DOJ releases Megaupload discussions about mass infringement

Megaupload's lawyer says the conversations show the company's struggle with infringing materials stored there

Employees of the online file storage service Megaupload discussed widespread copyright infringement on the site in internal communications released Friday by the U.S. Department of Justice.

Evidence released by the DOJ to comply with a November order by Judge Liam O'Grady of the U.S. District Court for the Eastern District of Virginia shows multiple conversations about the scope of copyright infringement on the site. The DOJ seized Megaupload in January 2012 and charged owner Kim Dotcom and other defendants with criminal copyright infringement and other crimes.

In a May 2007 Skype conversation, according to the DOJ, Megaupload CTO Mathias Ortmann told head software developer Andrus Nomm: "I have a feeling that Kim tolerates a certain amount of copyright violation."

+ ALSO ON NETWORK WORLD The Megaupload hullaballoo +

"Yep, but not too obvious ones," Nomm responded.

"Since it helps initial growth," Ortmann added. "But we must not overdo it."

September 2007, via Skype: "We're modern pirates," said Bram van der Kolk, Metaupload network engineer.

Ortmann: "We're pretty evil, unfortunately, but Google is also evil, and their claim is "don't be evil.'"

Van der Kolk: "The world is changing, this is the internet, people will always share files and download their stuff for free, with or without Megaupload."

March 2009: "We do have legit users," Ortmann said.

Van der Kolk: "Yes, but that's not what we make $ with."

In another conversation, Ortmann suggests deleting videos on the site that are longer than 30 minutes and meet a threshold number of views. "But 99.999 percent will be deleted then," Van der Kolk said.

A spokeswoman for the Motion Picture Association of America said the DOJ release shows significant evidence of illegal behavior. But Megaupload lawyer Ira Rothken said the conversations show employees of a cloud storage company debating the amount of copyright infringement by customers.

The conversations "show the tensions that evolve with any cloud storage company, in terms of trying to balance running an efficient ... site with the notion that the Internet as a whole contains a lot of infringing material," Rothken said. "If anything, the DOJ should be sympathetic to the challenges cloud storage providers have at this point in time."

The DOJ release is made up of "recycled allegations" that don't point to criminal copyright infringement, Rothken said. At best, the conversations suggest secondary copyright infringement, and the U.S. doesn't a criminal statute against secondary infringement, he said. Copyright owners would have to file civil lawsuits against secondary infringement.

"This sounds like 191 pages of a meritless criminal theory," Rothken said. The conversations are "about whether users are doing bad things on the site. The notion that they keep piling on more evidence to bolster civil claims of secondary copyright infringement, to us look like they're desperately trying to mislead the public."

The criminal case is ongoing.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is grant_gross@idg.com.

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