NZ police have arrested four people connected with MegaUpload.com in New Zealand today at the request of the US FBI. They have been charged in the US “with running an international organized criminal enterprise allegedly responsible for massive worldwide online piracy of numerous types of copyrighted works through Megaupload.com and other related sites”. (FBI press release.)
Comment
We have little faith in the fairness and appropriateness of the US’s laws and processes around copyright and intellectual property. The US government is continually strengthening its copyright laws at the behest of the entertainment industry (see SOPA and PIPA) and is trying to pass laws that we would not like to see copied in NZ.
Will this NZ police cooperation lead to New Zealanders being arrested and handed over to the US for doing things that may not be serious offences in New Zealand? Which other countries’ laws do New Zealanders have to obey when using the internet?
Whether this case is an example of good international cooperation or the US demanding other countries help enforce bad law is yet to be determined. We will be monitoring this issue closely and hope to publish more information as it is available.
Media Links
- FBI charges seven with online piracy (Wall Street Journal)
- Megaupload’s Kim Schmitz arrested in Auckland, site shut down (3news)
- File-sharing website Megaupload shut down, NZ-based founder arrested (PC World NZ)
- File-sharing kingpin arrested in New Zealand at US officials’ request (NBR)
- ‘We’re not pirates, we’re just providing shipping services to pirates‘ (Wall Street Journal Law Blog).
- Why the feds smashed Megaupload (Ars Technica).
- Megaupload attempting to get back online (Stuff NZ)
Useful Links
- The FBI press release.
- The indictment.
- Statement from the NZ Police.
- The NZ extradition treaty (PDF) with the US.
- Ministry of Foreign Affairs and Trade’s information about extradition from New Zealand
- Yes, copyright infringement can be criminal in New Zealand with imprisonment up to five years.
- Damning quotes from the MegaUpload owner’s email.
While it’s undeniable that MegaUpload hosted infringing material (as evidenced at icefilms.info for example) it’s also very clear that they hosted a LOT of non-infringing material. It was regularly used to drop large files for others to pick up, as well as hosting download of various shareware and freeware applications.
I believe that MegaUpload also claimed to follow the provisions of the DMCA which should have provided them with safe harbour. If they were indeed properly handling DMCA notices and still were subject to this action then it SERIOUSLY undermines the reliability of all forms of online and cloud storage as well as any site that allows any user submitted content.
I can attest that they regularly took down infringing material. A bit whack-a-mole, though, of course.
In New Zealand ISPs are protected if they take down hosted infringing material upon request (section 92c of the Copyright Act). This would imply that what they were doing was not illegal under NZ law.
(Your points about other cloud services are well made too.)
Putting aside megaupload because i don’t know of them or actions they did. — Are there any other country’s copyright laws we required to abide by when operating on the internet while residing in New Zealand?
It is interesting to see that the FBI and police have managed to stop these guys, with out the need for SOPA / PIPA / three-strikes and other such laws.
Assuming that there has been a breach of copyright laws (which is yet to be seen) , all that was needed was the regular copyright law we have had for 20 years.
I feel that this is a case that will test the waters and set up others for getting taken down too, but if anything, I think that DMCA and safe-harbor may let them off the hook.
Vikram Kumar (Internet NZ CEO) told 3 News tonight “this is large scale criminal-level violation. And yet we’ll have many people who fundamentally believe that the law to fight copyright violations like this is just wrong.”
As an Internet NZ member I’m very disappointed he has used his position to declare the guilt of NZ residents before they have even been charged with any wrongdoing.
Mouthing off about people who dislike our copyright laws also doesn’t seem like what we pay him for.
Let me clarify Oliver. The two sentences are part of a larger interview that perhaps didn’t come across. The “And yet…” in the second sentence was not meant to disagree with “…people who fundamentally believe that the law to fight copyright violations like this is just wrong.”
Rather, it was to make exactly the point being made in this post, i.e. notwithstanding the allegations of Kim Dotcom breaking the law, there is a real question about such laws themselves.
InternetNZ and I have gone on the record many times calling for a change in the business models of IP holders; proportionate response; due process; and cautioning against using emotive terms like “piracy” and “theft”. We believe that copyright laws have to be updated to reflect the reality of the Internet and be fit for our digital future.
No one, including the NZ Police, is charging Kim Dotcom with breaking NZ law. This isn’t about NZ’s copyright laws. I will only point to InternetNZ developing and running 3strikes.net.nz as to our views about NZ’s copyright laws.
Whether he is guilty or not and exactly what he is guilty of is for the courts to determine.
Broadly speaking, InternetNZ members’ views are that even if we don’t agree with a law, we don’t support people breaking it. And, in this case, it was for private profit. If you or any other member else thinks that’s wrong, then let’s have a robust debate via the Policy Advisory Group.
I recommend that people actually read the indictment. If the accused broke US laws in the US (i.e. they had a bunch of servers at Carpathia in Virginia, which the indictment specifically refers to, and Cogent on the West Coast -“and elsewhere”), then the US is perfectly justified in seeking them out wherever they are.
Vikram may have been premature in calling this a crime, but it’s an accusation of criminal enterprise to be sure – it’s not a spotty youth downloading movies for free. Criminal copyright infringement is an offence in New Zealand as well as elsewhere.
Megaupload did not operate technically in New Zealand – it’s a Hong Kong company, I think, and none of their servers were hosted here – so I don’t think they can claim ISP status under New Zealand law. Also, the indictment specifies instances of them not responding to DMCA requests on more than one occasion, which would break a “safe harbour” defence.
As I understand it, they have been arrested under US law by the New Zealand police acting as local surrogate, in much the same as Nai Yin Xue was arrested in the US and deported to NZ. (http://en.wikipedia.org/wiki/Xue_family_murder_and_abandonment)
Yes, it is interesting to see that SOPA/PIPA/ACTA were not required in this event, and that may be one of the biggest arguments against them in the future.
None of us are keen to see the draconian extensions of copyright that the MAFIAA are demanding, but can we look at the facts before we call out that the sky is falling?
I don’t think anyone here is panicking or saying that the sky is falling – but we’re still concerned about the precedent. Should the NZ police be sending in the AOS and helicopters to arrest people for enabling the breach of copyright and then ship them off to the US? It’s not like they’ve been accused of murder or torture or kidnapping.
The US is passing stronger and stronger copyright laws and criminalising those who fall foul of them in a way that would be unacceptable in New Zealand.
I’m sure we’ve all noted the example of Richard O’Dwyer who is being extradited from the UK to the US because he ran a website that linked to copyrighted material. How would we feel if the NZ police were enabling that? ( http://www.bbc.co.uk/news/uk-england-south-yorkshire-16544335 )
Ultimately I believe that this indicates that our extradition and assistance laws may need to be revisited.
They were advised that the people they were seeking had weapons, and they seized weapons – that completely justifies the use of the AOS – they’re not going to let another Napier happen if they can avoid it.
If a crime is alleged that falls within the Extradition Act (and the indictment is for Racketeering), then the NZ Police are bound to respect the request. It’s up to the Court to determine whether extradition is warranted. They haven’t been shipped anywhere yet, as process must be followed (viz. Julian Assange in London).
http://torrentfreak.com/harvard-prof-megaupload-shutdown-is-an-attempt-to-kill-technology-120127/
60 Dell servers were seized in the raid. They did operate servers in NZ.
Vikram, thanks for the clarification. The “And yet..” sentence came across as meaning the exact opposite: dismissive. I accept that wasn’t your intention.
As for the first sentence, I think we should support due process. Part of that is not declaring the guilt/innocence of people until proven, even if that just means adding the word “alleged” as a qualification.
I doubt any of us think the group arrested are good guys, but as an organisation we should leave to the justice system (of whatever jurisdiction) determination of guilt or innocence under the law (however much an ass that law may be).
Article and discussion on Public Address
http://publicaddress.net/hardnews/the-mega-conspiracy/
The legal blog of the New York Law School is critical of the legality of the Feds case against Megaupload. http://www.lasisblog.com/2012/01/20/fighting-megaupload-piracy-with-piracy/
The Feds have ignored a US supreme court ruling that ruled in favour of the defendant in a previous case ruling that in order to have jurisdiction in the US the relevant laws must specifically state that it applies to transactions that take place overseas.
http://www.supremecourt.gov/opinions/09pdf/08-1191.pdf
This case has scary implications on people running legitimate businesses on the Internet being interfered with by the US Government and raided by armed police in helicopters.