Have a Techdirt Account? Sign in now. Want one? Register here. Subscribe to the Techdirt Daily newsletter. Comment Options: Use markdown. Use plain text. Make this the First Word or Last Word. No thanks. Become an Insider! This feature is only available to registered users. Register or sign in to use it. Sign In Register Preferences. Fri, Jan 20th pm — Mike Masnick. If you liked this post, you may also be interested in DandonTRJ profile , 20 Jan pm.
After reading the DoJ's evidence [as summarized by Ars Technica] yesterday, I came to the same conclusion. There is plenty of evidence to suggest that MegaUpload operated in a way that pierces the DMCA shield, whether by specific knowledge of certain infringing works, searching for and downloading infringing works themselves, and uploading specific infringing works themselves.
That and the general bluster about their shady corporate culture and internal communications [which reminded me of the complaint filed in the Hotfile case, but on steroids] definitely paints an unsympathetic picture of the defendants. Honestly, if there were any company out there that truly abused the defendant-side DMCA provisions, it was MU, and they probably deserve whatever they have coming if a legitimate case can be made. Some of those arguments really are Catch 22s [like the presence or absence of a search function], and other features of the site have perfectly legitimate uses [like deleting files after a period of inactivity].
My hope is that the court eventually makes its case against MU while parsing out the red herrings, but hoping for nuance in what began as an ex parte seizure may be a bit naive.
Mega is no Saint that is for sure but I worry that this is only the beginning. I have no trust and pretty much zero approval of this Government and this Government has shown itself to be liars,hypocrites,and money takers.
If you ask me I will state that Washington is full of worse crooks than Megaupload. Anonymous Coward , 20 Jan pm. Anonymous Coward , 21 Jan pm.
Then let's make it one, and sue the DOJ for violating our religious freedom. The scariest thing about the Megaupload case from the vantage point of a legitimate internet business with zero interest in servicing pirates, seems to be the deduplication issue. While one link may be used for infringing on copyrights, the same file with the same hash obviously could easily be a personal backup or being used to collaborate on a project involving commentary or criticism.
Would a company that gets a takedown regarding one bad usage of a file then have to ban all possible usages? Such law would seem to have serious first amendment concerns, and this aspect should be fought and overturned, even if MegaUpload itself is found guilty on other counts. RonKaminsky profile , 20 Jan pm. Even more troubling is that some of the newest filesystems come with deduplication on a smaller-than-whole-file level, for example, a block level.
Bergman profile , 20 Jan pm. And what if one of the deduplicated files belongs to the actual copyright owner? Wouldn't it be copyright infringement to deny the actual owner of the copyright the ability to copy, license copies and distribute their own property?
I know people who rely solely on the cloud for their files. I regard it as a bad idea witness what has happened to people who rely on MegaUpload , but such people do exist. What happens to a copyrighted file that is treated the same way, if it gets pirated and uploaded to the cloud? That's a situation where infringing rights might actually BE theft. It occurs to me that if having a search function is illegal, and not having one is also illegal, that the only way ANY site could be legal is if they have a search function that returns "no hits" on any search criteria, no matter what those criteria are.
Mike Masnick profile , 22 Jan am. That wouldn't work: would be "evidence that defendant is trying to hide the infringement from law enforcement" See, that's the thing.
If you make it available so law enforcement can find it, then you're making it available to the public -- and inducing infringement If you don't make it available to the public, then you're also hiding it from law enforcement, and obviously in a conspiracy to avoid law enforcement. I think the only way to be legal is to have a search that only appears and works when law enforcement is on your site. Jeff profile , 20 Jan pm. Aoeu , 20 Jan pm. Dress or behave in a sexually provocative way.
Why can't it be both? A Dan profile , 20 Jan pm. Josh in CharlotteNC profile , 20 Jan pm. You can flout the law. You can flaunt the fact that you are flouting the law. Anonymous Coward , 23 Jan pm. UK has it right so far, proposing that if you buy it, it is your right to do what you want with it, why is the US thinking so limiting, restricting what you can do with what you buy.
MrWilson , 20 Jan pm. Because that theoretically won't maximize profits for the people who influence the laws in this country. Yea it's sad that it doesn't work like that. People bitch about the so called "pirates" if so why did avatar make 2 billion dollars.. I had to see that shit like 5 times in 3d download it and buy the brd two copies one to watch one to save. If more people thought like you this world would be a better place.
This comment has been flagged by the community. Click here to show it. But the bigger overall issue is why this action and why now? Taking it up to a criminal "conspiracy" and racketeering charge seems like overkill, with tremendous collateral damage and chilling effects.
So if Bernie Madoff had been sued by investors for fraud you think the government should have waited to charge him criminally?
The bottom line Masnick is that you are the world's largest piracy apologist and for some unknown reason are unable to admit it. You conjure up every excuse, spin every improbable scenario in order to cast doubt. You draw conclusions and raise suspicions without access to a single piece of evidence. Again why? I do not blindly trust the government, but nor do I blindly mistrust them.
Everything is a fucking conspiracy with you with Chris Dodd and the ghost of Jack Valenti somewhere in the background pulling the strings. Seriously dude, your tinfoil hat is on way too tight and is cutting off the blood supply to your brain.
His point is that why wasn't this dealt with earlier on in civil courts. Just a guess. Plus I doubt that extradition treaties cover civil litigants. And they'd hide their ill-gotten money. This isn't money laundering. See the reply to you by a saner Anonymous Coward, a little below.
In the US, the criminal proceedings are usually always brought first. Civil litigants wait until all criminal proceedings are completed before moving forward with any civil charges I think this is so that neither is influenced by the other. If you lose a criminal suit, your assets can be permanently seized by the government something the government just LOVES to do. Civil suits would take too long to do this, and then there are appeals processes in place.
Criminal suits by and large are given priority by the courts, and with good reason Anonymous Coward , 22 Jan pm. I'm not exactly sure that you need to fit the dictionary definition of the term "money laundering" for it to count as something you can be criminally charged with.
Any money or items gained from illegal transactions or used to commit illegal transactions can be seized and kept by the government. For example, I've seen a prostitution case where the madam was charged with "money laundering" amongst other things , and all of her assets were seized.
It may just be that "money laundering" may not refer to monies that the US government considers "up for grabs". The eejit profile , 21 Jan am. Welcome back! So, how's the lobbying going? Ya know, we kinda missed you guys around here--don't stay away for so long next time.
Anyhow, have a nice day. Except reread the Money Laundering part Collecting fees and setting up a rewards program for the users can't in any way be Laundering You upload videos, you get cash back. The rewards program from what I read didn't specify that rewards would only be paid to people that uploaded pirated content.
The fact that the Government had the balls to try to tack that on, to me, as an American-loving, content paying citizen just scares the shit outta me. Unfortunately, the US Attorney relies on statutes instead of Wikipedia: 18 USC is concerned with financial transactions involving proceeds of illegal activity.
See 18 USC The court is also authorized to sentence the defendant to a term of 20 years in federal prison. Pretty much if they funded other legitimate enterprises with money obtained from criminal copyright infringement, they're guilty of money laundering. Justin Olbrantz Quantam , 20 Jan pm. That's something I didn't know yesterday. Neighborhood crack dealer buys rental property, liquor store, pawn shop etc. That's a form of money laundering. Pirate Apologist , 20 Jan pm.
I was starting to think they all got fired or something Ninja profile , 23 Jan am. They were briefly dazed by the power of the minority. But they don't learn and they are back with full power. I think it's good, adds a lot of insightful comments and hell funny ones. I think the shills are an important part of the online ecosystem, they encourage discussions and make ppl pay more attention to the issues so they can debunk their trolling.
I tell you, we don't like the vermin that eats the rotting stuff but they are very necessary for the ecosystem. Franklin G Ryzzo profile , 20 Jan pm. Do me a quick favor and go back and actually read the article I'll wait Ok, great. Now that you've actually read it you must see that there is no apology for piracy, that Mike states he will not be surprised if the defendants are found guilty, and that he actually only raises legitimate concerns about some of the things that are being presented as evidence.
Did you want to want to discuss the merits of Mike's position on the questionable nature of some of the evidence presented? If so, I'd be happy to engage you in the debate. If not, you're in the wrong room We all paid for arguments in this clinic. Abuse is down the hall. Loki , 21 Jan am. Perhaps because the entertainment industry has spent large amounts of money trying to pass legislation extending the duration, expanding the scope, and limiting the exceptions for copyright.
They then conflate any new precedents they have been able to achieve to further stifle, cripple, or shut down even more competition. Repeat, lather, rinse. Unfortunately, we are dealing with an industry that was, in fact, founded on the infringement I'm sorry "theft" of IP, who essentially commits and even essentially admits to in some cases to extortion, blackmail, and bribery even if not exactly by the letter of the law - but then if infringement is "theft" then who are we to quibble with the fine points of law, and give me a few hundred million dollars I can "donate" to Congress, and I'll make them official in the letter of the law as well.
When dealing with such an organization, it becomes necessary to go over every fine point, every fine detail. This is an ad hominem attack whereby the person making the argument is attacked, and the argument itself is not attacked. While I can't say I disagree with your assessment of Mike, I would have to say you would be MUCH more persuasive if you stuck with the actual merits of the issue at hand.
The remove the link or the file question is a tricky issue, however I cannot see delete the link not the file will ever hold up, even if there are tricky issues. I would think that in practice such websites would need to delete the file, and kill all links, even if it happens one of those links is legitimate.
Most of the other issues, such as not allowing search, not preventing reuploads, etc really shouldn't be there. Also, while I do agree that there are some chilling effects, the evidence suggests that Megaupload did make their large profits were made at least partially illegally, and they intended to flaunt the law. At the very least, they don't exactly come across innocent victims to any degree like youtube or veoh did.
My hope is that the judge throws out the bullshit issues that would lead to chilling effects, however I would expect a plea bargain to come before any such ruling. As to the timing, if Megaupload did make the money alleged in the indictment, and they broke the law to do so, I have no problems with prosecutors going after them.
It is also good that they held out until after the protest to avoid distracting from that, even though they surely have had this for months. I'm sure that there was also the throw the bone to hollywood motive intended in this, but while I have problems with some of the bullshit in the indictment, I can't really fault the justice department for going after a multi million dollar illegal operation as long as they were truly an illegal operation.
When you view things as black and white as Hollywood et al, any content of theirs anywhere on the web is always infringing, no exceptions even when its their own site, as we've seen previously Of course such a view would require what you say: that once a file has been identified or alleged as infringing, it should be banned everywhere. In reality, however, this is not the case. As explained in the above article, whether making copies of a copyrighted work is copyright infringement depends heavily on the context - who is making the copy on the internet this can further be broken down to who is uploading and who is downloading and for what purpose that copy is made.
Copies of the exact same work and even the bit-for-bit identical file can be both legal and illegal for different combinations of those parameters. This is the law that congress and the supreme court have established. It's ridiculous, in my opinion, but it's the law, and anyone who is arguing that the law is right must acknowledge that it is the law.
Consequently no, it is not possible to remove all links to a single file, because every single link potentially represents a different combination of the aforementioned parameters. I should add that my last sentence connects back with the distinction between copyright infringement and child porn: unlike copyright - as just described - distribution of child porn is illegal in all contexts.
Rekrul , 20 Jan pm. Unless it's the government doing the distribution to entrap I mean "catch" pedophiles. Lets say there is a file that has 1 link to it, and a legit DMCA notice is sent to that file. Upon removing the link, the server has no right to keep the illegal upload on their server, they don't get the rights to hold the file just because it was uploaded there. Lets say that there is a movie, which bit by bit is an illegal encode that was only distributed by an improper encoder, such as a hard coded subtitled video file which is a feature length movie which was fan translated.
Obviously, this file could never be considered fair use unless the actual distributor distributes it. Lets also say that the included DMCA notice mentioned that, and said there was no legal distribution of this file. There is no reason Megaupload should only remove a link, as the file itself could not possibly be fair use, so the file should be deleted.
Obviously these are cases where there is little fair use argument, however while there may be tricky cases like what you described, the company shouldn't be able to keep a file they aren't authorize to distribute on their server as long as they use a duplication detection method. That is a problem they made themselves, so they are in a position to either kill the file and thus disable all links on site to it or have a system where they do upload duplicates and don't look for matches.
Otherwise, as soon as any file is uploaded, they get the rights to do what they want with it they could continue to provide a new link every time it is taken down if they have a search engine for example and it would be perfectly legal, as they are allowed to keep the file no matter what any legal action says. So you're arguing that in some specific cases it's possible to know whether something is unauthorized, therefore we must always assume that all cases are unauthorized.
That subtitled video that the fan translated is legal for the fan who created it. It is just illegal for him to distribute it to other people. JarHead , 20 Jan pm. Replying to your specific example here, where 1 file have 1 link and that link is deleted, but the file remains. From a tech stand point it's absurd. I may not know how Mega implement their de-duplication, or how de-duplication is actually implemented in general, but the idea is similar to one widely used in the programming world to implement what is known as "Garbage Collection".
I think it is safe to assume that anyone uses de-duplication wants to minimize the storage costs. If 2 uploaders upload an exact same file, the cost of having to actually store 2 copies of it is more than just having to store one copy and provide 2 links.
Notice here the strong emphasis of minimizing storage costs. So, if 1 file with only 1 link and that link is deleted, storing that file regardless will cost more than not storing it at all. This is the heart of "Reference Counting" algorithm, which states that the actual resource will be deleted after there's no one left referring to it.
I think any de-duplication scheme Flyweights pattern anyone? For the latter case, it must be proven that "Reference Counting" is simply not there or just not working, AND whether the "other use" is anything nefarious.
It doesn't matter how it is from a tech standpoint when you have a single link, if they are allowed to not delete the file when there are 2 links pointing to the same file not separate duplicate files , they are also not allowed to delete the sole link to a file. Either they are required to remove the file from the server, or they are not upon receiving a DMCA take down. And there are cases where you could benefit from this. If a similar site simply sent out a new link to the uploader upon receiving a DMCA notice, if they aren't required to remove the file, this would technically be perfectly legal and the website would effectively be impossible to ever remove a file from their server.
I would think it would be hard to maintain the "dumb pipe" status or whatever it's called if a service provider is acting in such ways. And if there is a file sitting on a disk with no links to it, so no way to download it, how is the copyright owner harmed by that?
If they somehow automated it, it wouldn't affect their dumb pipe status but that is just a quick example I'm sure there are other ways to abuse it. Also, even if the public can't access it, it is clear with the conversation these people in the company continued to get files off their server, and it is legal from them to do this if the law says they don't need to delete it. It also means that anyone who wants a legal collection of illegal files, they just need to host a server, get some people to upload to it, and remove public links on DMCA, and they can do what they want with the files legally, DMCA be damned.
No it isn't; if they make another copy of that file, that copy would be infringing. And they couldn't really do anything with the file without making a copy of it. John Fenderson profile , 22 Jan am. It is entirely possible and I'd think likely that there are two links, from two different users, pointing to the same physical file. User 1 infringed and got a take-down notice. User 2 is not infringing. Removing user 1's link, but not the file with user 2's link pointing to is, seems like the proper, and legal, thing to do.
And of course for putting the screws to hardware manufacturers for daring to support formats due to what technology allows rather than Hollywood. Richard profile , 20 Jan pm. Without such a thing, by hosting a server you get the rights to all files, even unauthorized files, with no legal method to get it off the server, even if it is impossible such a file could ever qualify for fair use a full fan translated hardsubbed movie file for example , or even if it was only uploaded once and that one link was taken down with a legit DMCA you would have no obligation to remove if from your server.
As I noted elsewhere in this comment section, actually storing the file after all links to it are killed is simply doesn't make sense. Because I don't see that "remove the link or the file question" as tricky at all.
You apparently don't have an issue with a law abiding citizen's legal content being deleted because someone else infringed with the same content. I don't think you can justify depriving one person of their legal property to prevent someone else from stealing another's.
If you do, how do you decide whose rights trump whose? They shouldn't be, and the reason our rights should trump theirs is because they have consistently used the justice system to deprive us of ours, while we have not abused the system to deprive them of theirs. Child porn is a strict liability issue: it is always illegal" Also child porn is much easier to identify than infringement. In some circumstances, identifying infringement may require psychic powers.
Ilfar , 20 Jan pm. The logical conclusion of that is that if all distribution is infringement, the RIAA goes out of business, since all recording studios go bankrupt. It'd arguably be worth it, even with the massive collateral damage This case is another reason to abolish IP. If infringement is allowed to be the basis for attacking so many socially beneficial services then I say we legalize infringement.
Sure, just as soon as we make it legal for me to repeatedly kick you in the balls till you're squirming on the ground like a defeated 3rd grade bully. Your argument equates legalizing infringement with legalizing unjust violence which reflects poorly on the position of IP extremists.
You need help. Arbitrarily labeling IP abolition a "butt-rape of creators" violence doesn't make it so and this only makes you look foolish.
You are doing a disfavor to the IP extremist position. If anything, the corporations most avidly supporting these laws are the ones that abuse our legal system to burden creators through laws that effectively limit their means of content distribution without going through an artificially necessary gatekeeper.
Attempts to "limit the number of possible downloads from each file" are intended to harm creators that want their content widely and freely distributed. Our legal system hurts content creators by making it too legally risky and expensive for restaurants and other venues to host independent performers. The people pushing for these laws the most are the ones who hurt creators the most. Hollywood, with its Hollywood accounting, hurts content creators.
Why should I trust their laws to be beneficial to creators. You have also perverted the founding fathers purpose of IP. The purpose of IP should not be to prevent content creators from being 'ripped off'. It should be to promote the progress of the sciences and the useful arts.
It should be to expand the public domain. It should be to serve a social benefit, just like any other law. To the rear is an enclosed garden that has had a large amount of hard landscaping to provide a very useful all round area it has been designed with minimum maintenance in mind and is great for summer entertaining.
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