Mega lawyers argue that US Authorities should preserve and pay to keep blocked data

September 2015



Lawyers for MegaUpload are asking the courts to ensure that the American government pays to preserve the servers that contain files once uploaded to the defunct file-transfer platform, so that the data stored on them can be kept as evidence, and be ultimately returned to the people who uploaded the content in the first place.


US authorities took controversial file-transfer set-up MegaUpload offline in 2012, at the same time charging its management with various crimes. Users of the service lost access to files they were storing on the company’s servers without warning and whilst it is alleged much of the material was infringing – much was also quite legitimate. MegaUpload server space was rented from other companies, and one server company in Europe, Leaseweb, then deleted the MegaUpload data it had stored. However, the biggest server firm, US-based Carpathia, is still storing its former MegaUpload files, not least because the American authorities said they might need access to them as part of the criminal investigation into the former file-transfer service and its management. Understandably, Carpathia, which was recently acquired by another company called QTS, is not keen on carrying on  covering the costs of storage. The server company went to court earlier this month seeking permission to wipe those hard-disks clean once and for all.


The former MegaUpload management – and especially founder Kim Dotcom –(who is currently fighting extradition in New Zealand) are fighting this proposal, as is the Electronic Frontier Foundation, which has been assisting some of those who lost their files during the 2012 shutdown. The MegaUpload position is that they might need access to the servers to gather evidence to ascertain the strength of the case against them, while both MegaUpload and the EFF maintain hope that former Mega customers might one day get their content back.


According to Torrentfreak, in a new court filing, lawyers for the former MegaUpload managers submit: “The database servers can show safe harbor compliance. The web servers can show the copyright neutral nature of the interface design. The content servers in combination with other data can show fair use and substantial non-infringing uses and users”.


The filing goes on to submit that the US authorities’ attitude to the blocked MegaUpload data might be more than indifference (or even arrogance) towards affected customers, and may be deliberate attempt to strengthen their case in court (should America ever successfully extradite Dotcom and others) saying ““The Government is burdened with a weak case to present in a criminal trial and it wants to prevent a strong defense”.


The MegaUpload team also argue that as the U.S. authorities have only taken a small sample of data from the Carpathia servers to show MegaUpload being used to infringe copyright, this might not show the full picture of the defunct operation arguing:  “The government cannot criminally and civilly indict all the revenues arising out of all the global users of the MegaUpload cloud storage site in the largest copyright case in history, while at the same time cherry picking a sliver evidence to retain for trial and throwing away the rest to manifestly prevent the mounting of a fair defence”.


The MegaUpload lawyers appear to concede that it is unfair that Carpathia itself should continue to cover the costs of storing the data, suggesting that the US government should buy and store the servers until progress can be made on the legal case against Dotcom and his former colleagues saying “The government should bear the cost of such purchase and preservation”. and

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