Megaupload founder Kim Dotcom (Reuters / Mark Coote)Attorneys for Megaupload founder Kim Dotcom say that the Department of Justice under US President Barack Obama misled the file storage site in order to create a case against it.According to a supplemental brief filed Wednesday in district court in Virginia [pdf], defense attorney Ira Rothken argues that the United States government asked Megaupload and Kim Dotcom to hold on to infringing files so that they could later prosecute the site using that as evidence.Last January, Dotcom’s New Zealand mansion was stormed by a squad of armed agents working in cooperation with the FBI. Dotcom, born Kim Schmitz, was imprisoned briefly while the Justice Department announced they were charging him with operating a vast copyright infringement conspiracy. Dotcom has yet to be tried, and hearings to have him extradited to the US have been postponed ad nausea. Long before an indictment was filed against the file storage site or its owner, though, the government served the company that hosts Megaupload’s servers with a search warrant pertaining to a separate investigation. As RT noted earlier, Mega willingly cooperated at the time. “Megaupload complied with the warrant and cooperated with the government’s request,” Rothken told Wired in 2012. That warrant, served in June 2010, found that 39 infringing copies of copyrighted motion pictures were held on servers located in Virginia’s Carpathia Hosting. A year later in November 2011, the government said three-dozen of those files “were still being stored on servers controlled by the Mega Conspiracy” after they were told of the infringement.“This snippet — which appears in each relevant affidavit and is the only direct, corroborated evidence the Government purports to offer as proof that Megaupload had requisite knowledge — suggests that Megaupload was warned of its potentially criminal complicity yet persisted in hosting the files without concern for their illegal content,” Rothken writes this week. “The affidavits, in short, paint Megaupload as a brazen scofflaw.”Rothken says such isn’t the case, however, because Megaupload purposely left those files in place in order to cooperate with the Justice Department. “Megaupload had every reason to retain those files in good faith because the Government had sought and obtained Megaupload’s cooperation in retrieving the files and warned that alerting users to the existence of the warrant and the Government’s interest in the files could comprom
ise the investigation,” Rothken says.Indeed, Dotcom said the same thing last year while speaking with Torrentfreak. “Obviously when the FBI contacted us they made this clear to us and therefore we did not touch the accounts or the files,” he said. “We even emailed back to Carpathia to ask the FBI (and the FBI had our emails before asking for the Mega domain seizure) if we should do anything about those files. We never got a response.”Only recently, however, has the court unsealed the warrant used to seize Megaupload, which Rothken suggests only sets the Justice Department up for further failure.“Such unsealing lays bare a crucial omission the Government made to the Court in the secret process,” he writes. “Specifically, the Government’s affidavits underpinning the warrants omitted critical, exculpatory information regarding whether, why and how Megaupload knew it was hosting criminally infringing files.”When Rothken weighed in on the matter last year before filing the latest legal brief, he told TechDirt, “If anything, such a cooperation request by the government bolstered Megaupload’s view that as a cloud storage intermediary it was operating lawfully even if some users may have been misbehaving.”This week, Dotcom directed followers of his Twitter account to Rothken’s legal filing, adding, “US government acting in bad faith. Here’s evidence of DOJ misleading US court.”“By the way… THIS IS HUGE!” added Dotcom.To mark the one-year anniversary of the raid on Dotcom’s home and the subsequent seizure of his website and assets, he will release a new service, “Mega,” later this month.