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US Attorney doesn’t want to help “innocent” Mega users

By | Published on Wednesday 4 April 2012

Neil MacBride

Neil MacBride, the US Attorney for the Eastern District Of Virginia, has a message for anyone who lost personal data when his office swooped on the MegaUpload operation in January: “Fuck you, I’m a fucking US Attorney and I can do whatever I fucking like”. Well, I’m paraphrasing slightly, but that’s certainly the sentiment expressed by the official in his latest court submission relating to the Mega saga.

As much previously reported, when the US authorities took the Mega websites offline amidst allegations of copyright infringement, money laundering and racketeering, while the majority of the files removed from public access was probably unlicensed music, movie and TV content, some of the digital firm’s customers will have been using the cloud-lockers they rented from the company to store legitimate content that they had created and/or owned, and when the plug was pulled access to that data was cut off too.

Mega’s servers were actually owned by two other hosting companies, and in particular Carpathia Hosting, and bosses there have been agonising over what to do with all the bits of hardware now sitting in their building unused, given the Mega company, with its assets frozen, is no longer able to pay rental fees. Prosecutors say they have all they need from the Mega servers and are happy for all remaining data to be wiped, and the servers put to use elsewhere. But the Mega defence team, legal reps for the Motion Picture Association Of America and various former Mega customers have all requested access to the old servers, either to use as evidence in court, or in the case of former customers to retrieve lost data.

Various proposals to make that happen have been put forward – including letting Mega buy the servers itself and then having its lawyers oversee the return of legitimate data to former customers, though, as assumed, that would require the US authorities freeing up about a million of the digital company’s frozen assets, which said authorities have said they won’t do. The MPAA, which opposed that particular proposal anyway, instead advocated that the federal government in the US take ownership of Carpathia’s hardware, and oversee the data return process, ensuring access to the unlicensed movie content sitting on the Mega platform is first blocked.

Carpathia is open to all options, though really just wants a speedy resolution, because while those servers sit unused it is losing money. The speediest solution would be to just delete all the data sitting on the former Mega servers, though Carpathia is concerned doing so might open it up to civil litigation from any former customers of the file-storage company who lose their files as a result. To that end, amongst various filings made to the courts on this matter, Carpathia requested a protective order to protect it from any such lawsuits.

But MacBride is basically of the opinion that all that inaccessible Mega data is not his or the court’s problem, and Carpathia should just get on with deleting it all, like he said the company could back in January. In his court filing, MacBride was dismissive of Carpathia’s claims regards the extent of its financial burden in holding onto the Mega data, adding that anyway it was doing so if its own accord, and not at the US government’s request. This was a criminal matter, he added, and civil litigation was not a matter for him or the court.

On other matters, MacBride said that he shared the MPAA’s concerns that any move to restore access for former Mega customers to their data might result in further distribution of all the unlicensed movie files stored on the servers, though having washed his hands of that data he didn’t propose any solutions as to how legitimate and unlicensed content could be distinguished. Though he did add that there had been allegations that some pictures of child abuse may have been stored on the Mega platform somewhere, and if those allegations were true, the authorities would take a new interest in the data, albeit in a way that would probably further complicate the reconnection of former users with their files.

As previously reported, one former Mega customer who has lost access to his data (his local copy of which was also lost when a hard disk packed up), has filed papers with the courts – backed by the Electronic Frontier Foundation – calling on judges to intervene to ensure “innocent users” are not negatively impacted by the criminal case against MegaUpload and its bosses. But that hasn’t affected MacBride’s resolve on this issue. While admitting the case, involving Kyle Goodwin, was “unfortunate”, the US Attorney says MegaUpload’s own terms and conditions said users should still keep local back ups of uploaded content, and that if Mega was to cease operations it would not be liable for any lost data.

According to C-Net, MacBride writes: “The ‘innocent user’ concerns articulated by Carpathia – and expanded upon in the supporting brief of Kyle Goodwin – appear to be undermined by’s own terms of service. [Users were cautioned] not to keep the sole copy of any document on, and stated that’s duty to preserve data ends when, at its sole discretion and without any required notice, ceases operations. While Mr Goodwin’s situation is unfortunate, it is not a matter to be resolved as part of the criminal case”.

Of course MacBride is almost certainly right on all the points he raises legally speaking, though as the Electronic Frontier Foundation has pointed out, we are in uncharted waters here, and any court rulings on this matter could set important precedents, which could impact on both the cloud-locker sector and the copyright industries.

The former because – whatever the small print says – cloud lockers are sold on the idea that as a customer your content is always safe and readily available wherever you are. The more cloud lockers go offline overnight without warning, for whatever reason, the less compelling renting virtual locker space becomes.

The latter because if legitimate Mega users do lose their data here, they will blame the big movie studios, and probably by association the big records companies, who will be accused of using their power and influence to protect their own copyrights while gladly standing by as independent creators have their copyright works deleted by anonymous officials. While the number of people actually affected in that way might be minimal in the wider scheme of things, such an eventuality will further hinder the content industries in the public debate on copyright, which they are already woefully losing.

Because, while the big content owners may have scored some successes in the court rooms and legislative chambers of various countries around the world in recent years regards the protection of copyright online, in terms of public opinion the content industries are seen in the main as money-grabbing power-hungry monoliths, scrwing over artists and blocking digital innovation in a bid to protect their dying business models. That’s a grossly unfair depiction, but one nurtured by unwise litigation and DRM obsessions ten years ago, and a total failure to engage with the public at large on copyright issues to this day.

And public opinion does matter. Because copyrights are always hard to enforce at a micro level, and really rely on the public buying into the principles of copyright law and behaving responsibly. And because in the social media age, single issue campaigning groups can make powerful strikes, such as that which saw the years-in-development SOPA and PIPA anti-piracy bills in US Congress unceremoniously dropped after just 24 hours of public protest. Unfortunately for the big record companies, the actions of the US authorities and movie studios with regard to MegaUpload could further turn public opinion against them, which won’t help when SOPA and PIPA v2 go before America’s political decision makers.