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Prosecutors: We can’t produce MegaUpload evidence

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An attorney attempting to facilitate a U.S. extradition request for MegaUpload.com founder Kim Dotcom told a New Zeland judge this week that the prosecution cannot produce evidence against the defendant in a timely manner because his company’s servers are simply “too big.”

MegaUpload, a cloud-based file sharing service, let its users upload anything they wanted to and acted as a “cyber-locker” with more than 50 million individual accounts. U.S. authorities accused MegaUpload of facilitating the largest criminal copyright infringement conspiracy in history after officials raided the company’s offices in January, seizing their property and taking the site offline.

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With so many millions of users, MegaUpload’s server farm was massive. When the company was hit by New Zealand police, its hosting partner Cogent saw its shares slide 23 percent as 36 of the company’s servers suddenly went offline. Federal Bureau of Investigation (FBI) agents also searched computers in Cogent’s Washington, D.C. offices, seizing massive volumes of data from MegaUpload’s servers and triggering a lawsuit by one of the site’s users who suddenly lost access to his business’s valuable, legitimate intellectual property.

But they may have bitten off more than they can swallow.

In a ruling issued last month, Judge David Harvey ordered the FBI and New Zealand Crown law enforcement officials to turn over evidence against MegaUpload so there could be a full accounting of the case before any decision is made on the U.S. extradition request. He gave them 21 days to comply. That ruling followed another by a judge in Alexandria, Virginia, who ordered the Department of Justice to work with MegaUpload on seeing that user files are returned to their proper owners.

Crown attorney Fergus Sinclair, speaking for the prosecution in New Zealand on Wednesday, reportedly told Judge Harvey that the evidence against Dotcom and MegaUpload cannot be produced by his deadline because there is just too much of it. “It’s simply too big a job,” he said, according to Auckland Now. “They wouldn’t get a small way through it in that time.”

Dotcom’s attorneys responded by claiming that FBI agents had illegally poached evidence from New Zealand to boost the U.S. case against their client, taking 18 copies of evidence despite an agreement with New Zealand prosecutors that it would remain in the country. Crown attorneys deflected the charge by saying that an earlier ruling only pertained to the original data, and not copies of the data, according to Radio New Zealand News, adding that it would take at least another two and a half months to comb through the massive archive for evidence.

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The prosecution has called MegaUpload a “mega conspiracy” to defraud U.S. movie and music studios, video game developers and software designers, so it’s somewhat alarming that not even a sample of the evidence against Dotcom would  be available to defense attorneys nearly six months after the business was raided and shuttered. The absence of evidence is especially unusual given that a spokesman for the U.S. Attorney’s Office in Virginia said just last week that they found child pornography on MegaUpload’s servers.

However, unless they can prove Dotcom or a member of his staff specifically put those images on the company’s servers, they are unlikely to be held accountable. Similarly, unless prosecutors can prove Dotcom or his staff personally facilitated and knowingly profited from the media piracy that took place on their servers, the charges might not stick. This is made more difficult by the New Zealand’s laws on extradition, which are especially particular about evidence and procedure.

To make matters more complicated for the prosecution, police were recently said to have “lost” a video of the raid on Dotcom’s mansion, and Dotcom has claimed that several key pieces of evidence against him were actually files he legally owned. A judge also ruled that his property had been seized with an improper warrant, which the police revised after the fact and tried to make retroactive.

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Dotcom further claims that MegaUpload was preparing for a “multi-billion dollar” public offering on Wall Street, and at the time of the raid was waiting in line to have its internals thoroughly examined by one of the major accounting firms that helps companies go public.

He also said that the site used to field literally millions of content takedown requests from copyright holders, and even offered a special tool-set to facilitate the removal of infringing materials. However, due to the very nature of social media and the Internet, cloud storage services simply cannot hire enough people to filter all the incoming data at once — something that’s landed other “cyber-locker” websites in hot water as well.

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One such site, HotFile.com, was sued by U.S. movie studios last year and accused of doing essentially the same thing MegaUpload was doing. Search giant Google filed an amicus brief in their defense in March, saying that these types of lawsuits have the potential to alter the understanding of current copyright law in such a way that it would threaten the very existence of the social Internet. Google argued that the Digital Millenium Copyright Act (DMCA), which has historically been abused by copyright holders to stifle competition, innovation and research, allows websites “safe harbors” if they make a good faith effort to police their content and help copyright holders remove infringing materials.

“Other mainstays of the modern Internet, such as Facebook, Twitter, and Wikipedia, likewise rely on the DMCA safe harbors in their everyday operations,” Google’s attorneys wrote. “These services have become vital to democratic participation in this country and around the world. They have transformed the way people access information, buy goods and services, forge social relationships, and discuss matters of public and private concern. Without the protections afforded by the safe harbors, those services might have been forced to fundamentally alter their operations or might never have launched in the first place.”

MegaUpload’s lead global defense attorney did not respond to Raw Story’s request for comment.
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