MegaUpload users plan to sue the FBI over lost files

http://torrentfreak.com/megaupload-users-plan-to-sue-the-fbi-over-lost-files-120126/

by joeyespo • 14 years ago

135 58 14 years ago

This in no way will be helped by the fact that the lawsuit is being facilitated by "pirate parties" all over the world. We know what the pirate parties stand for; a jury would not.

Isn't this precisely the kind of case the EFF regularly takes up?

nknight3• 14 years ago

[none of this means the cases will go anywhere]

1. Not many US federal court cases end up in front of juries anymore.

2. Many jurisdictions outside the US don't use juries at all, others use them only in criminal cases, not civil.

3. The plaintiffs in these cases would be the users harmed, not the "Pirate" parties, and even if a jury were used, it is unlikely a judge would allow the defense to make anything out of the fact that a "pirate party" were involved, as it's entirely irrelevant and potentially prejudicial.

4. The EFF generally takes up cases it thinks might be winnable.

im_dario2• 14 years ago

Catalan pirate here. EFF joined to the initiative today. We are going to publish it soon and all USA citizen will be redirected to EFF.

benologist2• 14 years ago

These sites are meticulously designed to force you into paying for premium access to download files. They have it down to such a fine art people actually make videos on youtube demonstrating how to download files for free from sites like MegaUpload.

After following a download link:

1) enter captcha in top right

2) on the next screen you'll enjoy a forced delay of a minute unless you click one of the many routes to a premium, paid account

3) after the timer finishes a save button will appear, click on that and you'll trigger the download dialogue from your browser unless... free users may only download one file at a time so if you are already downloading a file you'll get a message about now telling you to start again after your other file finishes. If it's a big file you're downloading you'll especially appreciate the capped download speed because you had the audacity to maneuver around their premium account funnel instead of paying to receive a file someone is sharing

You'd have to be delusional, or in torrentfreak's case pandering for ad impressions, to pretend anyone would bother putting their friends, family and colleagues through all those hoops when they have email, skype, msn, dropbox, yahoo, free hosting, $1 hosting, $2 hosting, $3 hosting, $4 hosting and so many other, easier options available for non-pirated content.

http://www.youtube.com/watch?v=MO1JabWsVTQ

redthrowaway2• 14 years ago

>You'd have to be delusional, or in torrentfreak's case pandering for ad impressions, to pretend anyone would bother putting their friends, family and colleagues through all those hoops when they have email, skype, msn, dropbox, yahoo, free hosting, $1 hosting, $2 hosting, $3 hosting, $4 hosting and so many other, easier options available for non-pirated content.

I suppose you'd have to be similarly delusional to use Windows Media Player or QuickTime when VLC is out there?

People use poor but popular products all the time. It doesn't make them liars or crooks.

benologist2• 14 years ago

Windows Media Player and Quicktime might be lame but they don't actively work against the user unless you pony up some cash to use the "can open a file in just 2 clicks" version.

Sending your friends/family/colleagues a link on MegaUpload (or similar) was essentially putting a paywall between them and the file you actually wanted to give them. For pirated content it makes sense, you have no concern for who comes along to download it and of course they gave you a cut of the money too: http://www.groovypost.com/howto/review/paid-to-upload-upload...

For <legitimate work> it's just nonsense when there's so many high profile, easier ways to get that file from a to b.

slig• 14 years ago

Normal people use what they know how to use. They don't know there's better stuff. Even if they did, you'd have a hard time explaining to them why they should change.

johnsea• 14 years ago

It's ethically not correct if you profit (freeride) from a service which is payed for by black/pirate money. If 'normal' people are thus ignorant to not notice this, I really don't care if they loose their files.

jQueryIsAwesome2• 14 years ago

Rapidshare learned it the hard way and now there is no waiting/captcha.

Mediafire is even better: Big download button, no waiting and multiple downloads.

mukyu• 14 years ago

Megaupload has been captcha-less for a while, and from time to time without a waiting period.

Some hosts are really bad. It can be hard to find the proper thing to click with 12 different 'Download button' ads and the real one is tiny and hidden in the bottom right.

Even though I have a dropbox account I still use a similar site to megaupload (mediafire) for most times I need to link someone a file. What I really miss is drop.io that Google poached and killed.

bri3d• 14 years ago

There's a different use case you're not considering: one-to-many distribution of legal-to-distribute works. I saw a lot of camera test videos from photo forums, Android ROMs from Android forums, and PDFs of obscure pamphlets hosted on MegaUpload, because for quite some time it had a less painful captcha/wait process than RapidShare (and MediaFire wasn't popular yet).

I wouldn't use MegaUpload to share with my family but I certainly would use it to distribute the 200MB video file I wanted to share with a forum. Most "file sync" and "personal sharing" services try to actively prevent users from burning their bandwidth on one-to-many hosting, both as an anti-piracy measure and as a conscious business model decision. The "share big files with lots of people" niche is useful for people other than pirates, and now that niche is nigh-on impossible to fill in the US.

chc• 14 years ago

A company I worked at actually did use services like MegaUpload (not MU specifically, but something pretty similar) to exchange files with clients.

Email: Can't send 60 MB files

Skype: Neither my designer nor clients know how to use it

MSN: Ditto

Dropbox: Can be kinda slow and clients don't know how to use it

Yahoo: Not sure what you're talking about with this one

$X hosting: My designer and clients don't know what this even means — the only way to make it usable for them would be to write a MegaUpload clone

nknight3• 14 years ago

> people actually make videos on youtube demonstrating how to download files for free from sites like MegaUpload

While I have little faith in the intelligence of the average human, a dog that's been dead for six weeks could have figured out how to download files for free from MegaUpload.

> 1) enter captcha in top right

Can't say I recall that.

> You'd have to be delusional, or in torrentfreak's case pandering for ad impressions, to pretend anyone would bother putting their friends, family and colleagues through all those hoops

I've been called many things, but delusional is new. I've had to download more than a few unpirated files from MegaUpload over the years. Some of it even related to open source projects. People like the simplicity.

> email,

Size limits routinely bite people in the ass, and you can't exactly post a link to an email attachment.

> skype,

I'm not even aware Skype has file transfers, but then I don't use it much. In any case, same link problem as email.

> msn, [...] yahoo,

Has IM file transfer ever worked reliably? See also email, skype.

> dropbox,

Largely unknown until 1-2 years ago, wants users to install software, has storage and bandwidth limits, and in general too complicated for the more simple-minded among us.

> free hosting, $1 hosting, $2 hosting, $3 hosting, $4 hosting and so many other, easier options

Most people don't have the first clue how to get or use web hosting, or even why they would even want to.

coopdog2• 14 years ago

The difference is for most of those products you have to pay for the bandwidth

Megaupload each party paid for their upload or download and that was it, no server bandwidth costs

Obviously for things like linux distros we just use torrents, but for less tech savvy (idiot) users I could imagine megaupload being used for things like huge law libraries, collections of 3d models, collections of sound files, etc. Sure some of that might be copyrighted but there are huge chunks of materials of all those things out there that aren't. And likely more than before once you take hosting costs out of the equation. Who wants to pay $4 a month for hosting when it'll run out after 10 downloads anyway and you're guaranteed never make a cent out of it? But upload it to megaupload and put a link on a forum, not so painful

elliottcarlson3• 14 years ago

Ignoring the way Megaupload was taken down and focusing on fault - am I wrong in believing that there is no case against the FBI with regards to end users files? Wouldn't the actual target be Megaupload themselves (regardless of current situations) since they are the ones responsible for hosting, and thus "losing" their customers files?

jQueryIsAwesome2• 14 years ago

FBI: "We just closed a bank."

Clients: "And our money???"

FBI: "Sorry, they were laundering money so all your/their money is ours now"

elliottcarlson3• 14 years ago

I am not a lawyer, but as far as I understand, that civil recovery depends on if anything was recovered to return. If, for example, the servers were confiscated, and no one has given passwords to access the servers to retrieve content, then Civil Recovery is not possible. This would still leave Megaupload as the entity who would get sued. If civil recovery is however possible, then there would be due process and retrieving X amount of files for X amount of people as well as supplying burden of proof that they are indeed the legitimate owners of said content, then this would be a lengthy process that could be surrounded in bureaucratic red tape for a while - and still such a lawsuit, especially at this point in time would not do anything.

I am not arguing if the whole thing is right or wrong, nor am I arguing that the law is right or wrong - but from my understanding this is correct. If anyone can clarify my possible misconceptions then that would be greatly appreciated.

roel_v2• 14 years ago

Yes, you are correct, and that is the only way to look at it.

ceol• 14 years ago

Neither the Torrent Freak article nor the Pirates of Catalonia[0] page say anything about suing the FBI— only submitting a complaint against the agency.

[0] http://megaupload.pirata.cat/

edit: I've realized the first step to suing is filing a complaint. However, no where on the Pirata site does it say they're suing, so I'm skeptical.

elliottcarlson3• 14 years ago

The title of the TorrentFreak article does say it, however the Pirates of Catalonia page indeed does not.

im_dario2• 14 years ago

PIRATA.CAT lawyers (and other pirate parties legal teams) are working on this. This hasn't been done before.

hncommenter133• 14 years ago

This is more of a PR stunt than a winning legal strategy.

1. The US government has sovereign immunity (except where specifically waived by law) for virtually all its official acts, unless those acts violate the law or constitutional rights.

2. The supreme court has affirmed in a somewhat similar case, Kosak v. US, 465 U.S. 848 (1984), in which a set of paintings were detained (and possibly slightly damaged) by Customs officials. More recently, the core holding in Kosak was affirmed in Dolan v. US, a case regarding a specific waiver of immunity for the US Postal Service (though the lower court was reversed).

3. In a recent series of cases on criminal law (Medellin v. Texas, among others), a majority of the Court made it clear that they do not view decisions of the International Criminal Court as self-executing, meaning that they are to be followed without the ability for the Supreme Court to review them.

In other words, this is a real longshot. At some point, if no criminal case can be proved, the accused may get the servers back (and the users their files). But if convicted (or if the assets are subject to foreiture as the fruit of illegal activity), there's a good chance those servers are gone for good.

Besides, how would the FBI establish that the files were non-infringing and should be returned? In theory, the DMCA helps guard against this--had MegaUpload actually followed the takedown procedures, the government could have more faith that returning the servers to a surviving entity wouldn't put the same infringing content back online.

Imagine a scenario where your financial advisor has control of some of your money and also happens to be a drug dealer or insider trader. The police bust him and seize his assets, but because money is fungible they can't tell exactly where all the cash came from. Your money is frozen pending the outcome of the case and a determination which assets should be released. You can sue the accountant (he had a duty to you), but suing the government isn't going to get you very far. Not exactly the same, but analogous, to my mind.

mc32• 14 years ago

>You can sue the accountant (he had a duty to you)

That's how I see it. They're probably under better legal standing suing MU over gross fiduciary misconduct, etc.

kingkilr• 14 years ago

The MU terms of service specifically said there were no guarantees about upload lifetime (or something to that effect).

Natsu5• 14 years ago

This isn't like money, you can tell whose files are whose: people have their login information and could be permitted to download those files they uploaded in the first place.

And why would people want infringing files back, anyhow? They could just download those from somewhere else. Also, it wouldn't be too bright to tell the courts that you wanted some pirated files back. The files that nobody else had a copy of are the ones that people will need returned to them.

tedunangst• 14 years ago

People were using megaupload as a backup service? They don't have the originals anymore?

knieveltech• 14 years ago

Excellent post. Out of idle curiosity, are you putting a degree in law to specific use these days or is this area of the law simply a hobby for you?

hncommenter133• 14 years ago

Thanks, nice of you to say. I do not have a law degree, so I'm (obviously) not a lawyer.

Since you asked, I am fascinated by legal issues, and during long commutes I listened to hundreds of hours of Supreme Court oral arguments from Oyez, followed by reading many of the decisions. Also, almost every close relative is a lawyer, law professor, and/or in law enforcement. Dinner time conversation as a kid was Constitutional law.

The arguments, decisions and doctrines are generally far more accessible than most of us lay people are tend to believe.

In other words, I suppose I "play one on the internet," but I try to cite such statements to real lawyers/decision text (rather than arguing from experience or belief).

m_for_monkey2• 14 years ago

"The US government has sovereign immunity [...] unless those acts violate the law..."

That's what the trial is about.

"...how would the FBI establish that the files were non-infringing...?"

Exactly like Megaupolad.

hncommenter133• 14 years ago

Sovereign immunity is a pretty well settled concept at the Federal level (especially with regard to law enforcement and foreign relations), with a few exceptions.

As a result, even if all of the plaintiff's claims were factually true as alleged--the posture assumed in pre-trial motions--I believe the agents acting in their official capacities would likely be found to have immunity.

There is the possibility of a Section 1983 claim against the officials if 4th amendment rights were found to be violated (which the Court has allowed), "[b]ut government officials performing discretionary functions generally are granted a qualified immunity and are 'shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Wilson v. Layne 526 U.S. 603, 609, 119 S.Ct. 1692, 1696 (U.S.Md.,1999)." [1]

[1] http://www.robertslaw.org/4thamend.htm

michaelfeathers• 14 years ago

Is it just me, or is there an incredible disconnect over "intellectual property"? Copyright interests like the RIAA and MPAA pressure governments to perform these raids which typically involve a court order to seize physical property (servers, etc) without any cognizance of the "property" they contain.

They seem to want it both ways.

jonhendry5• 14 years ago

So do the pirates, though, it seems to me. They usually aren't big proponents on being able to control your data.

Information wants to be free? Well, part of freeing something is that you can lose it forever.

chii• 14 years ago

"Information wants to be free? Well, part of freeing something is that you can lose it forever."

hang on, thats not right! Being free here means, free to obtain, reuse and distribute. Right now, the information is most decidely NOT free, because the feds are in control of it.

They could've made a copy of the data as evidence - there isn't any need at all to remove the servers. This is digital data, the hardware has absolutely no bearing on the correctness of the evidence. I bet they were somehow 'persuaded' by the MAFIAA to sieze the hardware. I feel its unfair that lobby groups has enough power to use public money to achieve their goals.

MegaUpload users plan to sue the FBI over lost files

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