Now proving this is no-doubt going to be difficult. And prosecuting in front of a jury who have been pummelled with anti-SOPA sentiment for months is a nightmare. So I think they've a very good chance of getting away with it.
They didn't need either act to be passed to arrest a bunch of people in New Zealand, after all.
For the request to go ahead, the alleged offence need to be an extradition offence (http://www.legislation.govt.nz/act/public/1999/0055/latest/D...) - which means that the alleged conduct of the defendants would be a crime in New Zealand if it was done here, and would be a crime punishable by 12 or more months imprisonment in the US.
New Zealand has a bar to Internet provider copyright liability (http://www.legislation.govt.nz/act/public/1994/0143/latest/D...), defined as follows: " Internet service provider means a person who does either or both of the following things: (a) offers the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing: (b) hosts material on websites or other electronic retrieval systems that can be accessed by a user " However, ISPs have to forward notices from rights holders to the user, and after the third notice, to the copyright tribunal, allowing proceedings to be filed.
If MegaUpload did nothing more than offer a file upload service, and complied with the applicable procedures for responding to rights owner requests, it seems unlikely that that particular allegation would amount to a crime in New Zealand. However, the article lists a number of charges, and the extradition law doesn't allow them to challenge the alleged facts, only whether they amount to a crime in New Zealand and the country they are being extradited to.
Read some samples from ChillingEffects: http://www.chillingeffects.org/dmca512/notice.cgi
The host could simply claim another user uploaded it after the DMCA notice was received and the original link removed.
Presumably DMCA notices don't apply to future uploads as well? That would be almost completely unenforceable for a service like Megaupload.
Edit: Just a couple more proposals for such a system. First, the link re-creation could be conducted randomly at different times after deletion for different uploads, giving the impression that it is not the result of an automated process.
Second, a host could publish all the DMCA notices they receive, providing a plausible explanation for why all the content is 're-uploaded' soon after being taken down. Surely a host can't be held responsible if its 'users' take it upon themselves to almost immediately re-upload any content taken down by DMCA notices?
There is also a red flags test. If a reasonable person would be aware that the site is hosting files that infringe then it's not protected. And also you can't get direct financial benefit from it, you have to close accounts of repeat offenders, and some other restrictions.
Basically everybody knew Megaupload hosted warez, there were red flags, megaupload didn't take down links they knew were warez, and they made money off of it. Case closed. There may have also been legitimate use of megaupload, but they weren't covered by safe harbor and them being shut down is the law working as intended.
> you could combinatorially add random junk into the stream and circumvent that as well.
One could, like how people flip/speed up/record tv to get around youtube blocking, but it would take a lot of work and dedication to keep uploading your 500+ MiB movie rips over and over again.
But the existence of a copy does not tell you whether the uploader had the appropriate license from the copyright holder, or is the copyright holder, of that copy. Files do not fit into "legal" and "illegal" bins by the order of the bits alone.
Let's say I create and sell a software package. I upload it to my Megaupload account so I can easily access it later at another location.
Someone else uploads a copy they bought with a stolen credit card so they can share it on a warez forum. I send a DMCA notice of infringement requesting this copy be removed from Megaupload.
Should Megaupload now also locate all links to that file and remove them, including mine, which is entirely legal for them to host? Is Megaupload required to breach its contract with me as a paying user of their service, in good faith and violating no laws, in order to meet the DMCA safe harbor requirements? I think not.
I've never made a DMCA request against them, but my understanding from the DoJ presser was that they did comply with the letter- They removed the links that were sent. They just didn't necessarily remove all other links to the same file.
When you filed yours, did you follow legal procedure, and go through their registered DMCA agent with paper mail, etc? (I'm not implying you didn't, I'm trying to understand this whole mess)
Let's say for the sake of discussion that these were "Bad Guys", and the site was used for infringing purposes.
If they're following the US law, they still ought to be safe. You can arrest people for breaking laws, but not for being assholes.