Kim DotCom's Lawyer's White Paper on Bogus Charges

By Jeralyn, Section Corruption Cases
Posted on Thu Dec 05, 2013 at 08:42:00 AM EST
Tags: Kim Dotcom, MegaUpload (all tags)

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Here is Kim Dotcom's lawyers' new White paper on why the charges against him are untenable:

The U.S. government’s case against Megaupload is grounded in a theory of criminal secondary copyright infringement. In other words, the prosecution seeks to hold Megaupload and its executives criminally responsible for alleged infringement by the company’s third-party cloud storage users.

The problem with the theory, however, is that secondary copyright infringement is not – nor has it ever been – a crime in the United States. The federal courts lack any power to criminalize secondary copyright infringement; the U.S. Congress alone has such authority, and it has not done so.

[More...]

As such, the Megaupload prosecution is not only baseless, it is unprecedented. Although the U.S. government has previously shut down foreign websites engaged in direct infringement, such as the sale or distribution of infringing material, never before has it brought criminal charges against a cloud file storage service because of the conduct of its users. Thus, the Megaupload case is the first time the government has taken down a foreign website – destroying the company and seizing all of the assets of its owners (and the data of its users), without so much as a hearing, based on a crime that does not exist.

The extradition hearing has been postponed until sometime in 2014. As to who will win, my money, since the onset of the case, has been on Kim Dot Com. I see no reason to change it now.

In other Dotcom news, Kim says NZ police affidavits show the use of PRISM for surveillance.

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Kim DotCom's Lawyer's White Paper on Bogus Charges | 14 comments (14 topical)

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The US government in this case... (5.00 / 1) (#1)
by Dadler on Thu Dec 05, 2013 at 08:33:49 AM EST

...seems to be living in a fantasy world. Just sticking their chests out as if acting tough will somehow get them anything in a courtroom. Hollywood campaign cash goes a long crazy way, I guess.

The scary part is.... (5.00 / 1) (#3)
by kdog on Thu Dec 05, 2013 at 09:22:08 AM EST

it works sometimes and gets them plea deals from those accused of non-crime who don't have the resources of a Kim Dotcom to fight bullsh*t charges.

This time they f*cked with the wrong rich guy.


Yep (none / 0) (#4)
by Dadler on Thu Dec 05, 2013 at 10:22:48 AM EST

That's why I really kind of love it, were it not for the fact they are making the big (BIG) guy's life miserable.


: Yep yep... (none / 0) (#5)
by kdog on Thu Dec 05, 2013 at 10:30:17 AM EST

he'll never get all the time lost to these hassles back, or his business whole again...but he will be vindicated unless the justice system is even more corrupted than we know.

US (5.00 / 1) (#11)
by Mikado Cat on Sat Dec 07, 2013 at 04:25:58 AM EST

plan I suspect was intended for short term benefits. Megaupload got lots of press, but other huge operations also occurred that were unprecedented, such as the Ukraine seizure of Demonoid servers (torrent trackers with no content). Ukraine was looking a some major quid pro quo for doing it, something trade related I think, but its a sure guess a LOT of money changed hands.

Since then we have seen a wave of the chilling effect as one after another have poofed, but the largest most blatant copyright infringer, China, goes untouched.

I wonder if it could be something as simple as failure to cooperate with some NSA back door etc?


My Theory Has Always Been... (none / 0) (#2)
by ScottW714 on Thu Dec 05, 2013 at 08:37:47 AM EST

...that the Feds were working with the assumption that SOPA/PIPA would pass Congress and become law. They were too invested to call off the raid the day before when Reid postponed the vote.

Had both passed, this would be a no brainer for the government, but it didn't and now they don't know what in the hell law he actually broke, which seems like none.

The question in my mind isn't will kim.com be acquitted, it's how many dollars is he going get from Uncle Sam for this BS and all the copyright data they destroyed on those servers.

I believe Reid shelved the vote on both on January 19th because of public outrage and the internet blackout, which coincidentally is the day before kim.com's hacienda was raided.

How is your theory consistent (none / 0) (#6)
by Peter G on Thu Dec 05, 2013 at 10:48:44 AM EST

with the Constitutional principle that conduct cannot be prosecuted unless it was clearly illegal at the time that the defendant committed his/her challenged acts. A prosecution cannot be based on a later-enacted law. That's the heart of the Ex Post Facto Clause.


Talk to Those Fools... (none / 0) (#7)
by ScottW714 on Thu Dec 05, 2013 at 11:32:46 AM EST

...and as mentioned it's only a theory. But had SOPA passed they could easily prosecute him using it.

I still don't understand how the US can legally collect 5 billion the phone records of people not in the US, daily, or how they can arrest people in other nations for breaking US law, or how we can invade a sovereign nation, or torture and refuse to charge them with a crime with detaining them, infidelity, or even how NYPD can legally stop and frisk anyone without violating the Constitution and/or international law.

This is your field making all of it so, not mine.


: I don't understand how any of those things (5.00 / 2) (#10)
by Peter G on Thu Dec 05, 2013 at 01:04:02 PM EST

are supposedly justified either, Scott. None of them are lawful, imho.

: Surely... (none / 0) (#8)
by kdog on Thu Dec 05, 2013 at 11:38:47 AM EST

Peter knows better than most that our laws/rules are strictly applied to the people, and their defense lawyers. The state and their prosecutors, not so much. Different rules, different fools.

It's also just whack-a-mole (none / 0) (#9)
by magster on Thu Dec 05, 2013 at 11:44:28 AM EST

as there is no shortage of 3rd party "copyright infringement" sights since the demise of Megavideo using cloud storage from which any of us could watch a show or live stream a sporting event. The cable tv companies are charging an insane rate for obsolete services.

I disagree, there is a change in the face of pirac (none / 0) (#12)
by Mikado Cat on Sat Dec 07, 2013 at 04:42:01 AM EST

Piracy isn't what it used to be, several changes I've talked with people about include;

Nothing like the old days where access was easier and faster than going to Amazon with a gold card.

Many pirates have reformed, stopped uploading and/or downloading infringing material. Some avoid even legal material due to connections with illegal sites. Whole "segments" of stuff are now hard to find or just not out there anymore.

The level of malware, trojans, keyloggers, rootkits, etc has skyrocketed. It is really dangerous to download from many places that used to be well maintained.

Seems to me the situation has gotten marginally better for some copyright holders, but much much worse for the general public whether they download content or not as the kid next door could download something dangerous and pass it to somebody else hiding on a floppy or file with homework assignments or a mp3.

: Way Off Track (5.00 / 2) (#14)
by ScottW714 on Mon Dec 09, 2013 at 12:38:08 PM EST

...there is literally a never ending list of sites, like Legal Sounds and Memphis Members, that sell very cheap music/movies. I don't want to say illegal, because the law is unclear about buying it. Granted the price is a give away, but to date it's looked at like buying a CD in China and bringing it home, how are you know the artist/label isn't getting their share.
SOPA/PIPA would have tied up those loose ends. the reason file sharing is so easy to prosecute is people are knowingly sharing their music, in those cases it's not the downloading that go after, it's the sharing because it's obvious what they are doing.
But it's really hard to prove someone knowingly bought copyrighted materials in which no royalties were paid. Obviously this isn't legal advise, just what I have read over the years as to how these kinds of sites remain open.
I will say this, I download movies for my tablet in formats that simply aren't available from the studio. I have a ton of DVD's so I feel like I already paid for it and I don't have the time to deal with the copyright BS, and then rip it to say .mkv format. Much simpler to pay $2 and have it downloaded in a couple minutes. Same with CD's I already own, the time it takes to rip them to .mp3 is ridiculous, plus I want all the meta-data and I shouldn't have to buy it again, and again, and again, just because there is a new technology. I bet I have purchased Dark Side of the Moon 15 times in various formats, and to me once I buy it, I own the rights and should be able to put it in whatever media format I was, from Cassette to CD to MP3 without forking over more cash.
Plus many of their copyright protected formats effect quality and size, both of which are fairly important to me. I have unopened CD's at home I bought because I want the folks to get there cut, but I don't want buy in some crappy format like AAC.
But the government is trying to go after kim.com for having this stuff on the servers they leased from one company and leased to individuals. They aren't accusing him of buying/selling/distributing the materials. They are going after him for what other people do using his equipment. IOW they expected him to make sure copyrighted materials weren't on the servers which to be is beyond ridiculous.

: I finally convinced my wife's uncle, (none / 0) (#13)
by Mr Natural on Sat Dec 07, 2013 at 09:59:24 AM EST

at the age of seventy-something plus, to stop with the bittorrent b/s. Netflix only from now on.
In other words, it ain't just kids who want free stuff.