In the ongoing saga of all of the Megaupload servers that the federal government seized and then handed back to hosting company Carpathia, telling them to effectively destroy them (and with it all sorts of important evidence in the Megaupload case), the judge is considering holding a hearing to dig into some of the questions raised by the case — leading a few motions to be filed. The first, of course is by Kyle Goodwin, represented by the EFF, over his desire to get his data back. The filing also raises significant questions about the entire situation:
… the available record already shows that the government
acted (and continues to act) with a callous disregard for third-party property rights in data stored
on Megaupload. For example, the government knew Megaupload operated a data storage
business, and thus held the property of third parties lawfully using Megaupload’s storage
services. The government knew its search and seizure of Megaupload’s assets would deprive
such third parties of the ability to access and retrieve their property. In seizing domain names
and executing the search warrant at Carpathia, the government took constructive possession of
all the third-party owned data it had seized and to which it had prevented (and continues to prevent) access by their owners. The government then “released” the third-party owned data in a
manner that deliberately made the data both inaccessible to property owners and subject to
government-sanctioned destruction, while at the same time blocking all reasonable efforts to
These failings are striking given that the government is well familiar with the need to
accommodate third-party Fourth Amendment rights through minimization when it executes
searches and seizures, especially of electronic material.
Of course, Goodwin isn’t the only one asking the court to pay attention. Megaupload itself pointed out that it should be included in any such hearing, even though it’s technically outside of this part of the dispute. It notes that if the courts order the data retrieval, someone who understands what’s on the servers and how to find the relevant material would be helpful. Furthermore, the company is concerned about how the servers will be handled, since it still believes there’s useful evidence there that the DOJ appears to want to destroy.
Of course, if Megaupload is filing for something, you shouldn’t be surprised to find out that the MPAA is right behind with its own filing, warning that it wants to be sure that the court magically make sure that no infringement occurs if anyone can access their backup data. We’ve heard this story before, but here it goes again.
… any remedy granted should not compound the massive infringing conduct already at issue in this criminal litigation…. Additionally, if it would be helpful to the Court to consider
evidence from the MPAA or its members on such issues as the lack of authorization for the
reproduction and/or distribution of their works via Megaupload, or the overwhelming amount of
infringement of the MPAA members’ copyrighted work on Megaupload, they will of course
Of course, the issue right here has nothing to do with the MPAA’s fears about infringement. It’s about getting someone back the legitimate data they have on the servers. Why would the MPAA fight so hard against that?
I would imagine this is going to drag on for a while.