Megaupload submitted a brief today to the United States Federal Court in Virginia in support of its motion to dismiss. We provide a portion of the introduction below - the brief can be found here.
Nearly ten months have elapsed since Defendant Megaupload Limited (“Megaupload”) was branded a criminal, yet it has had no opportunity to date to clear its name or to challenge the charges against it. Ten months have elapsed since every penny of the company’s assets was frozen, yet there has been no pre or post-seizure hearing for Megaupload to contest the propriety of that action. During these past ten months, Megaupload—once estimated to be the 13th most frequently visited website on the entire Internet (See Dkt. 34 at ¶ 3)—has been wiped out for all intents and purposes. All this time, the Government has not complied with Rule 4, has not attempted to comply with Rule 4, and has not identified any prospect that it might comply with Rule 4 any time in the foreseeable future. Moreover, Megaupload’s servers—which house the universe of relevant evidence against which the Government’s allegations against Megaupload might potentially be fully and fairly assessed one day—have been taken offline for lack of funding (while the Government sits on all the assets it has seized from Megaupload) and have spent much of this year on the floor of a warehouse. And Megaupload’s innocent consumers have now gone nearly ten months without any access to their property.
The ability of a criminal defendant to mount, not only in theory but also in practice, a fair defense should be beyond question. Sadly, the Government’s conduct of this case is to the contrary, raising grave questions about whether the Government is out to play judge, jury, executioner, and asset collector without benefit of the adversarial process and protections, including those of Rule 4, to which this corporation is entitled. Certainly the prosecution to date—by freezing assets, by foreswearing proper service, and by steadfastly refusing to lift a finger or spend a cent to prevent ongoing spoliation of server evidence (not to mention deprivation of innocent users’ rightful property)—has denied Megaupload any semblance of due process.