Digital Legal MegaUpload Timeline

EFF calls on US court to act over MegaUpload data in limbo

By | Published on Monday 28 May 2012


Former MegaUpload customer Kyle Goodwin and the Electronic Frontier Foundation have called on the federal court in Virginia to figure out a way to return files the video maker had stored on the file-transfer platform when it was taken offline by US authorities in January, having become exasperated with talks between other parties regards the lost MegaUpload data.

As much previously reported, while the majority of the content stored on the MegaUpload servers in January, when the feds switched off the service after ordering the arrests of seven of the company’s executives around the world, was almost certainly copyright infringing material, a portion was original work created by MegaUpload’s customers, and by switching of all of the site’s cyber-lockers off without warning those people have now lost access to their own content. Goodwin, who films high school sporting events, is one such former customer.

The American company that MegaUpload hired server space from, Carpathia Hosting, is still sitting on all that data, but is keen to wipe it because it is filling up a warehouse full of computers that are currently unusable. Though the firm has so far not pressed the delete key, mainly because of fears that the likes of Goodwin might sue down the line if they do.

Meanwhile lawyers for MegaUpload, fighting charges against their client of copyright infringement, money laundering and racketeering, have suggested that the Mega company could start paying Carpathia rental fees again, or just buy the servers outright, and then return legitimate data to its former customers, though it would need access to seized funds to do so. Both the US authorities and the American movie industry have opposed that proposal though, fearing the Mega chiefs may simply take the servers outside of the USA and relaunch their service.

However, the Motion Picture Association Of America doesn’t want the old Mega data to be deleted either, because it reckons content on there is needed as evidence for when it launches the inevitable civil proceedings against MegaUpload and its owners. But Neil MacBride, the US Attorney for the Eastern District Of Virginia, has said he doesn’t care if the files are wiped, because he has all the evidence he needs, and former MegaUpload customers like Goodwin should have read the small print of the now defunct service’s terms, which warned that data might just disappear overnight.

All these arguments went before a US judge in mid-April, and he expressed sympathies with most parties before proposing everyone sit down outside the courtroom and reach a deal. Judge Liam O’Grady originally set a two week deadline, but six weeks on no agreement has been reached, and Goodwin has seemingly lost all patience, believing that all the other key players in this squabble have no incentive to get a deal done quickly because it’s not their data that is currently inaccessible.

For the EFF, which is helping Goodwin, this issue has wide-reaching implications for the rapidly growing cloud-storage sector, because if legitimate users of such services are in danger of losing their data when government departments or rights owners swoop on illegitimate uploaders, then people are going to stop using those services altogether. And with neither the US government nor the rights owners sticking up for the legitimate little guy who’s lost his data, the EFF says it’s the court’s job to champion his cause.

According to C-Net, in a new court filing last week, the EFF said that it “is of paramount importance” that people like Goodwin are reunited with their data, “not just to preserve Mr Goodwin’s rights, but to address the government’s apparent disregard for the effects its increasing use of domain and other digital seizure mechanisms may have on the innocent users of cloud computing services”.

The campaigning group added: “Given that the use of cloud computing services is already widespread and poised to grow exponentially in the next few years, this court should establish procedures to ensure that such innocent users do not become regular collateral damage. The government has refused to even consider Mr Goodwin’s proposals”.

Actually, the US government might be about to change its stance on the MegaUpload data, and particularly the viewpoint that it can all be deleted, given reports this weekend that FBI officials have found footage of child abuse amongst some of the files that were previously seized. While the presence of such material will not be relevant to the criminal proceedings against MegaUpload and its bosses, given there is no evidence they were aware of its existence, it could result in a second set of criminal proceedings being launched with regards the former MegaUpload servers, which would likely mean the data on those computers would be rescued from deletion, though would only further complicate matters with regards reconnecting former customers with their files.

Finally in MegaUpload news today, a German magazine called Stern has run a piece on its founder, German entrepreneur Kim ‘Dotcom’ Schmitz, who is currently living in New Zealand and fighting attempts by the American authorities to extradite him to the US. Quoting various former associates and even a former teacher, Schmitz is portrayed as a childish, narcissistic attention seeker who spent money “like a big kid who wanted to amuse himself with no thought about the consequences”. Presumably none of those sources will be called as character witnesses should the criminal case in America ever come to court.