[x-pubpol] Is Megaupload "a lot less guilty than you think?"

[Joly MacFie]

http://arstechnica.com/tech-policy/news/2012/02/is-megaupload-a-lot-less-guilty-than-you-think.ars

 Jennifer Granick, a Bay Area attorney blogging for Stanford's Center for
Internet and Society, has risen to Megaupload's
defense<http://cyberlaw.stanford.edu/node/6795>,
calling the site "a lot less guilty than you think."

Granick focuses on an issue that didn't come up much in our earlier
discussion: the distinction between civil and criminal law. Traditionally,
copyright enforcement has largely been a civil matter—that is, it focused
on private disputes between copyright holders and infringers. But in recent
years, Congress has increasingly made copyright infringement a criminal
matter, getting the federal government directly involved in prosecuting
alleged infringers.

For example, the lawsuits against Napster and Grokster a decade ago were
both civil cases in which major copyright holders sought damages and
injunctions against the file-sharing services. The individuals who ran
those companies didn't face jail time even though they lost their cases. In
contrast, Megaupload is being criminally prosecuted by the federal
government. If he loses the case, CEO Kim Dotcom (read our
profile<http://arstechnica.com/tech-policy/news/2012/01/mega-man-the-bizarre-rise-and-sudden-downfall-of-kim-dotcom.ars>)
is likely to spend years in jail.

That matters because some of the government's key arguments against
Megaupload are based on judge-made doctrines that have emerged from civil
cases. Concepts like "secondary liability" (e.g. a company like Napster
knowingly facilitating infringement by users) and "inducement" (e.g.
Grokster "inducing" its users to commit infringement) were created through
America's common-law legal process, in which earlier decisions serve as
precedents for later ones. And the courts have shown great reluctance to
throw a defendant in jail for actions that have not been explicitly
declared illegal by Congress.
Direct vs. indirect

Megaupload's executives face two kinds of charges. First, they are accused
of direct copyright infringement—the unauthorized duplication of
copyrighted works by the defendants themselves. Second, they are accused of
secondary infringement—aiding and abetting infringement by Megaupload users.

"I agree with the copyright law experts interviewed by Ars
Technica<http://arstechnica.com/tech-policy/news/2012/01/legal-experts-say-megaupload-faces-long-odds.ars>
that
the most damning allegations in the indictment are the claims of direct
infringement, particularly for the prerelease movies," Granick said in her blog
post <http://cyberlaw.stanford.edu/node/6795>. But she argued that the
government's case was much weaker on the secondary infringement charges.
 [image: Jennifer Granick]
 Jennifer Granick

Granick says the government's "aiding and abetting" charges are "something
like the civil liability inducement theory the US Supreme Court created in
the 2005 Grokster case." But, she said, it's far from clear that a civil
offense like inducement can actually give rise to criminal liability.

"This has never been decided by any court," she wrote, but the pending
Rojadirecta case<http://arstechnica.com/tech-policy/news/2011/12/spanish-site-taking-our-domain-was-unconstitutional-prior-restraint.ars>
raises
just this issue. The government's seizure of rojadirecta.com was a criminal
matter, but the charges against Rojadirecta focus on links to infringing
content, which would be secondary—and therefore civil—infringement.

Rojadirecta's lawyers "argue that judge-made secondary infringement
liability theories, including Grokster-style inducement, cannot be the
basis for a criminal copyright violation because the criminal copyright
statute doesn't mention secondary liability," Granick wrote. "Due process
doesn't allow incarceration under a civil legal theory that the Supreme
Court dreamed up in 2005."

She makes a similar point about the conspiracy charges facing Megaupload.
Conspiracy is a criminal offense, but the government is effectively
charging Megaupload's executives with conspiring to commit civil copyright
infringement. Yet the conspiracy statute "makes clear that the object of
the conspiracy must be an offense or fraud against the United States, in
other words, a federal crime," Granick writes. A conspiracy to induce
others to commit copyright infringement doesn't qualify.

"Prosecuting this case against Mega, especially if Defendants get good
criminal lawyers who also understand copyright law, is going to be an
uphill battle for the government," she concluded.
"The defendants look really guilty"

Is she right? We asked Derek Bambauer, a noted legal scholar at Brooklyn
Law School, for a second opinion.
[image: Derek Bambauer]
 Derek Bambauer

Bambauer largely agreed with Granick on the merits; subjecting Megaupload
to criminal penalties for committing offenses under judge-made civil law
would be a troubling step. But Bambauer wasn't convinced that Granick's
arguments will save Kim Dotcom.

For starters, under the 1997 No Electronic Theft (NET) Act, direct
infringements alone (for example, casual file-swapping by individual
Megaupload employees) could get the defendants five to ten years in prison.
He noted that in principle, ordinary users sharing infringing works on
BitTorrent face similar penalties; the federal government just doesn't
invoke these penalties very often. But when the government wants to, as in
this case, it can seek multi-year jail sentences for even casual
file-swapping.

That means that the Megaupload principals could wind up serving long jail
sentences even if Megaupload is found completely blameless for the
infringing activities of its users.

Unsurprisingly, then, Bambauer predicts the defendants will accept a plea
bargain agreement rather than take the case to trial.

As for the inducement charges, Bambauer suggests one way the government
could argue for applying criminal penalties: while Congress hasn't
explicitly endorsed judge-made theories of secondary liability, it *has* jacked
up the criminal penalties associated with copyright infringement since the
courts began formulating secondary liability theories. The courts might
rule that when Congress made more kinds of infringement subject to criminal
penalties in 1997, they were implicitly including secondary infringements
among the offenses eligible for those penalties.

Bambauer notes that Kim Dotcom and his associates are not sympathetic
defendants. "In theory, they should be interpreting this carefully, but the
defendants look really guilty," he said. "They look like they are running a
criminal enterprise. There are all sorts of emails showing them trying to
skirt the law." So, he predicted, the courts might well be strongly
motivated to find a legal theory that allows them to put Kim Dotcom and
company in jail.

-- 
---------------------------------------------------------------
Joly MacFie  218 565 9365 Skype:punkcast
WWWhatsup NYC - http://wwwhatsup.com
 http://pinstand.com - http://punkcast.com
 VP (Admin) - ISOC-NY - http://isoc-ny.org
--------------------------------------------------------------
-
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.isoc-ny.org/pipermail/x-pubpol-isoc-ny.org/attachments/20120217/1228af7b/attachment-0001.htm>