US Government is a Website Vandal

The US government in its haste to support big businesses seized a bunch of uploading sites. They claim big business loses money due to uploading copyright material to servers. Tons of data is at risk of being deleted. Certainly some of that data is an illegal copy but much is not and folks who have used uploading sites in good faith are now threatened with losing their data with no due process. The sticking points are that MegaUpload’s funds have been seized as well and they cannot pay the bills for storage and users cannot access their own data to move it.

I can see a lot of lawsuits in the future and liability for taxpayers who may have to pay the bills. I can see people all over the world refusing to store any data on any server in US jurisdiction. This is yet another sign that the USA is going down the technological drain. The world does not need the bureaucracy of the US messing up IT.

see Feds: Megaupload User Data Could Be Gone Thursday

and

Megaupload users face data deletion US prosecutors warn

About Robert Pogson

I am a retired teacher in Canada. I taught in the subject areas where I have worked for almost forty years: maths, physics, chemistry and computers. I love hunting, fishing, picking berries and mushrooms, too.
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24 Responses to US Government is a Website Vandal

  1. oiaohm says:

    Ivan “you still have yet to prove there were any legitimate users.”

    That is the problem EFF only needs to find 1 legitimate user to bring the warrants unstuck. They have found more than that. There is a court case sueing the FBI in the courts. If they win the warrant could be rendered illegal due to require due process of using a warrant was not followed.

    Warrants have due process in how they must be applied. Ivan. This is where the big problem is.

    Just because You get a Warrant to search a house You don’t have the right to take items from that house that don’t own to the case. If the building has to be secured for some reason. You also don’t have the right withhold items that don’t belong to the case from being returned to the owners of them.

    You are meant to insure the safety of those items until they can be returned as well.

    IVAN there are two levels of due process. 1 is to get the warrant. The other most critical is due process covering usage of a warrant.

    Most common case for evidence not being usable in court is not that a warrant was not issued but that due process of using the warrant was breached.

    Yes its more simple to get illegally collected evidence into a court. That it is to get warrant collected evidence into the court where due process of warrant usage has not been followed.

    Problem with breaching due process using a warrant is that all evidence collected using a warrant where the due process of using a warrant is inadmissible as evidence. Worse all evidence collect that way is classed as tainted and no warrant can be taken out to make that evidence usable in court.

    Yes illegally collected without warrant there are ways of writing warrants to get that stuff into courts. But it does have a price of putting a few people in jail.

    Just because you have a warrant you cannot do what ever you like.

    Due process to get warrant I agree was done. Due process required to use Warrant providing the bystanders with safety was skipped so possibly voiding the warrant.

    Its like hitting a drug lab with a valid warrant and it explodes and someone walking through the property dies. Due to bystanders safety not being taken into account the warrant evidence is void.

    Due process on warrants are to make sure police are not reckless. Don’t shot bullets around in random directions and so on. Since it voids the warrant.

    The FBI has been reckless.

    IVAN you have a death wish if you allow warrants to be applied without due process control over how they are applied. This removes polices requirement when applying a warrant to protect your ass.

  2. Ivan says:

    “Ivan your idea of due process is wrong you need to research what due process fully requires.”

    On the contrary, they had warrants. That requires judicial oversight. That is due process.

    If Mr. Dotcom were being held in Gitmo and being water-boarded, you might have an argument about due process not being followed. But he’s not. So you don’t.

    @ Bob, you still have yet to prove there were any legitimate users.

  3. oiaohm says:

    Robert Pogson I would not say a weak case. I would say a poorly run case. If you have to personally attack legal console on the other side. What is called pounding the table.

    It is normally to distract everyone from the fact you have screwed the case up. You have taken a perfect good case and ruined it. So now you need a scape goat for when the case completely collapses on top of you due to your error so your boss don’t fire you.

    The party pounding the table has made a huge error and is attempting to hide it.

    There are many things in the Megaupload case that could take Megaupload down for good. This is turning into another O.J. Simpson Murder case. Everyone can see that the party is guilty. But due to prosecutor not doing there job right. The guilty party has high odds of getting off scott free.

    Run properly with all the i dotted and t crossed there should be no way for Megaupload to get out. Because it would be a simple cut and dried case of not conforming to DCMA requirements in there home country and the USA. So gulity. Trial should be over really quickly as well.

    Now the issues I am raising is how Megaupload will most likely get out is that paper work was not done correctly. Warrants look illegally used. A illegally used Warrant any evidence collected cannot be used in court. So yes by by the evidence against Megaupload because they were not returning peoples files as they should have been.

    The EFF has collected lots of money over the years from lawyers attempting to protect copyright without doing the paperwork correctly.

    I will repeat. I am not impressed by the prosecutor in the Megaupload case in no way shape or form. Errors done by prosecutor are grave errors bad enough to attempted Disbarment of the prosecutor.

    Yes anyone claiming due process has been followed has not understood the legal requirements on the prosecutor. Prosecutor is only meant to harm the person they are Prosecuting they are meant to take due care to reduce harm on everyone else to the min possible.

    Really in a lot of ways to save the case. One of the best actions right now would be to perform the disbarment of the prosecutor so triggering a miss trial and start over with a new prosecutor doing everything right.

    If this goes through with current prosecutor the case risks being lost with double jeopardy be disruptive to any future prosecution attempts.

    Yes legally at times the best thing you can do is a Miss trial. Should you need todo a miss trial if you did your stuff correct no you should not. Miss trial exists for when legal team has stuffed up in a critically bad way. Someone has to take responsibility for wasting the courts time with improperly prepared case.

    IVAN you were not understanding me. I don’t see Megaupload as not gulity. Just because I see them kind the same way as you does not mean I have to be impressed with the prosecutor.

    Ivan your idea of due process is wrong you need to research what due process fully requires. Most people know the due process that must be performed against the criminal. Most people don’t know the due process that must be followed to protect the non criminals.

  4. EFF actually filed a brief in a similar affair and the reply by the prosecution consisted solely of insults rather than anything substantive…

    This is a sure sign that the prosecution has a weak case.

  5. Ivan wrote, “Of course these legitimate users, if they exist and I highly doubt they do, are conveniently silent in all of this.”

    EFF: “When the United States Government shut down access to Megaupload, a multitude of innocent users who stored legitimate, non-infringing files on the cloud-storage service were left with no means to access their data.”

  6. oiaohm says:

    Ivan the simple point is the law is very straight forwards.
    “Were they distributing the source iso’s alongside or are you ignoring the gpl violations (arguably another act of piracy) to support your “just” cause?”
    In fact a few were shipping with source.

    If due process had been followed there would be no need for the EFF to step in.

    The due process should have been.
    Number 1 full copy of megaupload would have been taken by the prosecutor.
    Number 2 the prosecutor would have placed a open notice with way for legal people to recover there items.

    Now if no legal people turned up it would help the prosecutors case. Yes returning the legal people data is part of collection of information to possibility assist prosecution. If the prosecutor has done it.

    Yes I have considered the case they were actively trying not to look like criminals. How to you collect the evidence to prove that. Ivan

    Answer is provide a system to return the files by physical courier. So you get exact head counts on who the legal people were and what accounts.

    No matter how you look at this case the prosecution has dropped the ball big time. If they are lucky they will get away with it. A case like this should be a slam dunk if due process is followed.

    Anyone who knows me I am anti-piracy. I want to see people who do large scale piracy go away for a long time. It helps no one longterm to steal.

    Break of due process hurts people and possibly cause case to fail. So I am not happy with the prosecutor by any means.

  7. Ivan says:

    “I know debian iso and other FOSS iso files”

    Really, “Debian iso”… well that just changes everything.

    Were they distributing the source iso’s alongside or are you ignoring the gpl violations (arguably another act of piracy) to support your “just” cause?

    I don’t expect you to realize they were actively trying to _not_ _look_ _like_ criminals. Creating fake users and hosting linux iso’s with scattered YouTube content is the perfect way to say “Hey! Look, we’re not criminals! We have a legitimate purpose!”

  8. oiaohm says:

    Securing the hosting is also part of securing the evidence for the case. The Prosecutor has made many mistakes in this case.

  9. oiaohm says:

    Ivan due process has not been followed. http://www.megaretrieval.com/
    EFF doing this could break the complete case.

    I know debian iso and other FOSS iso files were on megaupload. Legal to share and all. Yes there were true legal users of megaupload.

    This is where the prosecutor is in big trouble.

    “They had warrants. Due process was and is being followed.”

    Part of the due process of warrants is reducing risk to bystanders. So even that they had warrants there is a case the warrants was illegally applied. So ruining the complete case.

    Due care with legal users data was required. Prosecutor shut down all bank accounts of megaupload and did not set up that the hosting holding megaupload would still get paid. This is a screw up of screw ups.

  10. Ivan says:

    “Do police arrest everyone found in the building for every crime?”

    If all of those people in the building were facilitating or perpetrating the crime, yes.

    “Whether they are the same or different servers or have the same or different hosting companies, due process should follow.”

    They had warrants. Due process was and is being followed.

    If you were hosting all of your files on Megaupload with no local backups, you’ve gotten what you deserve.

    Heartless? Maybe, but there are reasons why you don’t buy your medication from the friendly neighborhood heroin dealer, Bob, which is essentially what the two or three legitimate users for Megaupload were doing.

    Of course these legitimate users, if they exist and I highly doubt they do, are conveniently silent in all of this.

    “Do you want to nuke every city that has a criminal?”

    If you’ll excuse me I have to pick up my eyeball that just rolled out of its socket…

  11. Do police arrest everyone found in the building for every crime? That would destroy the hotel business, for example. Most crimes require “guilty knowledge” for prosecution. Why should my book which I am distributing via x.some.com be confiscated because someone has put an illegal copy on y.some.com? Whether they are the same or different servers or have the same or different hosting companies, due process should follow. There would be no evidence of crime in my action whereas the other guy is guilty. Do you want to nuke every city that has a criminal?

  12. Ivan says:

    “It’s the principle that the US government can trash any website under colour of protecting copyright.”

    Considering the number of YouTube “howto” videos with download links pointing to Megaupload and pirated games, movies, and software… I don’t see how you can say that with a straight face.

  13. oiaohm says:

    When we come down to it you will most likely find that the USA companies pushing this never put in a request for all shared links to the file to be removed in valid DMCA format. There is a chance that Megaupload gets off on a technically because the USA companies did not do there paperwork correctly.

    Yes you pain in but Hanson I caught the miss spelling from you. Yes it hard to stop.

  14. oiaohm says:

    –17 U.S.C. 512 and the Digital Millennium Copyright Act (“DMCA”).”–

    This is a stupid defect. New Zealand implementation of New Zealand DMCA is the USA law is copy paste bar the required forms where USA has been changed to New Zealand. Other than that everything is absolutely identical.

    That line can be taken as quoting New Zealand Law not USA law. The quote line for both is identical.

    This the the problem. DMCA exact identical wording bar the require forms exist in 2 countries.

    If US cits read that as US law when it not. There is a problem.

    “if you offer and advertise your service to US citizens, you can be held responsible, even if you are not in the US.”

    If the server is hosted in Australia that is not true. The breach as to be proven by Australian law before USA law can be applied over DMCA. The line does not place Australian hosted under USA law.

    Australia hosts are meant to send USA DMCA takedown back with a request for a correct format document to be sent back with a reference to it.

    The USA DMCA takedown notice is lacking particular items you need to legally do a take down in Australia.

    Key one is proof that you are acting validly for the copyright holder with contact information for the copyright holder.

    This section of the DMCA
    “A physical or electronic signature (i.e., /s/NAME) of a person authorized to act on behalf of the owner of the copyright that is allegedly infringed.”
    Is not good enough to pass Australian law. The copyright holder themselves must be contactable so the host can contact them if they suspect they got it validly. USA electronic signature is not accepted in Australia because they are not officially Australian proof of identity. Same is true in New Zealand.

    Second one is a full detailed description of the item.
    “Identification of the material that is claimed to be infringing and information reasonably sufficient to permit the service provider to locate the material.”
    This is also not good enough. There needs to be a description of what is inside the infringing item and where you suspect it was copied from. If its a rip from a dvd we need to be told that and what dvd you suspect it is ripped from. This way we can get a legal source of the item and confirm that it is stolen.

    Yes Australian sites might display in conformance with “compliance with 17 U.S.C. 512 and the Digital Millennium Copyright Act (“DMCA”)”. But we don’t take USA DMCA forms. We need Australian forms with more detail. We obey the DMCA as long as required information is provided in conformance with Australian law. “Compliance” does not mean having to follow exactly to the letter with out any other extra conditions.

    Reason if we do a take down and its wrong we can be punished. USA firms have a bad habit of not dotting there i and crossing there t over this stuff. Making the presume that just because USA DCMA conformance is displayed that only USA DCMA quality documents have to be provided for a take down.

    USA DCMA documents are the bare min you local country is allowed to place extra hoops to jump through on top before a take down can be done. A few ISP’s here have had the issue that the USA companies have refused to send more details when requested. Because it requires downloading the file and viewing it. Matching file names is not proof of a DCMA breach.

    Yes a New Zealand guy does not have requirement to send defective DCMA back can legally just delete it. It did not contain the words New Zealand it did not apply to them.

    USA law is not international law. “common interpretation” is correct. Different documents are required.

    Yes the evils of dealing internationally. Even if two countries implement the same law you still need to use the right countries documents or your claim is null and void. USA format legal document don’t apply in New Zealand and New Zealand format legal documents don’t apply in the USA.

    You have to use the right country documents. When a company is hosted in many countries this can become a complete pain in but to do takedown notices.

    Worst one I have come across it required was 48 documents all take down notices for the 1 file. Just to be legally in order for everywhere the file was stored so none of the local laws got broken by a illegal take down.

    Also here is a horrid catch. Megaupload merged identical files in there file storage. Legally they could not delete the file either by New Zealand law.

    If a person had uploaded it as a private backup to the server and not shared it. This was legal and above board. Sharing was where the illegal bits came in.

    Should megaupload possible deleted all share links to a file when copyright holder turned up. Quite possibly. Never been tested in court might be illegal under New Zealand law.

    Yes some of what the USA guys are asking for was illegal under New Zealand law(ie straight up deleting master file). Because you are allowed todo private backups over there even to a server.

    Now people who non infringing data is in there that the USA government is holding for trial. They better work out how to give it back. Destruction of property is quite a serous offensive. Audit before release is fine.

    You should not commit a crime as part of prosecuting another crime.

  15. Hanson says:

    Oops, the misspelled words again. Not DCMA, it’s DMCA. I apologize. Again.

    Besides, oiaohm, the DMCA is strictly speaking only applicable within the US, since it’s US copyright law. But as MegaUpload put it (you can find it in the usual search engine caches):

    “Megaupload.net is in compliance with 17 U.S.C. 512 and the Digital Millennium Copyright Act (“DMCA”).”

    There was a registered DMCA agent.

    New Zealand servers? Who cares? Also, the common interpretation of US law these days goes like this: if you offer and advertise your service to US citizens, you can be held responsible, even if you are not in the US.

  16. oiaohm says:

    oldman and Hanson here is the thing I don’t like.

    Why are Megaupload people being punished in the USA. Because they used USA paypal. Could they been punished for possible copyright infringement under New Zealand law yes they could have for the first round at least. Without that money transaction in the USA they would have required complete handling by New Zealand counts.

    Hanson Megaupload is a New Zealand hosted company(core servers in New Zealand). USA DCMA takedown notices are not legal in that jurisdiction. There is a New Zealand equal. That is a case of a party sending the wrong paperwork should not be grounds for going to court. Yep New Zealand DCMA takedown notice. Breach of that would have to be fort out in the New Zealand courts.

    There are quite a few USA companies that don’t respect that other companies are in other jurisdictions and send the USA DCMA alone and expect it to work. Those need a major kick up ass.

    The joke about pirates I will put in in context the owner of Megaupload(yes that very big man) He past relations use to run a real pirate fleet. So joke about being modern day pirates is referring to his blood line.

    I am not saying Megaupload is non criminal by any means. There is a big issue with due process here.

    I knew there was a issue when one of the big Australian mod chip makers was forced to face USA court. Mod chips are legal in Australia. Same catch was using USA paypal. Australian goverment got up Paypal ribs after than so we do have an Australian hosted paypal that all Australian cits on paypal had to be migrated to. So removing the extraction problem.

    Just because someone uses a overseas money service should not mean that countries laws apply to them a head of there own.

  17. Hanson says:

    You’re right Pogson. One cannot know what users upload to a hosting site. One cannot check all uploads for copyright violations.

    BUT MEGAUPLOAD ACTIVELY ENCOURAGED COPYRIGHT VIOLATIONS BY AWARDING PEOPLE MONEY FOR UPLOADING POPULAR COPYRIGHTED MATERIAL!

    MegaUpload also did not comply with DCMA takedown notices.

    Kim Schmitz is a criminal. Case closed.

    And if someone indeed used MegaUpload for legitimate things, he or she should have his or her head examined. That’s the equivalent of giving your money to your local shady bookie.

  18. oldman says:

    “oldman, do you understand that businesses and families have uploaded files there? These folks own the copyright on their stuff and the US government is putting it in jeopardy.”

    Again, DID YOU READ WHAT WAS RECOUNTED, YES OR NO!

    and if you have do you understand its implications?

  19. oldman, do you understand that businesses and families have uploaded files there? These folks own the copyright on their stuff and the US government is putting it in jeopardy.

  20. I have no interest in MegaUpload. It’s the principle that the US government can trash any website under colour of protecting copyright.

  21. Ivan says:

    I can’t believe that you’d actually support Kim Dotcom’s illegitimate business in your anti-American zeal, Bob.

    The startup money for Megaupload was gained through embezzlement. He’s been convicted of insider trading. He’s been convicted of selling stolen credit card numbers. The vast majority of the files on Megaupload were pirated content that the users had no right to redistribute.

    By any measure of socially acceptable behavior, the man is a slime ball worthy of everyone’s contempt.

    And you support him… way to examine the facts on the case.

  22. oldman says:

    “oldman, do you believe a shipping company is responsible for all the goods shipped? How about an FTP site? Do you you know everything that’s in your users’ files?”

    Did you READ the article Pog. Do you understand what these people have admitted?

  23. oldman, do you believe a shipping company is responsible for all the goods shipped? How about an FTP site? Do you you know everything that’s in your users’ files?

  24. oldman says:

    “The world does not need the bureaucracy of the US messing up IT.”

    Really? You may want to consider some of the information passed on in this article

    http://www.tuftsdaily.com/editorial-megaupload-shutdown-is-justified-1.2689964#.TybIsflWJBk

    I especially like this tidbit that was passed on

    “…One email exchange between two high-level MegaUpload employees has one of them saying, “we have a funny business … modern day pirates :)” to which the other responds, “we’re not pirates, we’re just providing shipping services to pirates :)…” ‘

    The New Zealand Authorities apparently thought enough of this and other information provided by the US to arrest those involved.

    Perhaps you might wish to consider your position?

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