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Lawyers say the US government should buy servers holding lost MegaUpload data

By Chris Cooke | Published on Wednesday 26 August 2015

Legal reps for MegaUpload have argued that the American government should buy the shed load of servers that contain files once uploaded to the defunct file-transfer platform, so that the data stored on them can be kept as evidence, and be ultimately returned to the people who uploaded the content in the first place.

As much previously reported, when the US authorities took controversial file-transfer set-up MegaUpload offline in 2012, at the same time charging its management with various crimes, users of the service lost access to files they were storing on the company’s servers without warning. A lot of it was copyright infringing music and movies, but not all of it, and some people lost access to content they themselves had created.

MegaUpload actually rented server space from other companies, which were left with disconnected hard-disks full of content after the shutdown, and nobody paying them to continue storing the files those servers contained.

A debate then ensued as to what should happen to those servers, and whether those who had used MegaUpload for legit purposes should and could get their files back. Although the courts were sympathetic with customers caught in the crossfire, the US government, music and movie industries weren’t very helpful when it came to finding a way to reconnect users with their non-infringing content.

One server company in Europe then deleted the MegaUpload data it had stored, but the biggest server firm used by the defunct business, US-based Carpathia, is still storing its former MegaUpload files, not least because the American authorities said they might need access to them as part of the criminal investigation into the former file-transfer service and its management.

But, as previously reported, Carpathia was recently acquired by another company called QTS, and it is not so keen to carry on covering the costs of storing a shed full of servers it can’t actually use, and therefore went to court earlier this month seeking permission to wipe those hard-disks clean once and for all.

The former MegaUpload management – and especially founder Kim Dotcom – are against this proposal, as is the Electronic Frontier Foundation, which has been assisting some of those who lost their files during the 2012 shutdown. The former reckon that they might need access to the servers to gather evidence if the criminal or civil cases against them ever reach court, while both remain hopeful former MegaUpload customers might one day get their content back.

According to Torrentfreak, in a new court filing, reps for the former MegaUpload managers write: “The database servers can show safe harbour compliance. The web servers can show the copyright neutral nature of the interface design. The content servers in combination with other data can show fair use and substantial non-infringing uses and users”.

The filing goes on to allege that the US authorities’ blasé attitude to the lost MegaUpload data might not just be indifference or arrogance towards affected customers, but a deliberate attempt to beef up their case in court, should America ever successfully extradite Dotcom et al.

Because, say Team Mega, the feds have taken a copy of a small sample of data from the Carpathia servers which will show MegaUpload being used to infringe copyright, though that might not show the full picture of the defunct operation. But if the rest of the Carpathia data is now deleted, it would be impossible for anyone to demonstrate that.

The legal men write: “The government cannot criminally and civilly indict all the revenues arising out of all the global users of the MegaUpload cloud storage site in the largest copyright case in history, while at the same time cherry picking a sliver evidence to retain for trial and throwing away the rest to manifestly prevent the mounting of a fair defence”.

The MegaUpload lawyers seem to concede that it is unfair that Carpathia should have to continue to cover the costs of storing the lost data. The solution, they therefore reckon, is that the US government should buy and store the servers until progress can be made on the legal case against Dotcom and his former colleagues. “The government should bear the cost of such purchase and preservation”, they add.

It remains to be seen how the judge overseeing the case now rules regarding the lost MegaUpload data.