On February 13, 2015, the Department of Justice (“DOJ”) announced that Andrus Nomm, a computer programmer from Estonia who worked for Megaupload.com from 2007 until his arrest in January 2012, pleaded guilty in connection with his involvement with Megaupload and associated piracy websites. He is sentenced to a year and a day in federal prison for conspiring to commit felony copyright infringement. In court papers, Nomm agreed that Mega Conspiracy’s conduct caused more than $400 million loss to copyright holders and that the group gained at least $175 million in proceeds. He also admitted that he was aware of the stored copyright-infringing content on the websites and that he personally downloaded copyright-infringing files from the Mega websites.
Megaupload.com was a file-sharing company established in Hong Kong by Kim Dotcom in 2005 and soon became one of the world’s largest piracy hubs. At one point, it accounted for 4% of all the Internet traffic and had more than one billion total visits, 150 million registered users, and 50 million daily visitors. According to The Guardian, Megaupload made a huge profit by paying people to upload pirated materials and facilitating unsanctioned exchanges of music and movies. On January 19, 2012, the DOJ shut down Megaupload and prosecuted the Mega group, after intense lobbying by the movie and music industries. Afterwards, according to another statement published by The Guardian, the Recording Industry Association of America and the Motion Picture Association of America brought civil lawsuits targeting Dotcom.
The DOJ news release has spurred a strong reaction from Kim Dotcom side. Ever since the guilty plea was released, Kim Dotcom, currently residing in New Zealand, has repeatedly criticized the U.S. legal system over Twitter by stating, “An innocent coder pleads guilty after 3 years of DOJ abuse, with no end in sight, in order to move on with his life.” Ira Rothken, Dotcom’s chief global counsel, also sent a text message to Ars Technica, saying that the DOJ “used Andrus Nomm’s weak financial condition and inability to fight back to manufacture a Hollywood style publicity stunt.” According to BBC, Rothken tried to play down the significance of the guilty plea, claiming that Nomm “lost on procedure rather than merit.” He also made a few legal statements with regard to the U.S. copyright law, including, “video streaming is never a copyright crime in the United States,” “the failure to filter was at most a civil issue and not a criminal issue,” and “the notion that someone does not care is also not a crime, it’s not even a civil wrong.”
In addition to the legal confrontation by Kim Dotcom group, they also sought recourse to politics. The Guardian publishes a statement detailing their political effort. Claiming that “we are all children of Assange," Dotcom group established a new political party, which will contest the next New Zealand general election. They also endeavor to pass safe harbor laws that will protect parties that acted in good faith. Dotcom sees his political party as the beginnings of a worldwide stirring against the surveillance state. In addition, he also made an album, hoping to know what an artist goes through. He wants to know how artists feel and what kind of obstacles they have to overcome when releasing an album, because he wants to create best tools for artists.
The case against Megaupload was one of largest criminal copyright cases that the U.S. government has charged. Over the past 20 years, Congress has increased the scope and magnitude of penalties in relation to criminal copyright infringement as evidenced in a series of Acts, including No Electronic Theft Act (1997), Digital Millennium Copyright Act (1998), Anti-Counterfeiting Amendment Act (2004), Family Entertainment and Copyright Act (2005), Prioritizing Resources and Organization for Intellectual Property Act (2008), and Anti-Counterfeiting Trade Agreement (2011). After the tragic death of Aaron Swartz, who downloaded many journal articles from JSTOR and was then prosecuted by the U.S. government, the adequacy of criminal penalties and the culpability of the infringers have ignited a heated discussion over the ever-increasing criminal punishments embodied in the above acts. This Megaupload case has again brought to light the controversies behind these criminal penalties provisions and their real life implementation.
Yaping Zhang is a 2L at Harvard Law School.