Caught in the middle of what turns out to be one of the most complex cases of copyright infringement enforcement in history, Megaupload founder Kim Dotcom has revealed that it was compliance with privacy laws that prevented him from policing his cyberlocker website.
The tangled legal web
German-born Kim Dotcom (formerly Kim Schmitz) is no stranger to controversy or problems with the law. He's a convicted fraudster, for a start. However, his attempt to solve the problem of sharing files with his friends led to an indictment by the MPAA on charges of copyright infringement on a massive scale.
DMCA Safe Harbour
It's no secret that the MPAA, no strangers to infringement themselves, have been trying to get rid of the safe harbour provisions of the DMCA so they can prosecute people for copyright infringement more easily. They've also been pushing for invasive measures to monitor our online lives, ostensibly to aid the law enforcement agencies and protect us from child pornography, etc., but really to restrict our use of the internet to access their content. They've actually admitted, in a statement to CNet, that they believed that a criminal prosecution was the most appropriate way of dealing with "Megaupload's massive infringement" and therefore never intended to bring a civil prosecution. Presumably because the money-grubbing hypocrites would have to pay for it themselves. As it is, the costs are being borne by US taxpayers. Dotcom claims to have been taken by surprise because his legal team had told him that he and his company were protected by DMCA safe harbour and were not liable for the actions of third parties as long as they complied with the takedown notices as and when they were issued.
In most cases, entertainment companies will try to negotiate or at least issue a cease-and-desist letter when they think a service is infringing. If all else fails, they almost always file a civil suit against the alleged violator. According to DotCom, they did not do that in this case, according to CNet reporter Greg Sandoval.
Privacy laws prevented policing the uploaded content
John Campbell of New Zealand's 3 News got an interview with Dotcom in which he revealed some of the complexities that could see the case bogged down in court for years:
- the sheer size and viral nature of Megaupload made it impossible to police. Dotcom claims that the network that running on 1.5 terabytes of bandwidth — about 800 file transfers completing every second.
- In the US and Europe privacy laws prohibited them from looking into the accounts of users to seek out infringing content.
Voluntary scheme gave studios access to remove infringing content
Aware of the scale of the problem, Dotcom provided 180 content owners with the opportunity to remove infringing links via an online form AND direct delete access to Megaupload servers so they could access the system and remove the links themselves. Partners in the scheme included every major movie studio and Microsoft, who removed over 15 million links. He points to the fact that although he has been sued by a porn company and settled out of court, he has never received so much as a cease-and-desist letter from the MPAA. This, he assumed, was because he had cooperated so completely with the studios and was covered by DMCA safe harbour. What he doesn't understand is why he's been singled out while Google and YouTube claim safe harbour and aren't shut down.
However, according to the US government, the tool only removed specific links to files, though, often leaving the file in place and accessible via other links.
ISPs attempt to cap bandwidth to strangle legal streaming services
Meanwhile, Time Warner Cable have launched a tiered services that offers up to 5GB a month of data transmission for a $5 discount off their bill. The deal is sweetened with the ability to opt in and out of a tiered package at any time. A charge of $1 per GB applies for going over the limit and they're offering metered usage. Customers can switch back and forth as often as they like, but if they choose not to switch, nobody’s switching anything for them, they said in their company blog.
This has prompted a flurry of controversy as customers complain of being restricted from using legitimate streaming services like Hulu and Netflix.
Content providers unwilling to switch to streaming or allow full ownership
My kerfuffle with Armovore and the interview with Kim Dotcom have revealed that the copyright holders are aware that streaming and torrents provide a better, faster, more efficient service to users but they're not interested in doing that. In fact, what they appear to be aiming for is to create a digital climate in which we don't actually own the things we buy online — we're renting them and are obliged to pay for each use. The invasive ISP snooping laws the various governments are trying to bring in are designed to facilitate enforcement of this policy.
We don't have to take this lying down. Join the Internet Freedom Movement and the Electronic Frontier Foundation, and support your local Pirate Party. Read, share, and educate yourself to stop the slow creep into a police state run by and for big business.