Megaupload, the Copyright Lobby,
and the Future
The United States v. You (and Kim Dotcom)
a White Paper by Robert Amsterdam
and Ira P. Rothken
Snippet from the White paper:
The criminal prosecution of Megaupload and Kim Dotcom is purportedly the “largest copyright case in history,” involving tens of millions of users around the world, and yet it is founded on highly dubious legal principles and apparently propelled by the White House’s desire to mollify the motion picture industry in exchange for campaign contributions and political support.
The U.S. government’s attack on the popular cloud storage service Megaupload and the dramatized arrest of Kim Dotcom, the company’s principal founder – together with the seizure of all their worldwide assets – represents one of the clearest examples of prosecutorial overreach in recent history. One day after the U.S. Congress failed to enact the controversial Stop Online Piracy Act (SOPA), the executive branch of the U.S. government commandeered Megaupload in a coordinated global take-down, and drew battle lines between digital rights advocates, technology innovators and ordinary information consumers on the one side, and Hollywood and the rest of the Copyright Lobby on the other.
Megaupload operated for seven years as a successful cloud storage business that enabled tens of millions of users around the world to upload and download content of the users’ own choosing and initiative. The spectrum of content ran from (to name just a few) family photos, artistic designs, business archives, academic coursework, legitimately purchased files, videos and music, and – as with any other cloud storage service – some potentially infringing material. Despite Megaupload’s lawful uses, the U.S. government has charged the company and its executives under the Racketeer Influenced and Corrupt Organizations (RICO) Act, and has branded the company, its personnel and its tens of millions of users a “criminal enterprise” dedicated solely to infringing U.S. copyright laws.
The U.S. government’s case against Megaupload is grounded in a theory of criminal secondary copyright infringement. In other words, the prosecution seeks to hold Megaupload and its executives criminally responsible for alleged infringement by the company’s third-party cloud storage users. The problem with the theory, however, is that secondary copyright infringement is not – nor has it ever been – a crime in the United States. The federal courts lack any power to criminalize secondary copyright infringement; the U.S. Congress alone has such authority, and it has not done so.