The recent case here in New Zealand of the FBI seeing extradition for Kim Dotcom, inventor of Megaupload, has some very concerning implications. The question I keep coming back to is why is the FBI doing this? So far the answers I’ve seen outlined online and considered just don’t quite fit.

So Megaupload is a file sharing site, just like Egnyte, Rapid Share, 4Shared, MediaFire, DropBox and many more too numerous to name. Pretty much everyone has been frustrated by trying to send a file to someone else via email. Sites like Megaupload solve this problem for users; you upload your file and get a unique link which you email to whoever you want to share that file with. Simple, easy, innovative problem solving stuff. And most uses of Megaupload were probably legal and legitimate. However, undoubtedly some files uploaded were not legally owned by the persons uploading them. This is apparently where the problem lies.

Megaupload were restricted from seeing the files uploaded by their users just as your email provider is restricted from looking at the content of your emails. So how could they be supposed to prevent all illegal file sharing? Furthermore, Megaupload offered access to members of the Motion Picture Association of America (MPAA) to it’s servers, allowing MPAA members to delete any links to files they deemed to breach their copyright. This is something Megaupload did not legally have to do, but they did it to try to contain or curb copyright violation on their site.

The Digital Millenium Copyright Act (DMCA) exempts internet service providers and other intermediaries from being held liable for third party behaviour. So google cannot be sued because websites which can be found via a google search contain copyrighted material. This seems reasonable, and when you think about it the internet would not be free without such an exemption. It’s kinda like saying the provider of your home phone line cannot be held liable if you use your phone to plan a crime. And why on earth should they? If they were liable every time someone used a telephone to plan a crime there would be no providers of phone lines. End of story. If internet service providers were held liable every time a user used their service for illegal purposes, then there would quickly be no internet service providers.

YouTube was sued by Viacom Inc in March 2007. Viacom asserted that YouTube was making copyrighted material available on it’s site. Viacom lost that case in 2010, with the court deciding YouTube was protected by the safe harbour of the DMCA. The case of Megaupload seems extraordinarily similar. It seems the US Government will lose.

The scary thing is that Kim Dotcom’s business has been shut down, without a trial being held, without evidence being presented and decided upon in a court of law. The US Government decides they don’t like what you’re doing, and your business and income ceases to exist. Overnight. And unless you have very deep (and hidden) pockets, with little to no recourse for you. You don’t even have to be a resident of the United States, Kim Dotcom isn’t and he’s currently in New Zealand on the other side of the world. So the United States Government can essentially take down websites which are the creations of, and provide a living for anyone, anywhere in the world. That’s really scary!

The United States likes to hold itself up as the “land of the free” and a champion for democracy. Yet Kim Dotcom has had his business shut down, his assets frozen, and been thrown in jail facing extradition to the United States, all before a trial can be held. And it seems that the charges of copyright infringement will not hold up.

The charges of racketeering and money laundering are probably subsequent to obtaining money illegally after breach of copyright, thus it seems the copyright charges are central.

So if Viacom lost to YouTube, and the US Government knows this, then why chase Kim Dotcom for the same losing charge in New Zealand? Why expend all this time, effort and money (of the New Zealand taxpayers too dammit!) when it seems they’re flogging a losing duck? (to mix metaphors)

I strongly suspect it has something to do with files held in Megauploads servers. The immediate effect of this notice being served on Megaupload was the taking down of the site. Those files are no longer accessible. What was in them? Something that may have embarrassed the United States Government?

That’s the only theory I’ve come up with so far which makes sense.

In the middle of all this is Kim Dotcom and his family. My sympathy lies with them, and I hope he manages to fight this successfully and restore his business. He deserves no less.

I’d like to see the unbridled power of the United States Government curbed, and I’d like to know we’re safe from them down here in New Zealand.

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