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| Megaupload Wins Crucial Evidence Disclosure Battle With US Govt. Posted: 29 May 2012 02:18 PM PDT
Charges in the indictment include engaging in a racketeering conspiracy, conspiring to commit copyright infringement, conspiring to commit money laundering, and two substantive counts of criminal copyright infringement. The prosecution is hoping to have the defendants extradited to the U.S., but following a ruling by New Zealand District Court Judge David Harvey today, this will prove to be more complicated than expected. In an 81-page decision, Judge Harvey ruled on a request from Megaupload’s legal team for the U.S. Government to reveal what evidence they have on the defendants. In other words, Megaupload wants to see the extent to which the U.S. authorities can back up their criminal charges. The U.S. Government objected to the request arguing that Megaupload doesn’t have the right to disclosure in the extradition process, but Judge Harvey disagreed. He ordered the disclosure of all documents related to the alleged criminal acts, not just those in the possession of New Zealand police, but all files held by the FBI and other U.S. authorities as well. Much of today’s ruling looks into procedural issues, but Judge Harvey also makes some interesting remarks on the way the U.S. is handling this case. He notes that if the U.S. has its way the extradition process would be merely “administrative”, as opposed to “judicial”. This would interfere with the rights of the accused, who according to Judge Harvey should have the right to review the evidence so they can argue against it. “In my view there must be fairness and the hearing and balance must be struck, otherwise the record of case becomes dominant virtually to the exclusion of everything else and places the extradition process in danger of becoming an administrative one rather than judicial,” the verdict reads. The Judge further grants disclosure of evidence related to all the criminal charges, and notes that the allegations of the U.S. Government are rather complex. For example, the authorities are applying civil copyright concepts in a criminal context. Furthermore, he notes that the copyright infringement changes are the cornerstone, in the sense that the money laundering, wire fraud and racketeering charges are all based on the alleged copyright infringements. “There is a complex factual matrix and justiciable issues are complicated by the fact that the United States is attempting to utilize concepts from the civil copyright context as a basis for the application of criminal copyright liability which necessitates a consideration of principles such as the dual use of technology or what they described as significant non-infringing use,” Judge Harvey writes. “The existence of criminal copyright charges is a keystone to providing the unlawful conduct element of the racketeering, money laundering and wire fraud charges.” Judge Harvey concludes with an order for the US Government to hand over all documents related to the charges within 21 days. This is a significant victory for Megaupload, and not only because they can now build a better defense against the extradition as well as any U.S trial. The comments made by Judge Harvey also suggest that without proper evidence of criminal copyright infringements against the accused, there’s not much left of the case. And as Kim Dotcom revealed earlier, this evidence might not be that strong. Source: Megaupload Wins Crucial Evidence Disclosure Battle With US Govt.
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| Should Websites Charge A Fee To Process Copyright Takedowns? Posted: 29 May 2012 05:33 AM PDT The publication last week of Google’s Transparency Report gave us a clearer idea of the pressures the search engine is under from copyright holders. The report revealed that in a single month Google was asked to take down an astonishing 1.2m links to allegedly infringing material. As a US company Google must comply with the requests in order to maintain its DMCA Safe Harbor protection. The reports stops short of revealing the associated financial costs but considering the scale of the operation it’s safe to say that they’re significant. So who should pay? This interesting issue has been raised not by Google, but anti-piracy company Takedown Piracy whose recent dispute with a torrent site spilled over into the public domain a few hours ago. “Piracy site uses extortion with copyright holders” says the blog headline penned by Takedown Piracy owner Nate Glass. “Recently, we sent a fully DMCA compliant notice to a large torrent site. While our notice was accurate and fully DMCA compliant, we did forget one thing. The lump of money the piracy site demanded,” Glass writes. TorrentFreak recognized the torrent site in questions as H33T.com. It’s worth noting that H33T is outside US jurisdiction so is not required to comply with the terms of the DMCA. They will take down links but they have a set of terms and conditions. The fee is $50 USD charged per takedown item in each request regardless of number of requests to cover reasonable administration expenses accounted to work we undertake on our network at your behest. If the list of items for takedown ever exceeds 500 total items in a single request then we will negotiate a bulk rate payment schedule Glass is not amused by the business proposal. “So not only does this site profit by selling ads using other people's hard work, but in the event you want your property removed from their website, it's going to cost you $50 for EACH instance of copyright infringement,” he continued. Admittedly it is fairly out of the ordinary for a torrent site to attach a fee to a copyright takedown, but the admin of H33T told TorrentFreak that it’s simply a question of being practical. “Nothing in this world is for free and where the network service provider, in this case h33t, is a third party to the rights holder’s complaint against the uploader, then it is only proper that costs are properly allocated to the party who is incurring the costs,” he explained. Thanks to the DMCA, US service providers have had no choice but to carry these costs themselves, but what about sites not subject to US law? H33T says it is “established practice” for rights holders and network service providers to negotiate the burden of costs. While there are indeed prominent examples of this around the world, what they all have in common is disputes over who will pay for what. The fledgling “3 strikes”-style regime introduced in New Zealand recently was plagued with argument over money and in the end it was decided that the ISPs – the “network service providers” referenced by H33T – should be paid $25 NZD by rightsholders when they send a warning to a customer. The UK’s now-delayed Digital Economy Act is also the center of a costs argument between ISPs and rightsholders, and negotiations in Australia aren’t going well either. “The rightsholders want all the benefits of remedial action, but want the ISPs to foot the bill. ISPs don't want to pay to protect the rights of third parties,” iiNet chief regulatory officer Steve Dalby said recently. And of course this is where it all gets quite interesting. Takedown Piracy are a piracy takedown service – they get paid by rightholders to have links to infringing content taken down. Takedown Piracy’s entire business model exists on the removal of links, a service that H33T is demanding a fee for – just like Takedown Piracy does. “How hypocritical can Takedown Piracy be?” questions H33T. “Their business model is to charge the rights holder a fee to make takedowns happen. But when the third party, in this case h33t, responsibly engages with them to expedite the takedown they refuse to apply the funds the rights holders have given them for the purpose. It’s outrageous and clearly a major wrong against their clients.” Aldor Nini from anti-piracy company Acromax GmbH says that in some instances sites should be able to charge for takedowns, but with conditions. “Sites may charge if their business is not based on copyright infringements and they are not already earning money from the illegitimate usage of infringing material,” Nini told TorrentFreak. Interestingly, H33T informs us that the site responds to all takedown requests using the emails it is supplied with, but in the 6 months since the $50 takedown policy was put in place, only in two instances has he received a response. But is $50 per takedown good value for money? It is if the one-download-equals-one-lost-sale mantra is applied, say H33T. “What we see here is that the MAFIAA claim that a download equals a lost sale is absolute bull crap. If it were true, using MAFIAA math, $50 for a takedown is an extremely cheap and effective price to pay for 10s of thousands of lost sales. “The MAFIAA narrative is deceit, lies and more lies.” Source: Should Websites Charge A Fee To Process Copyright Takedowns?
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As widely reported, Megaupload founder Kim Dotcom and the rest of the "Mega Conspiracy" stand accused by the US Government of running a criminal operation.
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