Megaupload User Files — Even The Non-Pirated Stuff — Could Be Destroyed

Less than two weeks after authorities shut down file-sharing site Megaupload, it looks like everything stored by users on that site’s servers could soon be erased, even the stuff that wasn’t pirated.

The Washington Post and others report that Megaupload’s megalawyers have been notified by the DOJ that its completed its scouring of the site’s servers and that some of that info has now been copied onto government servers. As such, the government no longer needs the data, the future of which now appears to be at the discretion of the two hosting companies involved.

And since Megaupload’s assets have been frozen, it can’t pay the hosting fees.

“It is our understanding that the hosting companies may begin deleting the contents of the servers beginning as early as February 2, 2012,” explains one U.S. District Attorney.

One Megalawyer tells the Post that this could mean the deletion of the personal files of at least 50 million customers, but adds, “We’re cautiously optimistic at this point that because the United States, as well as Megaupload, should have a common desire to protect consumers, that this type of agreement will get done.”

Yes, he actually said with a straight face that the U.S. government has a desire to protect consumers.

Maybe Megaupload should look into a new lawyer that doesn’t also probably believe in unicorns and ogres.

Megaupload data could be deleted starting Thursday [Washington Post]

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  1. Cat says:

    Wouldn’t this be considered “destruction of evidence”?

    • Nidoking says:

      It sounds like they’ve already made copies of whatever they consider to be evidence. Everything else is just stuff that happened to be on the server and isn’t part of the case.

    • caradrake says:

      I’m not sure. Since the government made copies of the servers onto the government’s own servers, don’t know if deletion of the initial content is destruction of evidence.

      I’d like to see how a judge rules on such a case.

      • Cat says:

        I would think a defense lawyer would have serious problems with this.

        Because a copy ≠ the original.

        • Coffee says:

          Are you sure? If the content is digital, isn’t a copy the exact same thing as the original?

          • Kestris says:

            Even digital copies can be tampered with or otherwise altered.

          • Ratty says:

            According to our policies at least, no, it’s not the same.

          • Oranges w/ Cheese says:

            According to this whole lawsuit over pirated things, the digital copy IS the same thing as the original, hence why it’s illegal and “stealing”

            • Applekid ‚îÄ‚îÄ‚î¨ Ôªø„Éé( „Çú-„Çú„Éé) says:

              So, if I had a movie I created uploaded there, and the DOJ made a copy of it onto their servers, can I claim copyright infringement? :)

    • NickJames says:

      It depends, some Judges can request original copy of everything even digital media because Defense can argue about alterations etc.. It’s up to the courts to decide if they require original evidence.

      • coffee100 says:

        Destruction of evidence is a federal offense. U.S.C. Title 18 Section 1519.

        Destruction of someone else’s property, digital or otherwise is a violation of the Fifth Amendment guarantee of property rights.

        Destruction of the defendant’s property is a violation of the Fifth Amendment guarantee of due process.

        It’s also a violation of American Bar Association Rule 3.4

        Then of course there are the federal rules of evidence.

      • ablestmage says:

        And it would take, what, a couple hours worth of lawyer fees to simply keep it in storage for the next century?

  2. BorkBorkBork says:

    I see this as a serious problem against the ‘cloud’ trend we’re starting to see.

    • u1itn0w2day says:

      The preverbial foot is in the door. Someone has to kick it out and slam that door shut.

      What?!, collateral damage? innocent users & content? This is like using a shovel to scoop something out when you could use a scapal to take the slither.

      • DarthCoven says:

        I like this metaphor:

        “Piracy is like a fly on the wall. Instead of using a fly swatter, they’re using a flame thrower and burning down the house in the process.”

    • VintageLydia says:

      I’ll never let go of having local storage. I may back it up in a cloud so I can access it when I’m not home, but I’ll never rely on JUST that :/

    • Jawaka says:

      The cloud should only be used as a backup of what you’re already storing locally and not a place where you keep your only copy of data. Only a fool would keep all of their eggs in one basket.

      • VintageLydia says:

        That’s not how it’s being advertised and billed. I know, and you know, it should be a backup only, but even when major businesses and government agencies are switching to an all or mostly cloud based system, you can’t blame the general public for not seeing the flaw in that plan (though to be fair, most big businesses and agencies have backups of some sort elsewhere, but not all.)

      • ClemsonEE says:

        How is it keeping all your eggs in one basket to put it on the cloud? Supposedly, the cloud is automatically backed up, the information is stored on servers that have power back up and loss prevention. Theoretically, there shouldn’t be a problem, unless if the government steps in and decides to nuke everything.

        • scurvycapn says:

          Because people are saying “my only copy was on megaupload! I’m going to lose my work I was doing for my job!” It appears there are a lot of people that supposedly only have things on megaupload and not on their own PCs. I find that odd because you’d need it on your PC in order to upload it. Or maybe they are uploading it and deleting it. If so, that’s just plain dumb.

      • psm321 says:

        So you think people who use Google Docs also export all their docs from Google to keep a local copy?

        The problem is the average user is trained to treat the cloud stuff as safe.

    • Rod Rescueman says:

      The “cloud trend” sucks. For the past year I’ve been telling everyone how it’s great way to get files to multiple people, but always and I say ALWAYS keep everything backed up locally in case of these situations.

    • Cosmo_Kramer says:

      It’s really not though. Some people just don’t understand how the “cloud” is supposed to work. You don’t want your only copy of anything important to be under someone else’s control.

      But you can pretend it’s the technology’s fault when clearly the users are idiots.

    • Applekid ‚îÄ‚îÄ‚î¨ Ôªø„Éé( „Çú-„Çú„Éé) says:

      “Cloud” is not a synonym for “Server”. That’s my problem with the Cloud trend.

  3. vliam says:

    They confiscated everything, even the stuff we didn’t steal!

    • StarKillerX says:

      +100

    • saregos says:

      Technically, it’s more like:

      I own an apartment building.
      Some of my tenants commit crimes. I know this. I don’t actively seek out who.
      Some of my other tenants are, in all likelihood, completely innocent of wrongdoing.
      The gov’t confiscates the apartment building and the contents of every single apartment (criminal and innocent). None of my tenants are provided the opportunity to retrieve anything from their apartments, then the building is demolished.

      • Lisse24 says:

        This.

        I have to tell you, the idea that the DoJ feels like they can destroy the property just because it’s digital is really disturbing to me – the first thing I’ve found as really disturbing. It definitely has implications beyond just this case.

        I don’t use megaupload, but I do wonder if someone is going to get together a suit if they go ahead with this.

        • StarKillerX says:

          First the government wont be destorying anything, the owners of the servers are the ones who will delete the data, due to lack of payment for the storage and just as you have no claim if MU just decided to do it no one would have a claim when they are stopped from paying because their asssets are frozen.

    • Stickdude says:

      Glad to see the whole “innocent until proven guilty” idea is alive and well.

      • StarKillerX says:

        Just because they aren’t proven guilty yet does not mean they should be allowed to continue committing the crime they are alleged to be committing.

  4. dogmaticman says:

    Really unfortunate. As Harvard prof Yochai Benkler points out (http://www.youtube.com/watch?v=ZmhoYX7EdXo), the Megaupload seizure sets up a precedent for the MPAA/RIAA to go after any website it deems a threat to its copyright, this would include YouTube, Dropbox, and virtually any other online file sharing system.

    The difference in this case was that while MegaUpload was more blatant in its infringement, there are a handful of users that did utilize it for legitimate purposes (my roommate used it to store data files in college and share them with other students). Likewise, if a couple of pirates decide to utilize Dropbox for their purposes, does that then give the govt an opening to seize and shutdown all assets???

    • Quixiotic... Yea it's a typo (‚ïج∞‚ñ°¬∞Ôºâ‚ïØÂΩ°‚îÅ‚îª says:

      The Megaupload bust was targeting the owner and staff for accusations of money laundering and other shady financial tactics, the pirating was just an afterthought.

      • saregos says:

        If you believe that, I’ve got a shiny new congress to sell you. It’s pretty obvious from looking at the indictment that the copyright infringement charges are the only ones that anyone expects to stick – the rest is all fluff to sway the authorities in NZ into extradition.

    • thefncrow says:

      No, it doesn’t. There exists a provision in the DMCA known as the Safe Harbor, which means that if you are a provider of user-provided content, you’re not liable for copyright infringement so long as you follow certain procedures. Those procedures require you to have a contact whom content owners can contact with takedown notices to get content removed from your service.

      MegaUpload was liable because they weren’t following the procedures needed to qualify for Safe Harbor status. They had an abuse tool which could be used to disable a particular download, but that abuse tool was designed in such a way as to make the abuse requests basically meaningless.

      MU’s storage worked by taking file metadata before the file was uploaded and comparing to their database. If they found that they already had a copy of that existing file, they skipped the file upload and just created an alternate download link to the existing content. One underlying file on the server could have 10, 50, 100, or however many download links which all linked to the same content.

      Part of complying with takedown notices to qualify for the Safe Harbor is that, when notified of abuse, the provider has to remove access to the infringing content and remove the actual infringing content. MU didn’t do that. Instead, MU would take the specific link reported by the IP holder and disable that specific link, but would leave active all other download links to the same material. The actual content was not deleted, as the only way the MU system purged the underlying files was to remove any and all download links pointing to that file.

      In fact, there’s an email cited in the MU indictment where the operators of the site discuss creating a dummy MU platinum user to create links to copyright infringing content in order to ensure that use of the abuse tool would not cause content to be deleted by removing all download links to the material.

      Other sites like Youtube and Dropbox appear to be DMCA Safe Harbor compliant, which means that so long as they remain compliant they aren’t in line for the same treatment. At least, so long as SOPA/PIPA don’t pass, since those bills effectively gut the Safe Harbor provision and would make such sites directly liable for that content.

      • InsertPithyNicknameHere says:

        Thank you for that informative analysis. I was not aware that MU was using that method for managing file uploads and links. While I’m still annoyed about them being taken down (because I was one of the people who used it for legitimate purposes), it does make more sense now.

      • saregos says:

        “Part of complying with takedown notices to qualify for the Safe Harbor is that, when notified of abuse, the provider has to remove access to the infringing content and remove the actual infringing content.”

        Here’s the counterpoint that MU would use.

        Let’s say A owns the rights to a piece of copyrighted material. They upload it to MU.
        B later comes along and tries to upload their copy of that same material, with intent to infringe. MU’s server looks at the metadata, realizes there’s a copy already present, and provides B a link to the copy already there.
        C later comes along and tries to upload a copy of the material as a personal backup. They have no intention of ever sharing it with anyone but themselves.

        Now, I think it’s safe to say that A is operating completely within the realm of legality.
        B is operating outside of the realm of legality.
        C may or may not be operating within the confines of the law, depending on the type of file (movie, music, etc), the terms and conditions of any service they used to get it, and any DRM they circumvented.

        So if MU were to delete the file, as opposed to the infringing link, they’d be deleting access to the file for A, B, and C.

        A, obviously, would be annoyed that their perfectly legitimate file was removed (amusing, since A is the likely sender of the notice).
        B would, rightfully, lose access to the file.
        C would lose access to their file as well. Notwithstanding the legal question here, I think it’s safe to say that C’s usage wasn’t harming anyone. Further, they probably won’t understand the details of why their file was removed.

        So in the end, you cause harm to 2 legitimate users to stop 1 pirate. Good job, that.

        Alternately, let’s delete all links not uploaded by copyright holders. But wait, that still catches C. And, for that matter, copyright holders are notorious for astroturfing (see the youtube vs. viacom case) by uploading copies of their material to sharing websites through non-official channels.

        And yes, I know, the solution is to actually use an upload from every individual user. But that just demonstrates the absurdity of the demands of the content industries (and, to some extent, the law surrounding this) – they’re trying to stand in the way of what’s really a perfectly natural evolution of any file-sharing service.

        TL;DR:
        Copyright law is a lot more complicated than you’re claiming it is, and it’s not possible, at a glance, for anyone but the content owner to determine what’s “infringing” and what isn’t.

        • thefncrow says:

          It is rather clear, in the case of MegaUpload, exactly what was going on. Emails between the operators of MU indicate their desire and need to create a dummy MU platinum user to create links to content in order to ensure that no use of the abuse tool could actually remove the content from their back-end. Emails between the operators of MU indicate that there was opposition to processing large numbers of abuse requests from legitimate copyright holders. This could be legitimate opposition if their position had been that it was difficult to verify that the claimed copyright holder was the legit copyright holder, but that’s not the argument presented in the emails. Instead, the opposition to processing large numbers of copyright claims is linked to a period when such a large batch of copyright claims were processed and MU’s income dipped, a dip that is attributed to the loss of copyrighted material.

          It really sounds like you haven’t read the indictment. If not, you should really go and read it. MU was not some poor file-hosting website that got hosed by some abusive users. It was a business built on profiting from copyright infringement, and their policies for takedowns were designed specifically to present a public image that they were following Safe Harbor procedures while minimizing the damage to their company’s ability to profit from copyright infringement.

    • StarKillerX says:

      Your overlooking the obvious truth of the matter to try and support your biased conclusion.

      megaupload wasn’t shutdown because a few people uploaded copyrighted material to it but because those running it made a concious decision to encourage and profit from this piracy.

      What’s ironic that when action was taken against pirate bay the outrage was that they didn’t even host files so going after them was wrong, but now people are outraged when a site that does host the files is taken down….. although they are grasping at straws to justify it this time.

      • saregos says:

        That notwithstanding –
        The government’s actions in this case (seizing an entire website, now deleting or “allowing to be deleted” the full contents thereof) are entirely incompatible with the first amendment and all caselaw surrounding such.

        Attempts to stifle “illegal speech” are supposed to be narrowly tailored to the speech in question. This… is anything but.

        • StarKillerX says:

          You might have a point if the government itself were to delete the data, but in this case it’s not the government but instead private companies and they are not even doing so at the request of the government but instead for non-payment of bills to maintain the servers/data.

          Megaupload, and it’s users, only have the rights to expect the storage of this data as long as the servers are being paid, and now to to legal action it is not being paid.

          • psm321 says:

            But how is it fair that MegaUpload’s assets are frozen essentially giving them no choice, BEFORE any trial or finding or guilt?

            • StarKillerX says:

              Because if the charges are correct then the assests were gained by illegal activity which forfeits their rights to them.

              This is standard procedures with drug dealers, child p0rn sites, and others involved in large scale criminal activity. As I recall what normally happens is that the funds are frozen, but I believe are allowed to be used for the legal defense but yeah, they don’t allow the guy running a kiddie p0rn site to keep operating until he is convicted.

              • Lt. Coke says:

                IF the charges are correct. So what, the government gets to punish you now before a trial, before presenting evidence, before actually charging you with anything? Fuck that.

              • psm321 says:

                > “This is standard procedures”

                Doesn’t make it right. Innocent until proven guilty and all that jazz.

    • Cosmo_Kramer says:

      “Likewise, if a couple of pirates decide to utilize Dropbox for their purposes, does that then give the govt an opening to seize and shutdown all assets???”

      NO. The law on this is clear, they’re not responsible for what their users do. They have to comply with DMCA takedown requests, and they do. At one point their software was exploited for piracy, and they changed it to prevent that. Dropbox has nothing to worry about.

      Megaupload wasn’t just a service that was used for piracy. They actively participated in piracy on a massive scale for financial gain.

  5. captadam says:

    Say there’s a big old multi-unit storage facility somewhere. Some of the people renting units in this place have used them store hot items, so the feds swoop in and padlock the whole place. Those of us using the storage units for our extra furniture and the kids’ old bikes and whatever else can’t get in. Then, with the facility still padlocked, the owner of the land underneath the facility says, hey, the building owner isn’t paying rent, so I’m torching this place and all the contents in it.

    Those of use with the legitimate stuff locked away might have a decent lawsuit on our hands, no?

    • sagodjur says:

      I thought of the same scenario. Regardless of any criminal activity by renters or even the owners of the storage facility (who haven’t been convicted of any crimes by a court of law after due process, mind you), the property of innocent renters would be returned to them.

      If the government wants to argue that digital property isn’t real property and doesn’t need to be returned, then intellectual property owners have a significant issue on their hands.

      • Orrie says:

        Aaah, but therein lies the rub, and the source of that nagging feeling of difficult-to-explain hurt when one contemplates modern copyright law:

        Intellectual Property may be digital property, but not all digital property (specifically: that paid for by private citizens) is, in fact, NOT property, but content with an access license.

        I’m in no way supporting this bizarre twisting of law and abuse of power, but I have a feeling that such a discrimination is EXACTLY what “Big Content” is going to claim. It doesn’t matter what you have on your hard drive or any hosted cloud, because no matter what you paid, any license can be revoked “at any time, with no notice”…

        • sagodjur says:

          That might be a valid argument if people hadn’t hosted their own files on there also. I’ve downloaded hundreds of Minecraft mods from Megaupload that are perfectly legal.

          • thefncrow says:

            That a site has non-infringing uses is not evidence that the site is, itself, non-infringing, particularly in light of the evidence in the MU indictment that indicates that MU’s business plan relied heavily on the storage and distribution of copyrighted material and that MU was knowingly paying uploaders of copyrighted material for their contributions to the MU content base.

            If your favorite Italian restaurant is a front for the Mafia to launder their dirty money, you really don’t get to be pissed at the prosecutors for shutting down the restaurant and depriving you of being able to eat their food.

            • saregos says:

              It is a sign, as per the first amendment, that the Government needs to exercise caution and narrowly tailor their response to target specifically the infringing content.

              Not seize and destroy the entire website long before anything resembling an adversarial trial can be conducted.

            • nandhp says:

              But if the Mafia ran a self-storage facility, I’d sure expect to get my stuff back.

      • Loias supports harsher punishments against corporations says:

        Yeah, that would pretty much destroy the MPAA/RIAA arguments on digital copies entirely.

      • StarKillerX says:

        Actually your both wrong, as you are looking at it incorrectly.

        YOU don’t own anything on the server, and are not even a customer of the server. In both cases the data being stored “belongs” to MU and MU is their customer.

        To use your analogy of the multi-unit storage facility, if your buddy rents 4 units and then let’s you put put some of your items into one of them, if your friend stops paying the contents of said units the owner of the site can take ownership of the contents and do with them as they see fit and no, you wont be getting your items back just because “Oh well they weren’t his so it’s not my fault he didn’t pay the rent.”

  6. thaJack says:

    Just as flying is suspicious behavior in the eyes of the TSA, uploading data to the Internet is suspicious behavior in the eyes of the MPAA/RIAA.

    • HomerSimpson says:

      In their eyes, EVERYONE does something illegal on the internet. Know that Youtube video you just watched? Somebody, somewhere owns a copyright on it as far as they’re concerned and you’re just a common thief who needs to be fined and/or locked up.

  7. chemmy says:

    ALL YOUR DATA ARE BELONG TO US

  8. humphrmi says:

    Fortunately I only use “the cloud” (http://xkcd.com/908/) for backups, so it would take a simultaneous take-down and server crash at my end to lose my data.

  9. smartmuffin says:

    “Yes, he actually said with a straight face that the U.S. government has a desire to protect consumers.”

    This coming from the website who spent months DEMANDING Obama appoint a “consumer protection tzar.” You know, to protect us. Because that’s what they want to do.

    • captadam says:

      Ooooh, it’s that scary “czar” word. Sounds Communist!

      Are you referring to Richard Cordray, the director of the Consumer Financial Protection Bureau? You know, the agency enacted by Congress?

      • smartmuffin says:

        So what, Congress isn’t part of the government now?

        I just find it amusing that Consumerist, like all other lefty internet sites, think that in matters of the Internet, the government is this big, evil, corrupt, dangerous, power-hungry authority out to screw the entire population over for fun.

        But in matters of EVERYTHING ELSE the government is the heroic champion of the underdog! The only thing standing between us and rampant cannibalism in the streets. The only thing stopping those evil free-market loving robber-barons from hunting us all for sport.

        How exactly do you reconcile those two beliefs?

        • RayanneGraff says:

          “But in matters of EVERYTHING ELSE the government is the heroic champion of the underdog!”

          Are you serious? who actually thinks this???

        • Kuri says:

          Soooo, they would be evil for lifting a gay marriage ban but are heroic for sending thousands to their deaths on a hunch?

    • Kuri says:

      You mean Czar, like those people bush had?

  10. dave731 says:

    I always thought “The Cloud” was an odd metaphor for a hosted service, not as solid sounding as remote server farm located on a fault line. If the feds really cared about consumers they would allow them to at least dispose of their data as they choose. At least the ones that didn’t contain warez.

    • Cosmo_Kramer says:

      The cloud metaphor has been used for many years before “cloud computing” became a marketing thing. I believe the source of it is “we don’t need to know the specifics of how things are routed through here, it just works.” So where a network diagram would have clear links from point to point, once it gets to the Internet you just use a cloud to represent the unknown links that get your data from source to destination.

  11. dolemite says:

    Funny how lawmakers crow about “job killers” due to piracy and drm, but they are fine with this. This absolutely will kill cloud storage and companies using it.

    • Corndolf says:

      I absolutely don’t like the way the DOJ is handling this, but let’s be honest — megaupload was not a prototypical cloud storage service. Yes, there were thousands of people who stored at least some legal content, but megaupload’s raison-d’√™tre was a copyrighted media sharing service. I’d fathom a very solid majority of its traffic related to this.

      Again, I don’t like the idea that the DOJ might willy-nilly delete content without discriminating between legit and illegal shares, but I don’t think the “cloud” concept as typified by services like Dropbox and sugarsync is the same thing as what megaupload was trying to be.

      • InsertPithyNicknameHere says:

        Well, to be clear, the DOJ isn’t deleting anything. All they’re doing is saying “okay, we have what we want, we don’t care if you do or don’t keep this on your servers anymore.” The hosting companies will *probably* delete the files, because nobody is paying them to keep the files on their servers, and other people will pay for that space. But it’s not like the DOJ is doing the deletion.

        • saregos says:

          And nobody’s paying them because all of MU’s assets have been frozen. You can’t legitimately claim that the government has not directly led to the deletion of MU’s resources, so you’re just arguing semantics.

          Your argument is somewhat like saying “Your dog is starving. I’m going to detain you here and not let you feed him. Oh, wait, your dog died? Well I’M not the one responsible for his death”.

  12. FrugalFreak says:

    if someone filed civil suit against mega, wouldn’t that protect files to be evidence?

  13. saregos says:

    I don’t think I have faith in the American justice system anymore, courtesy of this and similar cases. We’ve seen for some time that the DoJ thinks that the 1st amendment is superseded by copyright law (which it’s not).
    The actions taken in this case (much like the prior seizures over the last few years) fly directly in the face of the entirety of 1st amendment caselaw. Notwithstanding the intent of the provider, takedowns of illegal content are supposed to be narrowly tailored.
    Ignoring why on earth anyone thinks this is a criminal as opposed to civil case (Criminal implies direct copyright infringement – this is, at best, indirect), the chilling effects caused by the government’s actions are such that I don’t believe there’s a sanction sufficient to punish the oath-breakers involved.

  14. krom says:

    “Yes, he actually said with a straight face that the U.S. government has a desire to protect consumers.”

    Yeah, it’s called passive-aggressive cynicism.

    Often an attempt to shame someone into upholding their ostensible principles.

  15. Mac says:

    “Copied to government servers” – Just exactly what would they copy from their servers ? User database and the content of their accounts for additional prosecution ?

  16. VashTS says:

    The US government is wonderful. Jail pirates or who they deem pirates but CEO’s, Bankers, government officials who will destroy people’s lives, abuse and murder others for money and wealth go free.

    Here’s hoping the end will soon come.

  17. Kuri says:

    So, what was stopping them from just demanding that Mega Upload delete the offending content?

    Thanks to this a lot of legally made content is going to be gone, permanently.

  18. ZukeZuke says:

    So much for “cloud computing”…