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MegaUpload said they had tried to comply with all of the copyright requests, and they had...

Listen how the Obama Justice Department twists that into a crime.

Courtesy of the LA Times.

MegaUpload provided no index or search function to the public, and sister site MegaVideo filtered its search results to remove copyrighted content.
Wait, doesn't that sound like good thing?  Wait, see how the Obama justice department twisted that around.....  The indictment contends that it's a bad thing because it made it harder for copyright holders to see how much piracy was occurring on the service.  WHAT?

The list of the "Top 100" files at MegaUpload is edited to exclude copyrighted works.
 Wait, that sounds like a good thing.... The indictment, however, asserts that it "makes the website appear more legitimate and hides the popular copyright-infringing content that drives its revenue."  WHAT?
Users could not stream a file on the affiliated MegaVideo site for more than 72 minutes unless they were paid subscribers to MegaUpload.
(72 minutes is too short to copy a copyrighted movie) The indictment contends that the point wasn't to discourage illegal movie viewing, but rather to monetize it.  WHAT?
The Conspiracy made no significant effort and the company is being faulted for not monitoring what each of its users did on its service, not inspecting content as it was being uploaded for copyright violations, and not combing through its servers for infringing material.
But that's inconsistent with the rulings from several federal courts, which have held that online companies have no duty to police their services to prevent infringements or detect them after they occur.

Justice David Souter wrote, "in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial non infringing uses."

This indictment was done in haste and is not a condemnation of MegaUpload, a COMPANY THE INDICTMENT ITSELF, CONFIRMS WAS TRYING TO COMPLY WITH EXISTING COPYRIGHT LAWS......

This was served in Federal Court in Richmond. The same court that says that National Health Care is unconstitutional, even though a number of courts have ruled opposite.

This is a rogue court. This court has now proven twice, it is not representative of America, and New Zealand should suffer for not questioning the authority of the order it was given... This is not an issuance of the United States Of America.  It is one court of almost a hundred.  Injunctions across America need to be filed immediately in friendly courts aimed at halting this hasty and ill-thought-out injunction issued by this rogue court.

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Comment Preferences

  •  Not sure these are holes, giant or otherwise. (8+ / 0-)

    Look back at A&M Records, Inc. v. Napster, Inc., which Souter cites in the MGM ruling.  The 9th held that Napster was liable because the company had "knowledge, both actual and constructive, of direct infringement."  If Megaupload knew of direct infringement but hid it rather than removed it, then that would qualify as evidence of intent, given that they'd be maintaining storage of and allowing downloads of copyrighted material while only removing its most public face.  Note that Souter uses the Napster decision as the basis for MGM; his own decision doesn't let sites off the hook if they both know of infringement and seem to promote it:

    Where evidence goes beyond a product’s characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement, Sony’s staple-article rule will not preclude liability.

    So the question here is whether Megaupload's actions fall under the Souter sense of 'promoting'.  Why is the issue of paid subscription relevant?  Well, here's Souter again, citing the Napster case:

    Since the extent of the software’s use determines the gain to the distributors, the commercial sense of their enterprise turns on high-volume use, which the record shows is infringing.

    In other words, the DoJ contends that Megaupload didn't delete known infringement because they profited from the paid subscriptions necessary to participate in it, given that movies make for popular downloads.  Basically the case rests on a combination of knowledge of infringement, liability, and monetization of that service.  These things you're calling holes aren't holes at all.

    Whether they're evidence of a strong case, however, I have no idea - it all depends on what threshold the courts set for inducement.   Right now the argument rests on the paid subscription thing, a system of "Uploader Rewards" which allegedly encouraged the uploading of copyrighted material, the lack of long-term storage for any file not downloaded regularly, and, as per the Napster decision, the system of ad revenue.  

    The argument on "failure to identify" should fail in itself, but it's not even nearly the worst of the allegations.  I didn't get through it all because it's long and not my area of interest, but the LA Times was right to point that out as a weird claim in context.

    Note: none of this is in support of the indictment (I genuinely don't know enough about the complaint, and couldn't get through more than 20 pages), just a clarification of what the issues seem to be.  Even the LA Times article ends with focus on the cash rewards issue, which will probably be used as evidence of inducement.

    Saint, n. A dead sinner revised and edited. - Ambrose Bierce

    by pico on Fri Jan 20, 2012 at 11:23:28 PM PST

    •  To summarize one of the more complicated (3+ / 0-)
      Recommended by:
      fcvaguy, Bush Bites, izzitgd

      points, the DoJ is arguing that

      1. Megaupload knew its resources were being used for infringement;
      2. They erased public evidence of infringement from the site's public interface while at the same time
      3. They provided financial rewards to users who posted links to other sites that did give searchable access to the infringement, and then
      4. They arranged their revenue process around this cycle (subscriptions, ad revenue, etc.)

      That's why the erasure thing is important for the DOJ's argument: they consider it evidence that Megaupload was aware of and hiding the activity in a way that could give them plausible deniability.

      Whether the argument will hold water is another question: plausible deniability may be easy to argue, depending on how much evidence there is.  

      Saint, n. A dead sinner revised and edited. - Ambrose Bierce

      by pico on Sat Jan 21, 2012 at 12:17:28 AM PST

      [ Parent ]

    •  Well said (1+ / 0-)
      Recommended by:
      erush1345
  •  There are questions of overreach.. (1+ / 0-)
    Recommended by:
    Bush Bites

    ...and extraterritoriality and all that, but it's obvious from every detail of MU's operation that it depends 100% on illegal content.  That's the basis of its profitability.

    But nobody's buying flowers from the flower lady.

    by Rich in PA on Sat Jan 21, 2012 at 05:34:06 AM PST

    •  Yeah, this is silly. (0+ / 0-)

      They're a fencing operation, basically.

      It's these kind of people that make us have to waste time beating back overreactions like SOPA all the time.

      If Obama doesn't deserve credit for getting Bin Laden because he didn't pull the trigger, Bin Laden doesn't deserve the blame for 9-11 because he didn't fly the planes.

      by Bush Bites on Sat Jan 21, 2012 at 07:17:01 AM PST

      [ Parent ]

  •  If they can remove them from their searches... (1+ / 0-)
    Recommended by:
    erush1345

    ....why can't them remove them from their database?

    If Obama doesn't deserve credit for getting Bin Laden because he didn't pull the trigger, Bin Laden doesn't deserve the blame for 9-11 because he didn't fly the planes.

    by Bush Bites on Sat Jan 21, 2012 at 07:13:40 AM PST

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