MegaUpload says raid warrants dishonestly secured
By Chris Cooke | Published on Tuesday 8 January 2013
Lawyers for MegaUpload chief Kim ‘Dotcom’ Schmitz have filed new papers with the US courts accusing America’s Department Of Justice of deliberately misleading the controversial file-transfer company, and judges for that matter, in order to pursue its criminal case against their clients.
This relates to previously made allegations that a chunk of the unlicensed movie content stored on the Mega platform, that has been listed in the criminal case against Dotcom and his former company, wasn’t deleted by the file-transfer firm because it was evidence in a separate DoJ investigation into alleged copyright infringements committed by a MegaUpload customer.
One of the core allegations in the infringement case against Dotcom et al is that MegaUpload operated a deliberately shoddy takedown system, so that it could appear to comply with American copyright law (that says web operators must remove unlicensed material if made aware of it by a copyright owner), but at the same time have the steady supply of movies, TV shows and music videos that generated lucrative traffic.
Dotcom, however, denies that charge, and argues that a chunk of the unlicensed movie content not removed from the Mega platform for over a year, identified as incriminating evidence in the case against the Mega founder, was only there because it was linked to another DoJ investigation, and Team Mega didn’t want to hinder that case by deleting the files.
He first made these claims last year, saying he’d been advised he could possibly sue the US government and/or the Hollywood studios for closing down his business on the back of evidence which, Team Mega would allege, had been dishonestly presented.
But it seems that lawyer Ira Rothken reckons these allegations could also be used to hinder the criminal case against Dotcom and the Mega business, because he says that the US authorities secured the warrants that allowed the raids on MegaUpload’s American server facilities just under a year ago by withholding information about their key evidence against the file-transfer company.
In court papers filed last week, Rothken alleges that the American government secured said warrants based on affidavits that referenced the movie files from the investigation in which Mega had assisted, but without mentioning the circumstances of that earlier investigation.
Arguing that the DoJ deliberately withheld that crucial information to help their case against Mega, Rothken wrote last week: “[These affidavits] purport to offer as proof that MegaUpload had requisite knowledge [and] suggest that MegaUpload was warned of its potentially criminal complicity yet persisted in hosting the files without concern for their illegal content. In short, [they] paint MegaUpload as a brazen scofflaw”.
“[But this] isn’t the case”, he continued, “because MegaUpload purposely left those files in place in order to cooperate with the Justice Department. MegaUpload had every reason to retain those files in good faith because the government had sought and obtained MegaUpload’s cooperation in retrieving the files and warned that alerting users to the existence of the warrant and the government’s interest in the files could compromise the investigation”.
He concluded: “The government’s affidavits underpinning the warrants omitted critical, exculpatory information regarding whether, why and how MegaUpload knew it was hosting criminally infringing files”. It remains to be seen how the US courts respond to Rothken’s latest arguments.
As previously reported, efforts to extradite Dotcom from New Zealand are ongoing, but are unlikely to now reach court until early summer. Meanwhile, Dotcom will launch a new Mega file-transfer service, based outside the US, later this month.