Megaupload Users Plan To Sue… As Their Files & Data Are About To Be Destroyed

from the this-is-sounding-tragic dept

Soon after Megaupload was shut down, we heard from some lawyers for (legitimate) users of the service who were exploring whether or not they could sue the US government for taking away their access to the data. There was some uncertainty as to whether or not there was a real legal claim here, but now it appears that at least some of the users are, in fact, planning to sue the US government. Perhaps even more troubling, however, is the fact that all of the Megaupload data may be destroyed, potentially by the end of the week, because the data center that was hosting Megaupload’s servers isn’t getting paid any more. TorrentFreak has the news:


“We received a letter very late Friday from the US Attorney that declared there could be an imminent destruction of Megaupload consumer data files on this coming Thursday,” MegaUpload lawyer Ira Rothken told TorrentFreak.

Rothken explains that MegaUpload is determined to protect the interests of its users, but that its hands are tied without help from the authorities. The looming data loss is linked to unpaid bills at Cogent Communications and Carpathia Hosting where MegaUpload leased some of its servers.

I have to admit that I’m a little confused by this. I would assume that that data is evidence — and, in fact, I’m a bit surprised that it wasn’t seized directly as well. Either way, it seems like, as some of the evidence in the case, the Justice Department would forbid its destruction, but here it appears to be supporting of it. Even if you believe that Megaupload is pure evil, and had every intention to destroy the entertainment industry… can’t people at least agree that it is then wrong to simply destroy the content of legitimate users, without (at least) giving them a chance to retrieve their data?

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Comments on “Megaupload Users Plan To Sue… As Their Files & Data Are About To Be Destroyed”

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116 Comments
Nathan Fsays:

The data is in fact evidence. However if they go forth and seize the HDs themselves they will have seized plenty of perfectly legal data that they absolutely no legal right to and would be denying it to the rightful owners (law abiding MU users). 4th Amendment lawsuit begging to happen. By only making a forensic copy of what they need and then allowing the Servers to do as they want they can legally wash their hands of any later accusations of cherry picking data.

Re: Re:

This occurred to me as well. I am sure there would be some international legal violations, especially for European customers, if they did so.

The other concern the government would have to consider is the sheer volume of data. I am pretty damn sure that the government doesn’t currently own the capacity (own not lease) to hold and sift through all that data, especially with the potentially encrypted files in it.

Lets face it guys, our government consists of mostly technologically incompetent fools and old codgers that are afraid of change and of anything new (that doesn’t revolve around them gaining more legitimate grandchildren and great grandchildren. They hate those illegitimate bastards… and some even the ones that turn out gay).

Anonymoussays:

Re: Re: Re: Re:

Lockheed martin maintains many a “secure” database for the government on which is stored untold amounts of confidential information. There is no reason, relating to size of data, that they could not simply have Lockheed or someone similar set-up a database for them and send them the servers/HDDS/copy of.

Re: Re: Re: Re: Re: Re:

I was specifically referring to their own capacity. Yes, they do have companies that provide services to them that can handle the capacity. But I doubt that they have the budget resources for one case to pay for the storage costs (I have a good idea having done a web dev project for the government).

But even if they can find the space and are willing to pay for it or can afford it through some arrangement that doesn’t take into effect the cost of sifting through the evidence. Not to mention that depending on the encoding and organization of the data the may need some of the server software to decrypt/access the data.

The sheer number of man hours involved in such an undertaking is overwhelming. I can guarantee that they wouldn’t spend the money nor the time. Not when they can simply delete the evidence against them.

Franklin G Ryzzosays:

Re: Re: Re: Re:

estoppel: noun
A doctrine that holds, under certain circumstances, that a claim or assertion cannot be made if it contravenes a prior claim or assertion of the same party, or if it contradicts the factual holding of a court whose decision is not directly binding on the parties.

While I don’t think what is happening here is legal, I don’t think it would fall under estoppel.

G Thompsonsays:

Re: Re: Re: Re:

Not really, since the US government has not promised (or became a party to a contract) not to destroy the data.

Though since this is part of a criminal case and there could be potential evidence within that data that could be used as a defense against the allegations/charges then the data center could be estopped from deleting it.

Also EU data laws need to be applied, as well as contractual obligations by owners of Megaupload which interestingly could be construed as now being the US government under their control of the domain names and access to data.

tonysays:

Re: attorney misconduct

This seems like a possible ethics violation by the government attorney involved. It has been reported on other sites that the government attorney stated “It is our understanding that the hosting companies may begin deleting the contents of the servers beginning as early as February 2, 2012.” The use of the MAY raises questions. Does the word MAY mean that the government is granting permission to the hosting companies to delete the data, or merely recognizing the possibility that the data might be deleted? A follow up question is whether the lawyer involved intentionally used the word MAY because it could be seen as a directive to the hosting company but still provide the lawyer with wiggle room over the actual meaning.

Ethics rules vary by jurisdiction, but most are based on the model rules of professional conduct. The relevant rule is 3.4:

A lawyer shall not:
(a) unlawfully obstruct another party’ s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

Rather than drafting a letter that could be interpreted as permitting a third party to destroy evidence, a responsible attorney would have instead stated something like the following: The third party hosting companies should seek their own legal advice and the opinion of the presiding judge regarding any obligation to preserve the defendant’s data.

Anonymoussays:

Re: Re: Wave the Magic Wand

“They claim it would be easy to determine what is and what is not infringing.”

I lover their double talk. I read a court transcript where they were trying to make all mp3’s illegal because “it was too hard” to figure out which files were theirs. Even the Thompson case took months to figure out.

Of course none of that matters.

Of course this doesn't make sense...

Mike, of course it doesn’t make sense to allow the legitimate users keep their content. If they did then there would be enough evidence left for the government to be nearly sued out of existence.

No the evidence at stake isn’t what is against MegaUpload. It is for them and their customers. The government and the entertainment industry couldn’t possibly justify the take-down of legitimate websites if there was enough evidence. And this represents a mountain of evidence.

Anonymoussays:

Re: Re: Re: Re: Re: Re: Of course this doesn't make sense...

But that’s the kicker. The state isn’t deleting it the hosting company is. The state isn’t telling them to delete it they just arnt going out of their way to stop it. Plus the state already copied some of the data to use against mu. So all that would be left is the chunck of data that is damning to mu. Really if this judge is worth his salt he will not let that data go anywhere, but if he doesn’t it hurts mu more than it helps.

Michael Pricesays:

Re: What you thought that wasn't SOP?

Why do you think they have the power to freeze your assets? So they can destroy your business (and your ability to hire a good lawyer) before you see the inside of a courtroom. Why do you think the Arthur Anderson accounting firm plead guilty? Because while they were under indictment they couldn’t take any auditiing or accounting work so they’d be bankrupt in a few months. Get it straight, if you’re a corporation and the US government decides to screw you, you’re pretty much screwed.

DogBreathsays:

Re: Re:

So, basically, the gov’t is behaving as a willing participant in the destruction of MegaUpload long before anything resembling an adversarial hearing?

No one expects the Cardassian Justice System, but in this day and age, they should.

The Cardassian approach to justice is radically different then that favoured by Federation worlds. Cardassians have absolute faith in their investigators, and maintain that only the guilty are ever arrested and brought to trial.

On Cardassia Prime a trial is intended only to demonstrate how the offender?s guilt was determined. Thus the purpose of the trial is not to establish facts ? these are already known, and cannot be disputed ? but to provide an educational experience for the populace, so trials are broadcast throughout Cardassia.

It is important to understand that, the Cardassian mind, the needs of the state outweigh the needs of the individual. The Cardassians believe that only a strong state can provide the necessary structure, security, and stability needed to safeguard the populace. It is a common assertion that ?the survival of state is the survival of the people.?

A good trial demonstrates that the Cardassian state is not only always right, but is strong enough to capture and punish all offenders.

Some Cardassians will admit that under their system it is possible an innocent person may be punished, but they maintain that this is of little consequence. Confessing ? even to a crime one did not commit ? is seen as a last act of service to the state. The innocent Cardassian who is brought to trial recognizes this, and as a result confessions are often forthcoming.

DogBreathsays:

Re: Re: Re:2 Re: Re: Re: Re:

Tonight’s play: “The Dominion” will be played by the following:

The Founders of the Dominion(Changelings/Shapeshifters) : Hollywood and Big Content

Jem’Hadar(Shock Troops / fanatical super-soldiers who require no sleep or food and whose loyalty is ensured by a genetically pre-programmed addiction to the drug ketracel white, which only the Founders can provide, as well as an innate genetic veneration of Changelings and a heavy system of indoctrination that prepares Jem’Hadar for lives of devoted service in the interests of the Changelings.) : Department of Justice and Homeland Security

Vorta(serve as the Founders’ cloned intermediaries acting as Dominion administrators, diplomats, command staff, and scientists. Vorta are known for their duplicity and Machiavellian treachery, though they maintain ultimate service to the Dominion.) : MPAA, RIAA, their lawyers, a few judges and some members of Congress

Anonymoussays:

“I would assume that that data is evidence — and, in fact, I’m a bit surprised that it wasn’t seized directly as well. Either way, it seems like, as some of the evidence in the case, the Justice Department would forbid its destruction, but here it appears to be supporting of it.”

Well the justice department copied what they want already. So lets say there was 1TB of data, the DOJ copies 2GB of clearly infringing data and then lets the rest get deleted. Now they can say 98% of it was infringing and no one can dispute them even though they only “managed to save” 2gb as evidence. It’s now a he-said-she-said as to the legitimacy of that other 98GB.

Pure Arrogance

The content industry is concerned about their so-called property rights, yet they seem to have no regard for the property rights of others. They can have a website shutdown at their will on the mere accusation that the site is infringing. If legitimate users consequently loose their data (private property) is is somehow acceptable collateral damage.

We now seem to live in a society were a certain special interest group has extra special legal rights, but the common citizen has no rights. So much for the US Constitution; might as well throw it away.

Lokisays:

Re: Re: Pure Arrogance

The content industry is concerned about their so-called property rights, yet they seem to have no regard for the property rights of others.

This is why I am no longer pro-copyright (at least as long as it stays in anything even close to its current form) or pro-industry. When they showed me they didn’t give a damn about anyone’s rights but their own (even when others shared the same rights they did) I stopped caring about theirs.

Nicolesays:

Carpathia's Statement

For your reference, here is Carpathia Hosting’s official statement: “In reference to the letter filed by the U.S. Department of Justice with the Eastern District of Virginia on Jan. 27, 2012, Carpathia Hosting does not have, and has never had, access to the content on MegaUpload servers and has no mechanism for returning any content residing on such servers to MegaUpload?s customers. The reference to the Feb. 2, 2012 date in the Department of Justice letter for the deletion of content is not based on any information provided by Carpathia to the U.S. Government. We would recommend that anyone who believes that they have content on MegaUpload servers contact MegaUpload. Please do not contact Carpathia Hosting.” (via http://carpathia.com/carpathia-hostings-statement-on-recent-news-reports)

Rikuosays:

Re: Re: Carpathia's Statement

But Megaupload personnel can’t access their servers, am I right? All of their funds have been seized, and without payment, Carpathia isn’t going to lift a finger to do anything.
So…whether or not the DoJ actually kept the servers physically or not, the legit user with legit data still gets shafted.

If I’m incorrect, please correct me.

Spaceboysays:

Why are you surprised about this?

This wasn’t about justice at all, but about setting precedent. They wanted to scare the shit out of everyone and they succeeded.

Since day one they have been screaming that sharing is stealing and comparing it to theft of tangible property, like a car. So let’s apply the same logic to the Megaupload case.

Megaupload had in all likelihood millions of users and millions of files. I do not know exact numbers, these are sheer guesses. In meatspace, if you unload your stuff at a storage facility, and the owner of that facility is doing something illegal, the cops will move in and arrest him and seize anything related to the crime. The stuff in the storage lockers is still yours. They don’t seize that too. You might not have access to it because they lock the place down, but your stuff is still safe and you have every right to expect that you can get your items back and move them to another facility.

The people behind the Megaupload seizure know this, but they are ignoring it. If the data is destroyed, there is nothing to return. If they keep the data safe then they have to make it available again to the rightful owners. With the sheer number of affected users, that would be incredibly time-consuming and expensive.

Not a single ‘illegal’ file was permanently lost by the Megaupload seizure. Those files are still around on torrent and other sites. It’s the people that were using Megaupload as a backup or distribution system that are most affected.

The government arrested Kim Dotcom. Fine. If he was the owner of the fictitious storage facility above then the police would eventually release the property to the rightful owners. They should do the same here, but they won’t. They will blame it all on Kim.

I seriously hope I’m wrong though.

Anonymoussays:

Re: Re:

another interesting point that you made me consider, is that if the content providers are so fixated on getting everyone to falsly assume that piracy is stealing, then can they deny that they were the incrementel force that lead to the us government to steal content from thousands of legitemet users.

Are we to assumes its ok one way and not the other

Anonymoussays:

“the Justice Department would forbid its destruction, but here it appears to be supporting of it.”

Because the data doesn’t support their claim that MegaUpload is running an intentionally infringing operation and the government knows it. Justice (if stopping infringement can even be said to be just) is not the motive here, stifling competition is. Gathering facts, evidence, and data are a means of determining truth so that a just course of action can be taken but the government doesn’t care about justice here. Justice is too much work for the government, the motive here is purely self serving.

Ima Fishsays:

Either way, it seems like, as some of the evidence in the case, the Justice Department would forbid its destruction, but here it appears to be supporting of it.

The purpose of this raid was not to stop piracy. It was to stop the business model of file hosting.

Who’s going to invest in a file hosting business knowing the feds can randomly shut you down causing the destruction of all of the customer’s data?

Who’s going to be a customer of a file hosting site knowing this?

The file hosting business is dead.

Anonymoussays:

Re: Re: Re: Re:

i hope for one that someone gets the balls and the backing to bring megauploads love child.

And i dont think it will be so easy next time for the content providers to get their way, with all thats happened,
we’ve heard,
we’ve seen,
we’ve discussed and we know your game,
we’ll be watching,
ignore at your own risk,
ignore and see the flames rise as you ignorantly add fuel to the flames,
laugh at you’re peril, laugh at your demise,
i can afford not to give you money,
can you

MrWilsonsays:

If this were a physical world scenario where a storage facility owner/operator was accused of storing illegal stuff on site, the property of the innocent space renters would either be returned to them or held as evidence. If the property owner foreclosed on the business owner for lack of payment, the property owner would still be responsible for the return of the innocent space renters’ property.

Anonymoussays:

If they delete the data then when MegaUpload wins against the US government can MegaUpload sue the US government for destruction of property and causing MegaUpload to breach contracts with their users by freezing their bank accounts and then not paying their bills even though the MegaUpload data is evidence in their court case?

In all likelihood the US government wants to destroy all the evidence of legitimate content on MegaUpload, so that only they can show backups of some of MegaUpload’s data, all cherry picked to make MegaUpload look bad.

Anonymoussays:

They have announced MegaUpload as guilty, just like Wikileaks and Manning. That always sends a shiver up my spine when special interests and government take control of the courts.

It’s ironic that on one hand Hollywood treats infringing as “property” loss and then when it comes to you and me, it’s disposable and not the same.

I really hope someone can do something about this

Anonymoussays:

The real reason MegaUpload was taken down:

?Imagine 450 million Megakey installations by 2015 with over 5 billion ad impressions per day. That pays for a lot of content,?

“During the course of our discussion with Kim we also discovered an interesting feature that has been built into Megakey. Once installed the whole range of Mega sites can be accessed without the need to use the Internet?s DNS system, meaning that should SOPA kick in and the US government seizes Mega?s domains, users can still access the site.”

from Mega vs. UMG, TorrentFreak
http://torrentfreak.com/megaupload-to-universal-youve-got-some-explaining-to-do-111228/

The arab spring really scared these government-types.

TDRsays:

Perhaps what needs to be done is some unauthorized backups. As in, someone sympathetic to MU hacks into the Carpathia servers and backs all the MU files up onto as many multi-TB drives as possible. And then upload them to a new site like mufiles.com or something like that with all the files sorted by user or however it needs to be done so people can get their stuff.

Yet another anonymous cowardsays:

A Senator worthy anology

Basically, what the governemt has decided that the easiest way to shut down the crack house in the middle of town is to tear up all of the roads in the neighborhood, arrest anyone who builds roads, and threaten other neighborhoods with the same treatment. Sure, some of the people living in those other houses in the neighborhood may be legitimate, and may be suffering as a result of this, but that is basically irrelevant to the government. It’s not the government’s fault if they can’t move their stuff out without roads, it’s their fault for living near a crack house in the first place…

Al Bertsays:

Re: Re: A Senator worthy anology

close, but i’d like to adjust the analogy:
the threat of SOPA and similar legislation equates to the destruction of the transport infrastructure (i.e. roads)
the public execution of megaupload is equivalent to burning down the crackhouse and shooting the junkies in the street as they flee and then threatening everyone in the town that you have the power and aren’t afraid of burning down any house in the city for any reason at all.

Ed C.says:

Re: Re: Re: Re: A Senator worthy anology

Nope, YAAC had it right, as you’re assuming megaupload was completely illegal and that everyone who got “shot” must be a “junkie”, despite the evidence to the contrary. I guess “innocent until proven guilty” is just too much work these days; it’s just easier to claim that everyone’s guilty and “shoot” them to avoid the expense of a trial. They’d always be right when no one is left to claim otherwise. I mean, the mob has already proven it to be a viable business model. Why not just go with what works, right?

Lancesays:

The problem is...

They can’t just let the legitimate users of the service have their data! How will they know if the user is retrieving legitimate data, or some movie that the evil user has put up there for safekeeping? There’s too much data for them to be able to determine what is legitimate and what is not….

….uhhhh….wait a second! Isn’t that what they’re asking (demanding) that Megaupload do? You mean to tell me that the authorities are not able to do what they claim the service provider should be doing?! Even though they (the authorities) “know” what is infringing?

Huh, I guess they’ll just have to erase it all. At least that way we’re safe. Can’t have any of those pirated movies escaping!

Anonymoussays:

Re: Re: Re: Re: The problem is...

So it is ok for citizens who have done nothing illegal to get trampled by the justice system as long as some criminals get caught too? I guess we should just lock up every college kid in the country. Sure some of them have done nothing wrong but most of them are on drugs, drinking underage, cheating on their homework, downloading infringing content or doing some other kind of illegal activity. It’s always worth it as long as we get some criminals in the massive net right Bob?

The tuna is delicious, fuck the dolphins.

bobsays:

But what about the illegitimate users? They may want the evidence destroyed!

It’s funny to watch everyone around here repeat the pieties around here so often that they actually believe them. They keep saying, “But what about the legitimate users?” Hah. While I’m sure there are some, I’m sure there are plenty of illegitimate users.

And if the so-called evidence of their uploading is destroyed, I’m sure they’ll sleep easier.

I’m curious. Does anyone want to hazard a guess about how much content in that tarball is really legit?

That Anonymous Cowardsays:

Re: Re: But what about the illegitimate users? They may want the evidence destroyed!

Having not had access to the servers, I have no idea.
But I enjoy your short sighted view of the world, so many people say it all has to be infinging or most of it and thats a reason to screw all of them.
You should never trust the cloud, except in several countries the price of hard drives and blank media is much higher than the price paid in the US, because the government there decided to add a special tax to these items because they MIGHT be used to hold infringing data.
Megaupload was a cheap, easy place to stick files.
For a small fee you could keep things there for a long time, less than it might have cost you to buy another hard drive.

If a SINGLE noninfringing file is lost the Government looses all credibility in this case. Copyright does not mean there is no accountability to other people who also have rights.

So it is better to have to push the idea the data host is going to delete the files… except Carpathia came out and said umm what? We never said ANYTHING like that. I wonder if this was a nifty trick to try and find the missing kajillions they claim Mega made as a secret account they know nothing about is spurred into making payments to save the business.

They are stacking the deck to try and win a case that will be laughed out of court. MU will spend the next 100 years in litigation in civil cases from the content industry, and at some point I am sure Kim DOTCOM will be forced to sell off the IP for his music platform… and I hope it decimates the entire music industry.

Anonymoussays:

Re: Re: Could the Users Pay?

Oh I’m sure they could offer it, and the government might let them actually do so, though I’m sure they still wouldn’t be able to access the files.

To be honest though, when the Department Of (In)Justice sets up, or even allows a situation that would destroy a ton of evidence like this, I really doubt they’d allow people to actually save such disagreeable evidence, so odds are no, people couldn’t offer to pay the hosting fees themselves.

On that note: is something considered paranoia if it’s the most logical conclusion to or about something?

Mr. Bad Examplesays:

Megaupload

And so starts the downward spiral…at this point, hopefully someone somewhere in the government is beginning to realize that they have opened a massive can of worms, and no matter how they are struggling to get the worms back in the can, they’re not going to succeed…either they’re going to make our government financially responsible for the destruction of MILLIONS of dollars worth of legal data, and they’re going to allow the destruction of evidence-which, with a good attorney, will completely invalidate the cases they’re pursuing; or they’re going to be guilty of seizing and holding people’s personal property, which even the stupidest lawyer in the United States can figure out is a direct violation of the US Constitution…even the doddering old fools on the Supreme Court can’t be that ignorant.

Anonymoussays:

Simple question:

If they uploaded a file there originally, wouldn’t they have the original file? They were using mega as a backup, not as a primary source. If they were using it as a primary source, and did so without a contract, without control, and without backups of their own, then they are just stupid and have earned their own fate.

The government didn’t seize their data. Megaupload the company is no longer paying it’s hosting bills, and as a result, the data centers will likely remove the data.

The lawsuit would be better aimed at Fat Kim, rather than the US government. It’s a failure of Mega to maintain proper backups and to operate in a legal manner.

Anonymoussays:

Re: Re:

The government didn’t seize their data. Megaupload the company is no longer paying it’s hosting bills, and as a result, the data centers will likely remove the data.

The lawsuit would be better aimed at Fat Kim, rather than the US government. It’s a failure of Mega to maintain proper backups and to operate in a legal manner.

Let’s be clear: it’s not that MU isn’t paying the bills, it’s that they can’t.

An example would be if you had bought and were making payments on a house, got accused of something, and found yourself locked up during the investigation.

With no ability to access your house, your bank account, or anything else, after a while the bank forecloses, seizes, and auctions off your house, all because you were unable to pay. Doesn’t matter that without access to your bank you were literally unable to pay, you still find yourself without a house, no matter how the investigation ends up.

Of course in the MU case, it would be more like if the owner of a large apartment building was accused, and he not only lost the building, all the tenants were kicked out too, with all their stuff destroyed, because no-one would let them enter the building to get their stuff.

Anonymoussays:

The assholes in the DOJ...

…are not capable of seizing the evidence in this case: it’s clearly beyond their meager technical abilities. (Not that they’ll admit this in open court: I expect that they’ll lie, lie, lie about it, guessing that the court will be even less technically capable than they are and thus unable to detect the lie.)

But it really doesn’t matter. Their bullshit case looks better if the 99.999% of completely legitimate data disappears, leaving only the .001% that MIGHT be problematic. They’re stacking the deck in their favor AND deliberately fucking over all the users to discourage them from ever trusting any business like Megaupload ever again.

Gene Cavanaughsays:

Megaupload potential data destruction

If I were an (evil) attorney for the government, I would want to destroy anything showing legitimate usage; that way, I would have evidence of (some) infringement, and NO evidence of legal usage.

Shouldn’t there be a movement to have Congress (or someone) intercede? If that data is destroyed, how do you show there was any legal use of the site?

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20:51 Copyright Law Discriminating Against The Blind Finally Struck Down By Court In South Africa (7)
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