“The United States Vs. You (and Kim Dotcom)”, A Story By Megaupload’s Founder

[Guest Ethan]

“The United States Vs. You (and Kim Dotcom)”, A Story By Megaupload’s Founder

Signed and written by Kim Dotcom, the 48-pages long white paper is breaking the Megaupload case into small pieces. Let’s take a quick look at the highlight features of his statement.

“The United States vs. You (and Kim Dotcom)” is Kim’s story on how the United States chose to seize his business (Megaupload). What happened “represents one of the clearest examples of prosecutorial overreach in recent history,” the document explains.

The white paper goes on to remind about the failure of SOPA, and how the US government chose Megaupload as a target. It reminds the reader about a legal precedent, when, on April the 18^th 2013, a court ruled that YouTube is not responsible for what its users upload (as long as the company can prove that it was not unaware of the infringement). The same clemency could have been given to Megaupload, but did that happen? As we all know, it didn’t.

Citing Professor Goldman, we find that:

[T]he government’s prosecution of Megaupload demonstrates the implications of the government acting as a proxy for private commercial interests. The government is using its enforcement powers to accomplish what most copyright owners haven’t been willing to do in civil court (i.e., sue Megaupload for infringement); and the government is doing so by using its incredibly powerful discovery and enforcement tools that vastly exceed the tools available in civil enforcement; and the government’s bringing the prosecution in part because of the revolving door between government and the content industry (where some of the decision-makers green-lighting the enforcement action probably worked shoulder-to-shoulder with the copyright owners making the request) plus the Obama administration’s desire to curry continued favor and campaign contributions from well-heeled sources.

This is where Kim made a terrible mistake, that of collaborating with US authorities in another case (read more here). Meanwhile, US investigators were gathering incriminating data on Megaupload, ultimately leading to the questionable seizure of the domain.

Kim’s white document is full of interesting details about the whole fiasco, suggesting some pretty wild ideas (including that of being a scapegoat) about why Megaupload was targeted and not Rapidshare instead.

“The United States Vs. You” also reminds us about Aaron Swartz, a young and brilliant mind who took his own life.

“The unfortunate case of Aaron Swartz also comes to mind. Swartz was a young internet entrepreneur – founder of Infogami and co-founder of Reddit and RSS co- developer – an activist for government reform, digital rights and civil liberties, and a vocal opponent of SOPA. He was indicted in 2011 for allegedly attaching a laptop to MIT’s computer network and downloading a large number of articles from an archive of academic journals. The prosecution alleged that Swartz intended to make the papers available on P2P file-sharing sites,” Kim’s paper reads.

Tragically, Aaron Swartz killed himself on January 11, 2013, about two weeks before a significant evidence suppression hearing in his legal case. Shortly after Swartz’s death, his attorney sent a letter to the Office of Professional Responsibility of the U.S. Department of Justice, requesting an inquiry into the conduct of the lead prosecutor, Assistant U.S. Attorney Stephen Heymann. According to Swartz’s lawyer:

. . . AUSA Heymann appears to have failed timely to disclose exculpatory evidence relevant to Mr. Swartz’s pending motion to suppress. Indeed, evidence suggests AUSA Heymann may have misrepresented to the Court the extent of the federal government’s involvement in the investigation into Mr. Swartz’s conduct prior to the application for certain search warrants.

Second, AUSA Heymann appears to have abused his discretion when he attempted to coerce Mr. Swartz into foregoing his right to a trial by pleading guilty. Specifically, AUSA Heymann offered Mr. Swartz four to six months in prison for a guilty plea, while threatening to seek over seven years in prison if Mr. Swartz chose to go to trial.