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MegaUpload lawyers call on US courts to dismiss infringement case

By | Published on Friday 1 June 2012


Lawyers for MegaUpload have submitted papers with the US courts asking that the criminal case against the controversial file-transfer company be dismissed on the basis that they never had an office within America so the firm does not fall within the jurisdiction of the American courts.

The US authorities who have been pursuing the case against MegaUpload and seven of its executives are sure to say that by trading in the US, and by basing its actual servers in the States, the American courts do have jurisdiction over the Mega empire, which stands accused of copyright infringement, money laundering and racketeering.

But it is true that the US authorities have not been able to serve a criminal summons against the MegaUpload corporate entity because of the lack of a base in America. The firm is incorporated in Hong Kong. Lawyers for the Mega team say in their latest court submission: “Wholly foreign corporations may not be prosecuted for alleged violations of federal criminal law unless they waive [the serving of a summons]. In short, a corporation such as MegaUpload cannot be brought within the jurisdiction of this court for criminal proceedings absent its consent”.

MegaUpload’s lawyers have previously presented the same arguments in the New Zealand courts, where four Mega execs are fighting extradition to the US, including founder Kim ‘Dotcom’ Schmitz. The argument there is that the company cannot be prosecuted because of jurisdiction issues, and the charges against Schmitz et al individually do not come with a sufficiently long sentence to fall under the remit of the US/New Zealand extradition agreement.

The Mega team also continue to claim that the company’s management team cannot be held liable for any copyright infringement undertaken by the service’s customers, certainly not under the criminal law. While technology providers have been held liable for their customer’s infringements in civil cases, it’s not clear what the position is regarding criminal proceedings of this kind in the US, though in Sweden the founders of The Pirate Bay were found guilty of copyright crimes for providing the tools to help others infringe. And the US authorities are also claiming that Mega executives themselves uploaded unlicensed content to the MegaUpload servers, and incentivised others to do so too.

The legal wranglings continue.