It's perhaps the biggest intellectual property rights enforcement case in the history of such cases. And yet, unless you are young and tech savvy, the chances are that you've never heard of it. But if you are an internet user, the action against file-sharing site MegaUpload is going to rock your world. You just don't know it yet.
It's not only because of the scale of the international operations that were co-ordinated by enforcement agencies around the world that makes this case special.
And it's not the fact that the operators of the system appear to have thought that they could escape action by using a layered system of distributed networks, including peer to peer networking that means that hundreds of millions of users are, by extension, potentially culpable, too. There's no doubt, now: there is no safety in numbers.
And it's not the financial numbers. The media is abuzz with rumours of fantastic amounts of money washing around - and substantial cash holdings.
It's not even the ludicrous nom de plume adopted by MegaUpload's founder and CEO ("kim dotcom" - nor the fact that the whole business appears to have been structured in a proper and accountable manner.
MegaUpload was not a back-bedroom hacker's love-child, running on bits of rented servers around the world and using a networking technique that is not dissimilar to Skype (which, historians of the 'net will remember, sort of grew out of a peer-to-peer file-sharing service called KaZaA and who used a concept similar to that they developed for Skype for an online TV service called "Joost."
In fact, KaAaA was the first big target of IP lawyers challenging file sharing sites. Foreign and not big enough to fight back - unlike YouTube today - it was a soft target. Today, having been sold as a brand, it is a legal music download site: the brand had made it a near-cult in the neo-subversive world of teenage rebellion. Joost.Com seems to be little more than a promo site for Hollywood, these days, but maybe that's a little unfair.
Whatever the fairness, what is clear is that the entertainment industry has succeeded in compelling rival distribution channels to conform to their demands over how their product is delivered. And, of course paid for.
MegaUpload is not a directory in the sense of Pirate Bay (although a new business calling itself Pirate Bay appears to have a different business model.
If for nothing else, the Megaupload case is important for establishing the use of public officials to protect private, commercial, rights. The film, music and software industries are so vital to the USA's otherwise flagging economy that it has used every tool in its toolbox to compel other governments to pass laws to make reproduction and unauthorised distribution of content (and images) a criminal offence. There is logic in the view - although it takes a leap of comprehension of long-established legal principles to get there.
Historically, only tangible things may be stolen. Anything intangible was not capable of being the object of a "theft." "Rights" were enforceable in the civil courts. But as "brands" became more valuable than the goods a company sold, inflating balance sheets and justifying share prices that bore no relation to the company's actual trading, moves began to protect IP through the criminal law. Content rode on the back of that.
It is ironic that the USA's copyright laws provide so many excuses for unlawful (that is to say we say you can't do it but there are few, if any, criminal sanctions to enforce our rights) replication of the printed word (including the pernicious Digital Millennium Copyright Act). The reason for this is simple: the publishing industry does not contribute to national economies in the way that film, music and software do.
But that is not the only reason the case is important.
First, because of the near-homogenisation of laws to combat some forms of copyright infringement in many countries, action against MegaUpload could use a network of "MLATs" (Mutual Legal Assistance Treaties" and "MoUs" (Memoranda of Understanding." And because many countries, either expressly or by default due to the way laws are drafted, include such conduct within the scope of counter-money laundering laws, the network of specialist financial crime agencies known as "Financial Intelligence Units" could quickly exchange information and co-ordinate through "the Egmont" group.
That meant that the co-ordinated action could achieve three things: securing servers and the data on them (including data identifying users), securing those involved in the management and execution of the system and, most interestingly in many respects, freeze all the assets, including financial and physical, of the companies and those directing them.
As the allegations piled up against Kim Dotcom, who was arrested and remains in custody in New Zealand having been refused bail, interesting information (they cannot, at this stage, be considered "facts") began to emerge.
He's been around a long time, known by his real name of Kim Schmitz and by his alter-ego names of Kimble and Kim Tim Jim Vestor. Politely termed by some as an "entrepreneur" he has made a career of being just one small step over the line that he should toe. Convicted of insider trading, he was also accused of false statements to inflate the value of his dotcom companies during the bubble that ended in 2001/2.
Old-timers (like this writer) will remember Kimble as a hacker of telephone systems who, when he was caught, tried to say that he was testing systems and that he would sell his expertise to companies to develop secure phone systems. An early exponent of exploiting differences in international law, he operated from Germany and hacked corporate PBXs in the USA. The only offence that could be charged in both countries related to stealing corporate data - in that case, the numbers of telephone credit cards used by company staff before mobile phones became ubiquitous.
The insider trading charges arose out of his purchase of a large block of shares in a failing dotcom company called LetsBuyIt.Com. The company had burned all of its investment capital on a ridiculously complex retail website platform that didn't work so customers did not come. But the company was a media darling, often making headlines as its supposedly revolutionary technology was boosted. Schmitz announced he was going to invest the equivalent of USD50 million to fix the platform and make it go. His announcement caused the share price to rise dramatically. As it did so Schmitz sold his shares, making a large profit in the process. An investigation showed that he had, in effect, pumped and dumped the stock: he did not have the investment money nor any viable plan to raise it.
He was also convicted of embezzlement: he took a large loan from Monkey AG, of which he was the then chairman. Although he claimed he had not meant to fail to repay, the Court found he had no means of repaying the "loan" and therefore had taken the money under false pretences. (1)
Another fascinating piece of the MegaUpload story links back to early 1997. Shortly before Britain surrendered sovereignty over Hong Kong, the USA persuaded the then Hong Kong government to pass a law relating to copyright and unauthorised distribution. Some parts of that law are outrageous (making the import of legal copies a criminal offence) but some are consistent with laws in other parts of the world to protect against unauthorised copying and distribution of those unauthorised copies.
MegaUpload's primary servers were in Hong Kong where digital protection laws are some of the world's strongest.
Alleged conspirators were arrested in New Zealand, the Netherlands, Germany, Canada and the UK. In the USA, the US Department of Justice was the lead agency.
Kim Dotcom (he formally changed his name in 2005) is alleged to have been in possession of a very large amount of cash when he was arrested and to have leased "the most expensive house in New Zealand." His purchase of the house was blocked by the New Zealand government. He is also alleged to own a variety of expensive cars and other assets. It is not known where this wealth comes from: his efforts to launch a financial advisory and investment group in Hong Kong have not been successful.
The proximate cause of the action in January 2012 may never be fully revealed. In December, several high profile recording artists worked to produce a song in which MegaUpload was praised. Record company Universal Music Group demanded that the song be removed from YouTube saying that it held exclusive rights to everything produced by its artists and that YouTube had entered into an agreement to that effect. YouTube removed the video but it was later re-instated after the Google-group company denied that any such agreement existed.
Now the battle has moved to the US courts but it is being joined by a new group of interested parties. Contrary to the initial impression given by the US Justice Department - and the copyright holders who have enjoyed exclusive media coverage and are aiming at trial by media ahead of jury selection - it turns out that MegaUpload is not the exclusive preserve of copyright infringers. Many individuals and companies were using the site as both back up and a co-operative working platform, not unlike the shared documents services provided by e.g. Google.
Those users want their data back and are prepared to sue the US Department of Justice for, as they see it, hijacking it. They are now arguing that the US government has taken action that has prejudiced their interests. They want compensation for inconvenience and loss, too. The DoJ is frantically trying to work out what to do. It can't simply put the whole system back on line - that would mean becoming a publisher of the material that the entertainment companies are complaining about. And, in any case, it would take them months to understand the complexities of the system.
The current best guess is that the DoJ will ask the court to authorise the limited opening of specified customer accounts but to block public access. To do that will cost money and the DoJ is wondering if it can use some of the frozen funds to do that. Aside from anything else, comms bills have to be paid. And there is no international regime that would allow the creation of a near-global administration scheme of such a distributed organisation.
It's not just MegaUpload. It's a MegaHeadache. And the complications are a long way from being fully known.
For businesses, however, it's clear: the processes are fully in place for a widespread international action if one is warranted under IP, sanctions or bribery laws, amongst others.
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(1) Schmidt's story thus far was covered by our sister publication World Money Laundering Report in the mid 2000s.)
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