US: "Megaupload's host is no innocent bystander"; May be a party to civil litigation

[signupdamnit]

Carpathia Hosting says it shouldn't have to heft costs of preserving MegaUpload's data, but U.S. attorney suggests managers should have predicted that partnering with a pirate site would be expensive.

Like Carpathia, most of the parties told U.S. District Judge Liam O'Grady they believe the government should pay for the preservation of the servers. U.S. officials disagree. O'Grady decided to send them all back to the negotiating table to try to work out a compromise.
Before he did that, O'Grady told Carpathia lawyers he had "sympathy" for their situation. That's when Prabhu cut loose on Carpathia.

Prabhu disputed the notion that the hosting service is just an innocent third party left holding the bag. He attacked the company's claims that managers were caught unaware by the charges leveled against MegaUpload.

Prabhu outlined how Carpathia had received subpoenas regarding MegaUpload's alleged copyright violations from the government as well those from civil complaints against MegaUpload. He told the judge that MegaUpload helped Carpathia generate $35 million. The attorney also said he had reason to believe that Carpathia may be a target for civil litigation.

http://news.cnet.com/8301-1023_3-574...ent-bystander/

[iSpyCams]

Yeah because there's no way the DMCA could be applied to a hosting company...

[Nautilus]

They should have kept their mouthes shut and simply wipe all of the MU servers clean when they still could do it - US gov expressed no interest in those in the beginning of MU case. Now instead of doing it right the right way and moving on they started to scream at every corner about the "freedom of speech" violated by evil gummint and how they want to "protect" MU customers, and just got what they were asking for - not only they're having to pay now to keep those servers available, but they're aslo facing charges themselves because of course in no way they were the innocent bystander in MU conspiracy but an active part of it. Idiots.

[Spudstr]

Originally Posted by Nautilus

They should have kept their mouthes shut and simply wipe all of the MU servers clean when they still could do it - US gov expressed no interest in those in the beginning of MU case. Now instead of doing it right the right way and moving on they started to scream at every corner about the "freedom of speech" violated by evil gummint and how they want to "protect" MU customers, and just got what they were asking for - not only they're having to pay now to keep those servers available, but they're aslo facing charges themselves because of course in no way they were the innocent bystander in MU conspiracy but an active part of it. Idiots.

you really don't know how this works. If the man comes down and asks for a copy of the data, the host must give them a copy of the data. You really can't say no to it, well you can and then the US marshals come in and lock down your facility and kick you out, put chains on the doors to datacenter cages etc. You can either work with them or get your ass handed to you by them. There are several laws/acts out there that providers have to abide by that forces them to comply.

9 times out of 10 the equipment is held hostage and the host, such as carpathia is out of luck and nothing they can do.

[gideongallery]

Originally Posted by pompousjohn

Yeah because there's no way the DMCA could be applied to a hosting company...

see that right there is the problem with the entire case

this is all an attempt to do an end run around the safe harbor provision AFTER the fact.

They should have gone to court with the evidence they claimed invalidated the safe harbor provision

allowed mega upload to defend their policy as compliment

and successfully won a ruling saying that mega upload was wrong BEFORE taking any assets.

Jay Prabhu and the government are covering their asses now

[gideongallery]

Originally Posted by Nautilus

They should have kept their mouthes shut and simply wipe all of the MU servers clean when they still could do it - US gov expressed no interest in those in the beginning of MU case. Now instead of doing it right the right way and moving on they started to scream at every corner about the "freedom of speech" violated by evil gummint and how they want to "protect" MU customers, and just got what they were asking for - not only they're having to pay now to keep those servers available, but they're aslo facing charges themselves because of course in no way they were the innocent bystander in MU conspiracy but an active part of it. Idiots.

Jay Prabhu and the government are basically saying

let us get away with destroying evidence or we will come after you too.

Do you seriously think that shit is going to fly

This guy may be a good lawyer but he sucks at PR.

[Nautilus]

Originally Posted by Spudstr

you really don't know how this works.

Maybe, but I still do not see it where the problem could be. If a client stopped paying to their host, they're no longer entitled to recieve a service. What's stopping a host from wiping their servers clean and putting them on sale again? US gov also said at first that they do not care for MU data because they have more than enough already to use as evidence. It was Carpathia who kept stirring up shit and only made things worse for them - they kept themselves in focus of attention and finally because of being constantly reminded US gov had a second thought on those data, and told Carpathia to keep them and foot the bill.

[Barry-xlovecam]

The DMCA provisions formalize a host or ISPs status similar a holder in due course's liability limitation.

However, if that host can be shown to be a knowing financial beneficiary of his client's criminal acts, a tough row to hoe as it would require a conspiracy be proven by the Prosecution, that host becomes a accessory to his client's criminal act if proven. Normally, this would be a real longshot to prove in court but as the indictment is under the RICO statute, and specific wording is toward conspirators;

18 USC § 1962 (d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.

I would think the Prosecutor would try to drag every potentially liable party into the case possible.

The servers were sized with a warrant as evidence in a criminal offense they are not forfeit at this point.

The loss of the servers are the least of the problems here -- we are talking conspiracy to a RICO action ...

[gideongallery]

Originally Posted by Nautilus

Maybe, but I still do not see it where the problem could be. If a client stopped paying to their host, they're no longer entitled to recieve a service. What's stopping a host from wiping their servers clean and putting them on sale again? US gov also said at first that they do not care for MU data because they have more than enough already to use as evidence. It was Carpathia who kept stirring up shit and only made things worse for them - they kept themselves in focus of attention and finally because of being constantly reminded US gov had a second thought on those data, and told Carpathia to keep them and foot the bill.

The only reason they stopped paying the bill was because the assets were taken

So that a circular argument and you know it. The government created the situation that results in data being destroyed.


eff study seems to state that 60% of the files were downloaded one time of less (clearly backup only)

not only is that a majority of non infringing use (vcr defence) but it also represents people who property is being destroyed by the government actions.

Remember mega upload is currently innocent because the legal system says your innocent until proven guilty.

So claiming they deserve to lose their property because they used a criminal organizations service is total bullshit.

[Barry-xlovecam]

Different issue than I thought from reading the excerpt of the OP in this thread

http://news.cnet.com/8301-31001_3-57...e-out-of-luck/

["T]he 'innocent user' concerns articulated by Carpathia -- and expanded upon in the supporting brief of Kyle Goodwin -- appear to be undermined by MegauUpload.com's own terms of service," MacBride wrote. Users were cautioned "not to keep the sole copy of any document on MegaUpload.com, and stated that MegaUpload.com's duty to preserve data ends when, at its sole discretion and without any required notice, MegaUpload.com ceases operations. While Mr. Goodwin's situation is unfortunate, it is not a matter to be resolved as part of the criminal case." ...

Seems the Government is not in possession and they say they don't want the data. However, they are in possession of the megaupload funds and won't release any for the purchase of the servers by megaupload.

Well, it was megaload's published TOS wasn't it? The data was stored on that basis and megaupload has ceased operations ... Next time read the TOS Users were cautioned "not to keep the sole copy of any document on MegaUpload.com

[Dirty Dane]

They are free to choose to defend their clients or ignore the DMCA procedure, but then they also lose safe harbor and pre-DMCA will apply.

[gideongallery]

Originally Posted by Barry-xlovecam

Different issue than I thought from reading the excerpt of the OP in this thread

http://news.cnet.com/8301-31001_3-57...e-out-of-luck/



Seems the Government is not in possession and they say they don't want the data. However, they are in possession of the megaupload funds and won't release any for the purchase of the servers by megaupload.

Well, it was megaload's published TOS wasn't it? The data was stored on that basis and megaupload has ceased operations ... Next time read the TOS Users were cautioned "not to keep the sole copy of any document on MegaUpload.com

all backup sites have similar conditions in their TOS

that designed to protect the host from liability if the content is destroyed

it does not protect third parties from liabilities.

[Spudstr]

Originally Posted by Nautilus

Maybe, but I still do not see it where the problem could be. If a client stopped paying to their host, they're no longer entitled to recieve a service. What's stopping a host from wiping their servers clean and putting them on sale again? US gov also said at first that they do not care for MU data because they have more than enough already to use as evidence. It was Carpathia who kept stirring up shit and only made things worse for them - they kept themselves in focus of attention and finally because of being constantly reminded US gov had a second thought on those data, and told Carpathia to keep them and foot the bill.

I suggest you go read up on the Federal Stored Communications Act. The Federal Stored Communications Act provides immunity for actions taken to preserve evidence in response to a request from a representative of the United States. Furthermore, failing to take all necessary steps to preserve records and other evidence, after receiving a request from a government entity, would be a violation of federal law.

[a] provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process. § 2703(f)

It also says we must maintain the data/backu of the data for 90 days then.. Id. § 2703(f)(2). The requesting government entity may ask for a 90-day extension, making the retention period a total of one hundred, eighty (180) days. Id.

However there are fine lines of who owns the hardware and who does not and how it is handled by the law.

There are a lot more issues out there than DMCA, people seem to not realize the other issues out there that screw customers over.