US has been very aggressive in adding money laundering and forfeiture in criminal cases.""
It means "money does not stink". A coin earned from scrubbing toilets spends the same as one earned from curing cancer, or one earned by selling contraband, or one given to charity, or one slipped into a g-string.
If you start spending your dollar bills, and someone demands to know where they came from, the only proper response is that it does not matter, because they are bearer instruments. All that matters is that the person who holds them is presumed to be the owner.
If the possibility that someone might steal your dollar bill and spend it for his own benefit galls you too much, don't use cash, or any other bearer instruments. Or keep receipts every time the notes change hands. But be assured that your mugger is taking your cash because he intends to spend it later, in lieu of performing multiple less-convenient crimes.
This business of pursuing someone for spending supposedly tainted money cannot end well. How is an ordinary person supposed to know when they should not accept it, when the money itself does not stink?
The crime rightfully attaches to the criminal, not to his cash.
I'm against the war of drugs, but not sure it's to blame here. A law criminalizing the use of illegally-gained funds is a useful law for them in general, and it happened that their big focus at the time was the war on drugs so that's where they'd get the most use from it. But as far as I know, it was never claimed to be only for the war on drugs, and they didn't attach it to the war on drugs as a smokescreen the way they attached the Patriot Act to terrorism.
I could be wrong about that, but as far as I'm aware it was an innocent connection to drugs. After all, if you are impeaching civil liberties you may need a smokescreen like drugs or terrorism, but making it illegal to use illegally-gained funds is something I suspect most US citizens would be OK with immediately without the need for deception.
So how US managed to survive without that law for all the years? I can't imagine the law was necessary for anything, except that it allowed US to prosecute those who'd be off the hook otherwise. So yes I do believe it was the "War on Drugs" peddled as the rationale for the law: "look these drug guys are slipping away, we have to make a new law and get them with it."
A lot of the financial transaction laws are contemporaneous with RICO, and were aimed at organized crime which is as a huge problem back then. Mafia families were conducting hits in midtown Manhattan back in the 1970's, in highly public places like high end restaurants. This is pre-1980's escalation of the drug war too.
I am not entirely sure that it is necessary to charge people twice for the same thing. If someone robs a bank, it is to try and spend that money. Making it an extra crime of spending the money isn't going to stop people from trying to spend the money. That is what the money is for. What it does do, is encourage the bank robber try and get other people to spend the money on their behalf, to try and offload those potential charges, so corrupting and jailing an ever widening circle of people.
My argument isn't that the law is good/bad (I don't know much about it, other than what was in this Ars article), just that I think they wanted the law to make it easier to catch criminals in general and it just so happened the criminals at the top of their list were drugs related, rather than the implication that the war on drugs led to this law.
With a bit more knowledge I could certainly be persuaded (not that it matters) into thinking this additional law is either good or bad for society - and I'm someone who supports the decriminalization (and probably the legalization, but my mind isn't quite made up on that) of all drugs, so purely within the scope of the war on drugs I'm against any law that furthers it.
Saying "making it illegal to use illegally-gained funds is something I suspect most US citizens would be OK with", is making an argument that the law is good in the eyes of US society, even if it doesn't state your specific position.
But we aren't starting from a position of knowing that a majority of society agrees, which is my point. If you state that you don't know much about x, so have no opinion, but believe that most reasonable people believe y about it, then you still are stating an opinion about x, even if you are doing it at one level removed by saying what you think other people might think.
I think that a majority of society thinks about law and order through an entirely simplified lens, and would see such a law through said lens without considering the actual implications of it. The idea that "money came from bad people doing bad things, so we should punish them" being the only really "logic" here.
Much in the same way that you can skew poll results based on the way that you phrase a question. For example, years ago there was a poll about whether or not people wanted ala carte cable channels. The question they were asked was, "Do you want more choice or less choice in cable programming?" Obviously people want more choice, but this answer was associated (by the pollsters) as being against ala carte options for cable.
Tons of money to fight the extradition + him being good at exploiting the US gov hate of the people to make himself look like a freedom fighter instead of the greedy scumbag that he is via well done PR campaigns.
> In the forfeiture case, prosecutors will argue why Dotcom’s claim on the frozen assets should not be allowed—and therefore forfeited to the US government—under the "doctrine of fugitive disentitlement." That idea posits that if a defendant has fled the country to evade prosecution, then he or she cannot make a claim to the assets that the government wants to seize under civil forfeiture.
Hooray, a loophole in the laws that might let them seize his assets: call him a fugitive! Even though he hasn't visited America one single time in his life. And even though he is still in the country where he calls home, and has done for more than a year before this case started.
Maybe it's not the DoJ's fault, maybe Dotcom and his lawyers (and PR) are really, really good. But nearly every story in the past 3 years has made him look good and them look bad, which shouldn't be the case when you've got a government department charged with delivering justice against a guy with a track-record of being an asshole and breaking the law.