Megaupload, Kim Dotcom Lawyers Go On the Offensive

Dennis Faas's picture

Megaupload's lawyers say that the United States Department of Justice's copyright infringement charges represent "prosecutorial overreach" and have no basis in U.S. law. The site's legal team made that argument in a white paper released to the media on Tuesday.

According to that white paper, the Department of Justice is pursuing its case against Megaupload and site founder Kim Dotcom on a "theory" that the accused participated in criminal secondary copyright infringement.

However, there's no basis for such an argument in U.S. criminal law.

Secondary Copyright Infringement Not A Crime, Lawyers Insist

Megaupload's lead lawyers, Robert Amsterdam and Ira Rothken, believe that makes continuing a case against Dotcom senseless.

"The prosecution seeks to hold Megaupload and its executives criminally responsible for alleged infringement by the company's third-party cloud storage users," Amsterdam and Rothken note in the report. (Source:

"The problem with the theory, however, is that secondary copyright infringement is not -- nor has it ever been -- a crime in the United States."

It's worth noting that civil (and not criminal) lawsuits have been filed against Internet sites and services based on the concept of secondary copyright infringement. Back in 2005, the U.S. Supreme Court ruled that movie studios could sue peer-to-peer services in order to reclaim lost revenue.

Megaupload Just a Cloud Storage Business?

Amsterdam and Rothken admit that Megaupload, which characterizes its business as a cloud storage operation, led to "some potentially infringing material" being shared.

However, the lawyers insist that this is a problem for all cloud storage services and that Megaupload should not be treated any differently than any other site.

"Despite Megaupload's lawful uses, the U.S. government has charged the company and its executives under the Racketeer Influenced and Corrupt Organizations (RICO) Act, and has branded the company, its personnel and its tens of millions of users a 'criminal enterprise' dedicated solely to infringing U.S. copyright laws," the white paper reads.

The paper, which is called "The United States v. You (and Kim Dotcom)," also repeats earlier claims by Dotcom and his lawyers that the accused, who resides in New Zealand, cannot be tried in the U.S. (Source:

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