MegaUpload users plan to sue the FBI over lost files(torrentfreak.com)
torrentfreak.com
MegaUpload users plan to sue the FBI over lost files
http://torrentfreak.com/megaupload-users-plan-to-sue-the-fbi-over-lost-files-120126/
59 comments
This isn't like money, you can tell whose files are whose: people have their login information and could be permitted to download those files they uploaded in the first place.
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.
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.
People were using megaupload as a backup service? They don't have the originals anymore?
There have been quotes from people who lost their files in the stories about this.
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.
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.
My issue with this (other than the stupidity of not backing up an important file) is that I bet that the MegaUpload ToS (sadly not available right now) stipulate that they're not liable for any file loss.
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.
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.
I don't think MU disclaiming responsibility for file loss automatically means the FBI should be able to come in and pinch them all without consequence. Every shopping centre has a sign in their carpark saying that they don't take liability for any damage to cars parked there, but if someone drives into your car in one they're still liable for damages, despite there not being any guarantee of security originally.
"I don't think MU disclaiming responsibility for file loss automatically means the FBI should be able to come in and pinch them all without consequence."
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.
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.
> Every shopping centre has a sign in their carpark saying that they don't take liability for any damage to cars parked there, but if someone drives into your car in one they're still liable for damages, despite there not being any guarantee of security originally.
That doesn't sound right. Why would a shopping center be liable for someone else's actions, specifically someone hitting your car?
That doesn't sound right. Why would a shopping center be liable for someone else's actions, specifically someone hitting your car?
Sorry, I was a bit imprecise with my pronouns. What I meant was that the person who hit you is liable. What I'm getting at is that MU disclaiming certain liabilities doesn't (or at least IMO shouldn't) give other parties license to do whatever they want without consequence.
In England: You can't disclaim liability. Thus, putting a sign in the car park saying "we're not liable for anything that happens to your car while parked here" means nothing; if something they did makes them liable they're still liable even if they have the sign up.
That part makes sense; what doesn't is why would a shopping center be liable at all if someone hit your car while in their parking lot.
I guess you could claim that the way the parking lot was built didn't provide... enough visibility? Or something? I dunno.
I guess you could claim that the way the parking lot was built didn't provide... enough visibility? Or something? I dunno.
The TOS protects MegaUpload, it does not protect any third parties.
It's one thing for MU to say there are no guarantees that you won't lose your file, it's another for the FBI to say that they've taken them and won't give them back.
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.
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.
"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...
Can the FBI give back copies of the data? I'm sure pirate party types wouldn't have a problem with that...
The only people who really have any standing to complain would be premium account holders. Everyone else's uploads would eventually be deleted, sooner or later.
And I suspect that MU's TOS made it clear that they weren't really guaranteeing permanent availability to even premium customers.
And I suspect that MU's TOS made it clear that they weren't really guaranteeing permanent availability to even premium customers.
"The US government has sovereign immunity [...] unless those acts violate the law..."
That's what the trial is about.
"...how would the FBI establish that the files were non-infringing...?"
Exactly like Megaupolad.
That's what the trial is about.
"...how would the FBI establish that the files were non-infringing...?"
Exactly like Megaupolad.
Sovereign immunity is a pretty well settled concept at the Federal level (especially with regard to law enforcement and foreign relations), with a few exceptions.
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]
[1] http://www.robertslaw.org/4thamend.htm
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]
[1] http://www.robertslaw.org/4thamend.htm
Even if the "agents" won't go to prison, the goal is to get back those files as soon as possible, because those are withheld without good reason.
Aren't there laws concerning the return of seized property? Or are those inapplicable here? If they had seized a storage company, would the customers not have been able to get their stuff out of the storage sheds?
This case is funny.
Pirates demanding the return of intellectual property.
Pirates demanding the return of intellectual property.
The 'pirates' are against copyright infringement, where after the act the information is copied and no one is denied a copy.
This is something else, where after the fact no one has a copy, information is less free than before and someone has been deprived.
This is something else, where after the fact no one has a copy, information is less free than before and someone has been deprived.
That irony cuts the other way, though, doesn't it?
It would be odd if those laws were found inapplicable because they were only concerned with real property.
It would be odd if those laws were found inapplicable because they were only concerned with real property.
> the agents acting in their official capacities would likely be found to have immunity
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.
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.
Excellent post. Out of idle curiosity, are you putting a degree in law to specific use these days or is this area of the law simply a hobby for you?
Thanks, nice of you to say. I do not have a law degree, so I'm (obviously) not a lawyer.
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).
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).
This in no way will be helped by the fact that the lawsuit is being facilitated by "pirate parties" all over the world. We know what the pirate parties stand for; a jury would not.
Isn't this precisely the kind of case the EFF regularly takes up?
Isn't this precisely the kind of case the EFF regularly takes up?
[deleted]
[none of this means the cases will go anywhere]
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.
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.
Catalan pirate here. EFF joined to the initiative today. We are going to publish it soon and all USA citizen will be redirected to EFF.
These sites are meticulously designed to force you into paying for premium access to download files. They have it down to such a fine art people actually make videos on youtube demonstrating how to download files for free from sites like MegaUpload.
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.
http://www.youtube.com/watch?v=MO1JabWsVTQ
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.
http://www.youtube.com/watch?v=MO1JabWsVTQ
There's a different use case you're not considering: one-to-many distribution of legal-to-distribute works. I saw a lot of camera test videos from photo forums, Android ROMs from Android forums, and PDFs of obscure pamphlets hosted on MegaUpload, because for quite some time it had a less painful captcha/wait process than RapidShare (and MediaFire wasn't popular yet).
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.
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.
Megaupload has been captcha-less for a while, and from time to time without a waiting period.
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.
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.
A company I worked at actually did use services like MegaUpload (not MU specifically, but something pretty similar) to exchange files with clients.
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
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
The difference is for most of those products you have to pay for the bandwidth
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
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
> people actually make videos on youtube demonstrating how to download files for free from sites like MegaUpload
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.
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.
Rapidshare learned it the hard way and now there is no waiting/captcha.
Mediafire is even better: Big download button, no waiting and multiple downloads.
Mediafire is even better: Big download button, no waiting and multiple downloads.
>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.
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.
Windows Media Player and Quicktime might be lame but they don't actively work against the user unless you pony up some cash to use the "can open a file in just 2 clicks" version.
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.
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.
How do you explain people using the trial version of winzip then?
I have in fact received large client-owned files over megaupload and rapidshare (they emailed me the URL). I don't really know why they didn't stage them on their own server (that's how we do it) but when trying to work smoothly with non-nerd biz dev people I'm certainly not going to push back over doing something else for one minute every couple of weeks.
"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."
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.
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.
Normal people use what they know how to use. They don't know there's better stuff. Even if they did, you'd have a hard time explaining to them why they should change.
It's ethically not correct if you profit (freeride) from a service which is payed for by black/pirate money. If 'normal' people are thus ignorant to not notice this, I really don't care if they loose their files.
So, if I understand your logic, Fedex, which often ends up transporting illegal drugs in around the US, profits from illegal packages, they should have their entire company shutdown and all packages impounded? I'm sure there is plenty of other example which illustrates what I mean (banks).
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.
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.
Apply the legal principle of "guilty mind".
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.
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.
It's about proportions. Fedex = mostly legit packages = less reasonable to shut it all down. Megaupload = mostly infringing content = more reasonable to shut it down, especially since the other counts against Kimmy are rather serious white-collar crime charges.
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.
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.
Neither the Torrent Freak article nor the Pirates of Catalonia[0] page say anything about suing the FBI— only submitting a complaint against the agency.
[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.
[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.
The title of the TorrentFreak article does say it, however the Pirates of Catalonia page indeed does not.
PIRATA.CAT lawyers (and other pirate parties legal teams) are working on this. This hasn't been done before.
Is it just me, or is there an incredible disconnect over "intellectual property"? Copyright interests like the RIAA and MPAA pressure governments to perform these raids which typically involve a court order to seize physical property (servers, etc) without any cognizance of the "property" they contain.
They seem to want it both ways.
They seem to want it both ways.
So do the pirates, though, it seems to me. They usually aren't big proponents on being able to control your data.
Information wants to be free? Well, part of freeing something is that you can lose it forever.
Information wants to be free? Well, part of freeing something is that you can lose it forever.
"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.
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.
Ignoring the way Megaupload was taken down and focusing on fault - am I wrong in believing that there is no case against the FBI with regards to end users files? Wouldn't the actual target be Megaupload themselves (regardless of current situations) since they are the ones responsible for hosting, and thus "losing" their customers files?
Yes, you are correct, and that is the only way to look at it.
FBI: "We just closed a bank."
Clients: "And our money???"
FBI: "Sorry, they were laundering money so all your/their money is ours now"
Clients: "And our money???"
FBI: "Sorry, they were laundering money so all your/their money is ours now"
I am not a lawyer, but as far as I understand, that civil recovery depends on if anything was recovered to return. If, for example, the servers were confiscated, and no one has given passwords to access the servers to retrieve content, then Civil Recovery is not possible. This would still leave Megaupload as the entity who would get sued. If civil recovery is however possible, then there would be due process and retrieving X amount of files for X amount of people as well as supplying burden of proof that they are indeed the legitimate owners of said content, then this would be a lengthy process that could be surrounded in bureaucratic red tape for a while - and still such a lawsuit, especially at this point in time would not do anything.
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.
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.
So the feds swoop in, run off with multiple terabytes of data on the pretense that some percentage of it might be pirated, and there isn't fuck all a mere mortal can do about it.
And people wonder why US law enforcement is so reviled?
And people wonder why US law enforcement is so reviled?
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.