This morning, Kim Dotcom, accused by the Department of Justice of criminal copyright infringement, is in a New Zealand court to see if he will be extradited to the United States.
One of the things in Dotcom’s corner is testimony from Lawrence Lessig, a preeminent U.S. copyright scholar, and current presidential candidate. He argued to the court that the DOJ doesn’t have a legitimate case against Dotcom. Of course Lessig isn’t exactly a neutral party. As he acknowledged to the court, on top of being retained by Dotcom’s defense, he’s also advocated for copyright reform, co-founding Creative Commons.
But how’s his argument stack up? His first argument strikes at the heart of the DOJ’s theory, contending that the DOJ is improperly seeking to import the concept of secondary liability, recognized in MGM Studios Inc. v. Grokster, Ltd., to criminal law. This is “improper,” he contends, “because, in the United States, crimes must be clearly defined by the legislature and prosecutions are confined within express criminal statutes.” There is a fair argument to be made that this importing of principles from civil law violates the rule of lenity.
Lessig then takes aim at one specific allegation against Megaupload: that it failed to comply with DMCA take-down requests. Lessig explains that, if multiple users uploaded the same file, Megaupload would retain only one copy of the file, but would generate multiple URLs for each user who uploaded it. When Megaupload received take-down requests for one URL, Lessig argues, it should not have needed to take down all URLs linked to the same file, and even if it did, it should not face criminal liability for that action.
Lessig also takes on an even more controversial issue: whether U.S. copyright law extends to parties acting in other countries. Megaupload in fact had leased servers in the United States. But Lessig asserts that the Superseding Indictment doesn’t discuss this fact. Nor, he claims, does it allege that a directly infringing act occurred in this country.
Lessig then turns to what I believe is the core of Megaupload’s defense if it ultimately goes to trial in the United States: whether any of the defendants willfully violated copyright law. He notes that the willfulness standard “requires a stronger showing in a criminal copyright claim than in a civil claim.” (That is why claims of compliance with DMCA rules is a red herring in the Megaupload prosecution.) Lessig suggests that U.S. prosecutors are merely “[a]ttacking an ISP for generally bad or negligent policies or alleging how the ISP could be better, faster, or more precise in its takedown or repeat infringer policies is not enough.” And that, he contends, is not proper fodder for a criminal case.
Not all U.S. copyright scholar agree. James Grimmelman has observed that “If proven at trial, there’s easily enough in the indictment to prove criminal copyright infringement many times over.”
In a 2013 article, a co-author and I also suggested that, “if the facts alleged in the indictment are proved, the willfulness requirement will likely be met,” for the following reasons:
According to the indictment, the operators of Megaupload were just as intentional in their copyright infringement as The Pirate Bay, collecting advertising revenues generated by infringing content and exchanging incriminating emails showing that they knew about the infringement on their service. One operator joked to another that they “have a funny business . . . modern days pirates :),” to which his co-conspirator responded, “we’re not pirates, we’re just providing shipping services to pirates :).” Megaupload similarly sold premium access to unlimited streaming of uploaded content and financially rewarded users—even those previously caught uploading infringing material—for uploading popular content and for posting links to that same content on other websites. This practice not only increased traffic but also allowed Megaupload to avoid listing infringing videos directly on the site, concealing the scope of the infringing content on its servers. To rebut claims of infringement, Megaupload had instituted an “Abuse Tool,” allowing copyright holders to report, and purportedly remove, infringing content. But the indictment alleges that the company received millions of requests to remove infringing content and, “at best, only deleted the particular URL of which the copyright holder complained, and purposefully left the actual infringing copy of the copyrighted work on the Mega Conspiracy-controlled server and allowed access to the infringing work to continue.”
Lessig does a good job of showing the other side of these facts. But whether it is enough to defeat extradition is yet to be seen.
Also lurking in the background is the idea floated in the 2013 piece: just because prosecutors can, doesn’t mean they should.
Megaupload has not been convicted, and may never be, yet its business has been shut down, its assets frozen, its customers left unable to retrieve even lawfully stored data. Some of this smacks of the treatment of the King’s Messenger: punishment first, with trial after. … [W]hen the alleged conduct is egregious, and civil lawsuits are ineffective, then a criminal prosecution, with all its attendant hardships for the accused, may be warranted. But [those guidelines] are intended as limitations, not as a call to pursue more prosecutions. Because the powers of federal prosecutors are great, a reluctance to use those powers is a virtue that preserves liberty.
If the case survives today, then the court might consider employing the “substantial unoffending uses” test suggested here for evaluating the secondary criminal liability of providers of technology that has both criminal and non-criminal uses.