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Megaupload, the Copyright Lobby, and the Future of Digital Rights: The United States vs. You (and Kim Dotcom)

Megaupload, the Copyright Lobby, and the Future of Digital Rights: The United States vs. You (and Kim Dotcom)

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Published by Robert Amsterdam
This white paper is authored by lawyers Robert Amsterdam and Ira P. Rothken concerning the U.S. government's unlawful attack on the cloud storage service provider Megaupload.
This white paper is authored by lawyers Robert Amsterdam and Ira P. Rothken concerning the U.S. government's unlawful attack on the cloud storage service provider Megaupload.

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Categories:Types, Business/Law
Published by: Robert Amsterdam on May 07, 2013
Copyright:Attribution Non-commercial

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07/10/2013

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2
The
United StatesYou (
and
Kim Dotcom)
vs
Executive Summary
The United States Congress [...] is now incapable o passing laws without permissionrom the corporate lobbies and other special interests that control their campaigninances.
 Al Gore
Former Vice President o the United States
1
Viewed up close, copyright bears little resemblance to the kinds o property that conservatives value. Instead, it looks like a constantly expanding government  program run or the beneit o a noisy, well-organized interest group.
Stewart Baker
Former Assistant Secretary or Policy at theDepartment o Homeland Security, under President George W. Bush
2
Those who count on quote ‘Hollywood’ or support need to understand that thisindustry is watching very careully who’s going to stand up or them when their job isat stake. Don’t ask me to write a check or you when you think your job is at risk and then don’t pay any attention to me when my job is at stake.
- Chris Dodd
Chairman o the Motion Picture Association o America andFormer Senator o the United States
3
The criminal prosecution o Megaupload and Kim Dotcom is purportedly the
“largest copyright case in history,” 
involving tens o millions o users around the world, and yet it is ounded on highlydubious legal principles and apparently propelled by the White House’s desire to molliy the motionpicture industry in exchange or campaign contributions and political support.The U.S. government’s attack on the popular cloud storage service Megaupload and the dramatizedarrest o Kim Dotcom, the company’s principal ounder – together with the seizure o all theirworldwide assets – represents one o the clearest examples o prosecutorial overreach in recenthistory. One day aer the U.S. Congress ailed to enact the controversial Stop Online Piracy Act(SOPA), the executive branch o the U.S. government commandeered Megaupload in a coordinated
“The Future: Six Drivers o Global Change,” 
by Al Gore, Random House, 2013.Mr. Baker’s quote was irst published in the Wall Street Journal in 2004. The excerpt is cited by the author in a blogpost here:
“Hollywood Lobbyist Threatens to Cut Of Obama,” 
321
 
3
The
United StatesYou (
and
Kim Dotcom)
vs
global take-down, and drew battle lines between digital rights advocates, technology innovatorsand ordinary inormation consumers on the one side, and Hollywood and the rest o the CopyrightLobby on the other.Megaupload operated or seven years as a successul cloud storage business that enabled tens o millions o users around the world to upload and download content o the users’ own choosing andinitiative. The spectrum o content ran rom (to name just a ew) amily photos, artistic designs,business archives, academic coursework, legitimately purchased iles, videos and music, and – aswith any other cloud storage service – some potentially inringing material. Despite Megaupload’slawul uses, the U.S. government has charged the company and its executives under the RacketeerInluenced and Corrupt Organizations (RICO) Act, and has branded the company, its personnel andits tens o millions o users a “criminal enterprise” dedicated solely to inringing U.S. copyright laws.The U.S. government’s case against Megaupload is grounded in a theory o criminal secondarycopyright inringement. In other words, the prosecution seeks to hold Megaupload and its executivescriminally responsible or alleged inringement by the company’s third-party cloud storage users.The problem with the theory, however, is that secondary copyright inringement is not – nor has itever been – a crime in the United States. The ederal courts lack any power to criminalize secondarycopyright inringement; the U.S. Congress alone has such authority, and it has not done so.As such, the Megaupload prosecution is not only baseless, it is unprecedented. Although the U.S.government has previously shut down oreign websites engaged in direct inringement, such as thesale or distribution o inringing material, never beore has it brought criminal charges against acloud ile storage service because o the conduct o its users. Thus, the Megaupload case is the irsttime the government has taken down a oreign website – destroying the company and seizing all o the assets o its owners (and the data o its users), without so much as a hearing – based on a crimethat does not exist.To make matters worse, in order to persuade other countries to cooperate with the take-down, theU.S. government misled them into believing that Megaupload was involved in direct inringement.One o many such examples involved applications or warrants to search and seize Megauploadcomputer servers in Canada. In those applications, the U.S. government misled the Canadianauthorities by stating that the U.S. was prosecuting Megaupload or operating and administeringwebsites that “reproduce and distribute” inringing material. Even i the U.S. government hadbelieved Megaupload was reproducing and distributing inringing material (which it was not), thegovernment was certainly aware that the criminal charges it was prosecuting were not based onany such allegations. Further, the U.S. government made those misrepresentations to Canadianauthorities without any advance notice to Megaupload, meaning that nobody was present to reutethem.

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