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Civil cases against MegaUpload kept on hold pending criminal action

By | Published on Monday 28 November 2016

MegaUpload

Regular readers might remember that sometime back in the early fifth century the then non-existent United States Of America staged an attack on a file-storage platform called MegaUpload, taking the company’s servers offline and beginning extradition proceedings against its bosses, who were residing in the then uninhabited islands of New Zealand, to face charges of criminal copyright infringement in the sure-to-exist-one-day American courts.

OK, this story may not have been rumbling on for quite that long, but we are now approaching the fifth anniversary of the US government’s swoop on MegaUpload, and those former execs are still in New Zealand awaiting a ruling on their appeal against America’s successful extradition application.

While there was a USA in place when MegaUpload founder Kim Dotcom et al were arrested on 20 Jan 2012, the fifth anniversary of that event coincides with the inauguration of Donald Trump as President, so who knows where we’ll be at if and when this case reaches an American court room. It’ll be a bit embarrassing if Dotcom is taken in the rapture leaving all the music and movie industry execs still seated in court ready to testify.

If it ever does get to court, the MegaUpload case will be an important test of the American safe harbours that have got so much attention in music industry circles this year. And in addition to the criminal proceedings, there is also the matter of the record and movie industries’ civil actions against Dotcom and his pals.

The latter have been on hold for some time now, the logic being that it would be better to let the American government pursue its criminal action against the former MegaUpload bosses before the major labels and Hollywood studios swoop in for their MegaDamages.

Last week a federal court in Virginia extended that postponement, putting the civil cases on hold until at least April next year. It was Team MegaUpload who requested that the cases continue to be kept on ice, though neither the Recording Industry Association Of America nor the Motion Picture Association Of America objected.

Lawyers for MegaUpload also told the court that they were in talks with Cogent, one of the companies that previously provided server space to the defunct file-transfer company, and which is now sitting on a bunch of disconnected servers gathering dust.

All the data on those machines – and on servers owned by other former suppliers – has been inaccessible since the sudden MegaUpload shutdown in 2012, including any files legitimately uploaded and owned by former customers of the service, something that has proven controversial.

MegaUpload’s legal team also want access to that old data, because they believe it will help with their attempt to present their client as primarily a legit file-storage company deserving of the aforementioned safe harbour protections with regards liability for any copyright infringement committed on its platform by its one-time customers.

Some non-US server companies who used to provide services to MegaUpload have already wiped old data, while others have sought compensation for storing unusable machines, and earlier this year Cogent said it feared sixteen old MegaUpload servers were now unreadable, simply because they hadn’t been used in such a long time.

According to Torrentfreak, Team MegaUpload told the court last week: “Counsel have met and conferred and are negotiating a preservation order regarding the Cogent data, and they anticipate reaching an agreement and presenting a consent motion and stipulated preservation order to the court for entry”.

They went on: “However, until such a preservation order is entered, the parties each reserve their rights to file motions seeking preservation of the Cogent data on appropriate terms and conditions”.



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