During their raids, they seized the funds used to provision the servers, failed to preserve the data, went so far as to prevent efforts on the part of Megaupload to return the data to me, and failed to allow for any sort of process for me to claim it before the servers were destroyed.
That data wasn't specifically targeted in a forfeiture action, nor was it specifically accused of being infringing. The US government simply destroyed my data as part of their raid against Megaupload without any concern for the fact I was engaged in legal business with them, and simply using them for remote storage.
Nevermind that they induced a foreign government to illegally spy on one of their residents as part of a copyright enforcement action. That's just hideously ugly.
The US government should be held financially responsible for these.
Plus you could consider the failure of the US governments preservation of Mega Uploads data as destruction of evidence.
If the evidence is not present during the trial it didn't exist.
Regarding mens rea, I imagine it's tougher to argue that you thought you were legal technically than to argue you had no idea you might be breaking the law? E.g. Someone who has never heard of magic mushrooms but find then growing and sells them has a better chance of not being convicted for selling illegal drugs than someone who knows and had researched the laws and thinks they have a technicality to allow them to sell? Of course that's assuming they were wrong about the technicality.
"Well, of course everybody knows that the internet is being used for legitimate and illegitimate uses. I think every online service provider has the same challenges that we have. YouTube, Google, everybody is in the same boat. So what you need to understand here is that we provided the content owners with an opportunity to remove links that were infringing on their rights. So, not only did they have an online form where they could take down infringing links, they had direct delete access to our servers so they could access our system and remove any link that they would find anywhere on the internet without us being involved. They had full access and we’re talking about 180 partners, including every major movie studio, including Microsoft and all big content producers and they have used that system heavily and you need to understand that that system was not even something that was even required by the law. We provided that voluntarily and they have removed over 15 million links."
From: http://www.3news.co.nz/tvshows/campbelllive/kim-dotcoms-firs...
On the other hand, who can say whether content is illegal in all contexts. Perhaps your pirated movie is my legitimate backup.
If this really is the only issue it seems like quite a weak case to me, as with more diligence the copyright holders could have removed all copies. But I guess we'll never know all the details.
Then consider how much years Google needed to start to be even slightly effective. Wasn't that dragging the feet?
The justice for small guys and superrich is not the same. Kim is a small guy in this comparison.
All Megaupload needed to do was allow copyright holders to play the cat and mouse game of takedowns to be within the law. A DMCA takedown doesn't have the oversight from a judge or anything, it can be totally wrong and there's really no reprocussions (as we've seen on youtube multiple times, this occurs frequently.)
You cannot expect Megaupload to delete the content from their servers, as their business is data retention. You also cannot expect Megaupload to flag files as DMCA'd and not allow them to ever be downloaded, the fact that their entire business model is people sharing content and the sheer amount of DMCA requests they recieve makes it impossible for them to investigate each case properly.
The DMCA protects him by simply allowing takedowns of a single link. The content can stay, and he can stay within the bounds of the law by some external individual creating an additional link to be inevitably DMCA'd again.
What the prosecutor might argue however, is that mens rea is not needed for cases of assisting criminal copyright infringement. This is what happened in the pirate bay trial, as the prosecutor brought up precedent cases in which an friend of an accused held up a window during a burglary, and got sentenced even if he was not aware what his friend was up to.
Uber and AirBnB are figuring out how to violate local laws. They are corporate persons and are not charged with conspiracy, racketeering or money laundering when spending the proceeds of illegal activities...even in the furtherance of such activity. Kim Dotcom is a natural person who has angered corporate persons. The full weight of the law must be used against him. That's how crowd control is maintained.
> In the forfeiture case, prosecutors will argue why Dotcom’s claim on the frozen assets should not be allowed—and therefore forfeited to the US government—under the "doctrine of fugitive disentitlement." That idea posits that if a defendant has fled the country to evade prosecution, then he or she cannot make a claim to the assets that the government wants to seize under civil forfeiture.
Hooray, a loophole in the laws that might let them seize his assets: call him a fugitive! Even though he hasn't visited America one single time in his life. And even though he is still in the country where he calls home, and has done for more than a year before this case started.
Maybe it's not the DoJ's fault, maybe Dotcom and his lawyers (and PR) are really, really good. But nearly every story in the past 3 years has made him look good and them look bad, which shouldn't be the case when you've got a government department charged with delivering justice against a guy with a track-record of being an asshole and breaking the law.