Megaupload Preparing MegaDefense

Portions of Mr. Rothken's statements below have been taken from an ArsTechnica interview you can read here.

Megaupload's attorney Ira P. Rothken has a succinct description of the US government case against his client: "wrong on the facts and wrong on the law."

In Mr. Rothken's words, the government is acting over-aggressively and overbroadly by taking down one of the world's largest cloud storage services "without any notice or chance for Megaupload to be heard in a court of law." The result ignores substantial non infringing uses of cloud storage and is both "offensive to the rights of Megaupload and to the rights of millions of consumers worldwide" who stored personal data with the service.

Indeed, in Mr. Rothken's view, attempting to hold a cloud storage provider criminally responsible for the acts of its users is known as "secondary" criminal copyright liability and there no such statutory claim under US Law. Secondary copyright liability is judge made law in "civil" cases, such as Grokster, and such theories are not "criminal" in nature.

Instead, the government's willingness to pursue the case as an international racketeering charge meant "essentially only sticking up for one side of the copyright vs. technology debate." The result, Rothken says, is "terrible chilling effect it's having on Internet innovators" who feature cloud storage components to their business.

This sort of thing makes Rothken furious. Using "James Bond tactics with helicopters and weaponry, and breaking into homes over what is apparently a philosophical debate over the balance between copyright protection and the freedom to innovate, are heavy-handed tactics, are over-aggressive, and have a detrimental effect on society as a whole," he said. In addition, the raid was a reminder that bills like the Stop Online Piracy Act "ought not to ever be passed, because these tactics [the helicopters, etc.] are so offensive that if you take the shackles off of government, it may lead to more abuse, more aggression."

Rothken also suggested that the timing of the raid was suspicious; "over a two-year period, they happened to pick the one week where SOPA started going south."

For now, the case remains in New Zealand, where questions of bail and then extradition are being handled by local courts. Though the entire case could take a long while to wind its way to completion, Rothken concludes, "Megaupload believes strongly it's going to prevail."