MegaUpload users plan to sue the FBI over lost files
torrentfreak.com
torrentfreak.com
1. The US government has sovereign immunity (except where specifically waived by law) for virtually all its official acts, unless those acts violate the law or constitutional rights.
2. The supreme court has affirmed in a somewhat similar case, Kosak v. US, 465 U.S. 848 (1984), in which a set of paintings were detained (and possibly slightly damaged) by Customs officials. More recently, the core holding in Kosak was affirmed in Dolan v. US, a case regarding a specific waiver of immunity for the US Postal Service (though the lower court was reversed).
3. In a recent series of cases on criminal law (Medellin v. Texas, among others), a majority of the Court made it clear that they do not view decisions of the International Criminal Court as self-executing, meaning that they are to be followed without the ability for the Supreme Court to review them.
In other words, this is a real longshot. At some point, if no criminal case can be proved, the accused may get the servers back (and the users their files). But if convicted (or if the assets are subject to foreiture as the fruit of illegal activity), there's a good chance those servers are gone for good.
Besides, how would the FBI establish that the files were non-infringing and should be returned? In theory, the DMCA helps guard against this--had MegaUpload actually followed the takedown procedures, the government could have more faith that returning the servers to a surviving entity wouldn't put the same infringing content back online.
Imagine a scenario where your financial advisor has control of some of your money and also happens to be a drug dealer or insider trader. The police bust him and seize his assets, but because money is fungible they can't tell exactly where all the cash came from. Your money is frozen pending the outcome of the case and a determination which assets should be released. You can sue the accountant (he had a duty to you), but suing the government isn't going to get you very far. Not exactly the same, but analogous, to my mind.
That's how I see it. They're probably under better legal standing suing MU over gross fiduciary misconduct, etc.
And why would people want infringing files back, anyhow? They could just download those from somewhere else. Also, it wouldn't be too bright to tell the courts that you wanted some pirated files back. The files that nobody else had a copy of are the ones that people will need returned to them.
Why go to all that trouble to fight the FBI if you still have your files? Doubly so if these folks were some kind of pirates, because that's sort of like painting a giant target on their back.
If that's the case I don't think it would be unreasonable for the FBI to say that anyone having lost files has only themselves to blame as this wasn't any sort of guaranteed storage medium.
That doesn't sound right. Why would a shopping center be liable for someone else's actions, specifically someone hitting your car?
I guess you could claim that the way the parking lot was built didn't provide... enough visibility? Or something? I dunno.
I don't think this works. The files are gone because MU's business model resulted in law enforcement action. So arguably MU's responsible, though they disclaim liability for damages.
It's like if MU stopped paying their hosting services, and those services shut down MU's servers for non-payment. MU's customers wouldn't have any case against the hosting providers. The FBI case is similar.
They're not lost. They're not gone. The FBI has them and they could give them back if they wanted to. I'm not saying they will, just that they could.
Can the FBI give back copies of the data? I'm sure pirate party types wouldn't have a problem with that...
And I suspect that MU's TOS made it clear that they weren't really guaranteeing permanent availability to even premium customers.
Since you asked, I am fascinated by legal issues, and during long commutes I listened to hundreds of hours of Supreme Court oral arguments from Oyez, followed by reading many of the decisions. Also, almost every close relative is a lawyer, law professor, and/or in law enforcement. Dinner time conversation as a kid was Constitutional law.
The arguments, decisions and doctrines are generally far more accessible than most of us lay people are tend to believe.
In other words, I suppose I "play one on the internet," but I try to cite such statements to real lawyers/decision text (rather than arguing from experience or belief).
That's what the trial is about.
"...how would the FBI establish that the files were non-infringing...?"
Exactly like Megaupolad.
As a result, even if all of the plaintiff's claims were factually true as alleged--the posture assumed in pre-trial motions--I believe the agents acting in their official capacities would likely be found to have immunity.
There is the possibility of a Section 1983 claim against the officials if 4th amendment rights were found to be violated (which the Court has allowed), "[b]ut government officials performing discretionary functions generally are granted a qualified immunity and are 'shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Wilson v. Layne 526 U.S. 603, 609, 119 S.Ct. 1692, 1696 (U.S.Md.,1999)." [1]
Pirates demanding the return of intellectual property.
It would be odd if those laws were found inapplicable because they were only concerned with real property.
This is something else, where after the fact no one has a copy, information is less free than before and someone has been deprived.
You appear to be confusing the general concept of sovereign immunity with the much narrower concept of qualified immunity, which generally protects government employees from being sued personally for actions performed in their official capacities.
Qualified immunity doesn't apply to the government, to its agencies, nor to, for example, the Attorney General in his official capacity. It applies to real, live, human beings.
Isn't this precisely the kind of case the EFF regularly takes up?
1. Not many US federal court cases end up in front of juries anymore.
2. Many jurisdictions outside the US don't use juries at all, others use them only in criminal cases, not civil.
3. The plaintiffs in these cases would be the users harmed, not the "Pirate" parties, and even if a jury were used, it is unlikely a judge would allow the defense to make anything out of the fact that a "pirate party" were involved, as it's entirely irrelevant and potentially prejudicial.
4. The EFF generally takes up cases it thinks might be winnable.
After following a download link:
1) enter captcha in top right
2) on the next screen you'll enjoy a forced delay of a minute unless you click one of the many routes to a premium, paid account
3) after the timer finishes a save button will appear, click on that and you'll trigger the download dialogue from your browser unless... free users may only download one file at a time so if you are already downloading a file you'll get a message about now telling you to start again after your other file finishes. If it's a big file you're downloading you'll especially appreciate the capped download speed because you had the audacity to maneuver around their premium account funnel instead of paying to receive a file someone is sharing
You'd have to be delusional, or in torrentfreak's case pandering for ad impressions, to pretend anyone would bother putting their friends, family and colleagues through all those hoops when they have email, skype, msn, dropbox, yahoo, free hosting, $1 hosting, $2 hosting, $3 hosting, $4 hosting and so many other, easier options available for non-pirated content.
I suppose you'd have to be similarly delusional to use Windows Media Player or QuickTime when VLC is out there?
People use poor but popular products all the time. It doesn't make them liars or crooks.
Sending your friends/family/colleagues a link on MegaUpload (or similar) was essentially putting a paywall between them and the file you actually wanted to give them. For pirated content it makes sense, you have no concern for who comes along to download it and of course they gave you a cut of the money too: http://www.groovypost.com/howto/review/paid-to-upload-upload...
For <legitimate work> it's just nonsense when there's so many high profile, easier ways to get that file from a to b.
However, if you want to transfer a large file to someone, and are not technically savvy enough to have Dropbox, FTP, or some other hosting, you'd probably Google how to send a file, and services such as MegaUpload and Yousendit would be the top results.
The services are biassed to make things as easy as possible for the uploader (free, no sign up required, just enter recipient's email address, redirect to subscribe page after), who is unlikely to take into account the things done to make things a little harder for the downloader (delayed download, premium paywall, throttled free service). For clients who have neither the budget nor the wits to pay for the premium service or their own hosting, the free service worked fine for occasional use.
You could say that Fedex is unethical for not checking every packages content etc... But should the peoples packages be forfeited to the government just like that?
The argument is that MU willfully knew that there were infringing files on their system yet they didn't take them down properly (simply removing links etc..) Other than that I've never seen anyone suggest that they promoted it actively as a way to share unlicensed copyrighted materials. It could be reasonably assume by a user that the site was a generic way to share any file.
This whole argument is ridiculous, now that I'm typing anyway. The government doesn't have any obligations against the customers of a company that does illegal things. When the IRS impounds all the property of a cake bakery, they have no obligation whatsoever against the couple who have a wedding the next day and now all of a sudden don't have a cake. Megaupload users can ask Megaupload to give them their data back (which they obviously can't), or sue them for damages. 'Sueing the FBI' is tough talking from a bunch of armchair lawyers, but has no relation to the real world in any way.
FedEx was created, and is run, with the intent of facilitating completely legal activity. They're not going to examine your packages for legality, but there is an intent and presumption of innocence & legality. That a few people abuse the system for illicit purposes in no way warrants shutting down 99.99% legal activity. It's not like the founders started with "hey, let's make a dope distribution network...wow, we can make some money moving legit content too!".
MegaUpload was created, and is run, with the intent of facilitating known illegal activity. Offshore servers just to avoid jurisdictional issues, public behavior (right down to their license plates) from top-level executives radiating illegal intent, and obvious public knowledge that the main use is outright IP piracy. That a few people use the system for legitimate purposes in no way justifies leaving the system up. It's not like the founders started with "hey, let's make an unlimited-file-size sharing service for businesses...wow, we can make some money moving illegal content too!"
Hezbollah doesn't get a pass just because they provide social services.
Mediafire is even better: Big download button, no waiting and multiple downloads.
Some hosts are really bad. It can be hard to find the proper thing to click with 12 different 'Download button' ads and the real one is tiny and hidden in the bottom right.
Even though I have a dropbox account I still use a similar site to megaupload (mediafire) for most times I need to link someone a file. What I really miss is drop.io that Google poached and killed.
I wouldn't use MegaUpload to share with my family but I certainly would use it to distribute the 200MB video file I wanted to share with a forum. Most "file sync" and "personal sharing" services try to actively prevent users from burning their bandwidth on one-to-many hosting, both as an anti-piracy measure and as a conscious business model decision. The "share big files with lots of people" niche is useful for people other than pirates, and now that niche is nigh-on impossible to fill in the US.
Email: Can't send 60 MB files
Skype: Neither my designer nor clients know how to use it
MSN: Ditto
Dropbox: Can be kinda slow and clients don't know how to use it
Yahoo: Not sure what you're talking about with this one
$X hosting: My designer and clients don't know what this even means — the only way to make it usable for them would be to write a MegaUpload clone
While I have little faith in the intelligence of the average human, a dog that's been dead for six weeks could have figured out how to download files for free from MegaUpload.
> 1) enter captcha in top right
Can't say I recall that.
> You'd have to be delusional, or in torrentfreak's case pandering for ad impressions, to pretend anyone would bother putting their friends, family and colleagues through all those hoops
I've been called many things, but delusional is new. I've had to download more than a few unpirated files from MegaUpload over the years. Some of it even related to open source projects. People like the simplicity.
> email,
Size limits routinely bite people in the ass, and you can't exactly post a link to an email attachment.
> skype,
I'm not even aware Skype has file transfers, but then I don't use it much. In any case, same link problem as email.
> msn, [...] yahoo,
Has IM file transfer ever worked reliably? See also email, skype.
> dropbox,
Largely unknown until 1-2 years ago, wants users to install software, has storage and bandwidth limits, and in general too complicated for the more simple-minded among us.
> free hosting, $1 hosting, $2 hosting, $3 hosting, $4 hosting and so many other, easier options
Most people don't have the first clue how to get or use web hosting, or even why they would even want to.
Megaupload each party paid for their upload or download and that was it, no server bandwidth costs
Obviously for things like linux distros we just use torrents, but for less tech savvy (idiot) users I could imagine megaupload being used for things like huge law libraries, collections of 3d models, collections of sound files, etc. Sure some of that might be copyrighted but there are huge chunks of materials of all those things out there that aren't. And likely more than before once you take hosting costs out of the equation. Who wants to pay $4 a month for hosting when it'll run out after 10 downloads anyway and you're guaranteed never make a cent out of it? But upload it to megaupload and put a link on a forum, not so painful
[0]: http://megaupload.pirata.cat/
edit: I've realized the first step to suing is filing a complaint. However, no where on the Pirata site does it say they're suing, so I'm skeptical.
They seem to want it both ways.
Information wants to be free? Well, part of freeing something is that you can lose it forever.
hang on, thats not right! Being free here means, free to obtain, reuse and distribute. Right now, the information is most decidely NOT free, because the feds are in control of it.
They could've made a copy of the data as evidence - there isn't any need at all to remove the servers. This is digital data, the hardware has absolutely no bearing on the correctness of the evidence. I bet they were somehow 'persuaded' by the MAFIAA to sieze the hardware. I feel its unfair that lobby groups has enough power to use public money to achieve their goals.
Clients: "And our money???"
FBI: "Sorry, they were laundering money so all your/their money is ours now"
I am not arguing if the whole thing is right or wrong, nor am I arguing that the law is right or wrong - but from my understanding this is correct. If anyone can clarify my possible misconceptions then that would be greatly appreciated.
And people wonder why US law enforcement is so reviled?