Sat January 21, 2012
Privacy Lawyers Process Megaupload Copyright Case
The Justice Department's massive copyright case against the file-sharing website Megaupload.com had the Internet world hopping this week. But it also got lawyers talking, about the scope of a criminal investigation that spanned eight countries and the hard-nosed tactics that the government deployed.
Prosecutors and FBI agents who built the case against Megaupload call it an international crime ring — a racketeering enterprise, like the mob or a drug gang, that made $175 million from pirated movies and music since 2005 and cost copyright holders nearly half a billion dollars more.
Starting last August, the U.S. worked behind the scenes with law enforcement counterparts in New Zealand, whose organized crime unit and police moved in to arrest the company's flamboyant founder Kim Dotcom at his mansion near Auckland Friday.
That was a little much for electronic privacy advocate Corrine McSherry, an attorney at the Electronic Frontier Foundation.
"What we're talking about here is, you know, copyright infringement," McSherry says. "And that may be a serious problem, but it's a little bit chilling if that can get you dragged from your house in the middle of the night."
It's not just rousting people out of bed or executing search warrants in eight different countries. From the indictment, it's clear the Justice Department pulled out all the stops, getting a judge's permission to try to put the Hong Kong-based company out of business by seizing domain names and, according to one federal source, getting a judge to approve search warrants for private emails that Megaupload officials were sending to each other.
The emails, which depict two executives calling themselves "modern days pirates" could prove critical to the case.
"The employees of this company themselves, says the indictment, are talking about, 'Gee, aren't we pirating? Isn't this going well? And hey I'm looking for a copy of a movie myself, does anyone know where it is?' " says Jonathan Zittrain, who teaches law and computer science at Harvard University.
And, according to the indictment, the company gave financial prizes to people who uploaded really popular programs, allegedly rewarding users who flouted copyright laws.
But Megaupload says it's a legitimate business, with lots of users who didn't have anything to do with stealing the latest Twilight movie or episodes of the HBO mob drama The Sopranos.
Megaupload has hired megalawyer Bob Bennett, who once represented President Bill Clinton, to make its case in American courts. Bennett told NPR that he intends to "vigorously dispute the charges," which carry huge financial penalties and a 20-year prison term if the executives are convicted.
Orin Kerr, an expert in computer law at George Washington University, says the legal fight is only just beginning.
"There are very complicated jurisdictional questions," Kerr says. "Did the individuals know they were violating United States law? Did that matter? Does it matter that you know you're violating the law in the U.S. even though you're outside the U.S.?"
Several American legal experts say they think prosecutors are in the clear, because the company used computer servers in Virginia and Washington to store some of its material.
Michael Vatis, a partner at the law firm Steptoe & Johnson, used to run the computer crime program for the FBI.
"I think the main limitation is resources," Vatis says. "These are complicated cases to investigate in large part because they involve international criminals and therefore require international cooperation with lots of law enforcement agencies around the world."
He says the already close ties mean the Justice Department isn't too worried about getting Dotcom, the alleged kingpin of the conspiracy, onto American soil for trial, though Dotcom very likely won't go without a fight.
And you know what else involves cooperation? A counterattack, which is just what happened to the Justice Department website, taken out for hours by supporters of Megaupload after the criminal charges. AnonOps, which took credit for the attack, tweeted late Friday, "The Internet must remain free! Proud to see so many taking a stand yesterday! EXPECT US!"
A spokeswoman says Justice is looking into the so-called malicious activity. Kerr, of George Washington University, is on the lookout too.
"One of the interesting things to watch is whether the Justice Department is able to identify who launched these attacks and may, of course, try to investigate those individuals and see if they can be ... prosecuted," he says.
It's a cat-and-mouse game, Kerr says, that goes both ways, and he expects to see more revenge attacks against U.S. prosecutors as more computer crime cases emerge.