I, LAWRENCE LESSIG of Cambridge, Massachusetts, United States of America, swear as follows:

1. I am a professor of law at Harvard Law School, Harvard University and a practicing lawyer. One of my chief areas of specialty has been intellectual property law in the context of the Internet.

2. I have been retained by the respondents’ (alternatively referred to as “defendants”) United States attorneys, Quinn Emanuel Urquhart & Sullivan LLP and Rothken Law Firm as liaison counsel to Anderson Creagh Lai Limited, to evaluate the Superseding Indictment and Record of the Case, to presume the truth of factual allegations therein, and to give my opinion as to whether a prima facie case has been made out that that would be recognized by United States federal law and subject to the Treaty on Extradition Between the United States of America and New Zealand, Art. VI, § 3, 1970 U.S.T. LEXIS 470; 22 U.S.T. 1s (US – NZ Extradition Treaty).

3. I have also been asked to give my opinion as to whether the Superseding Indictment and Record of the Case are reliable, viewed in light of obligations of the United States to act as a model litigant in its extradition request for alleged criminal misconduct.

4. It is my opinion that the Superseding Indictment and Record of the Case filed by the United States Department of Justice (DOJ) do not meet the requirements necessary to support a prima facie case that would be recognized by United States federal law and subject to the US – NZ Extradition Treaty. On the whole, the filings are not reliable.

5. Charges in the Superseding Indictment fall into three classes:

(a) Counts Four through Eight allege that respondents themselves committed crimes of copyright infringement. General allegations in such Counts do not find support in specific facts set forth in the Record of the Case. A showing of willful criminal copyright infringement requires compact factual proof identifying a specific copyrighted work, a right of the owner that has been violated, the geographical location of the infringement and other specific facts needed to establish a violation of United States criminal law. Such compact facts are absent here. The generalized accusations, defective and irrelevant allegations, scattered facts of alleged multiple infringements and statistics set forth in the Superseding Indictment and Record of the Case do not satisfy requirements of proof but rather manifest unreliability of the overall approach. Charges in Counts Four, Seven and Eight are outside the three-year statute of limitations provided by the US-NZ Extradition Treaty that I understand is applicable in this proceeding as well as lacking proof of other necessary elements.

(b) Counts One through Three allege conspiracy. Count Two (Conspiracy to Commit Copyright Infringement) is the chief matter discussed herein. In brief, it is alleged that respondents agreed with users of the Megaupload system that users would commit copyright infringement by means of Megaupload. Again, general allegations do not find support in actual facts. There is no showing of specific criminal “willful” infringements committed by specific individual users. There is an even more serious lack of evidence of communications between respondents and such alleged users needed to prove an agreement that is subject to laws of conspiracy. The United States Constitution (U.S. Const.) prohibits the United States DOJ from prosecuting, as they apparently want to here, a new kind of criminal conspiracy based on defendants providing an “environment of infringement” or their failing to disable all links to an allegedly infringing copy. Under the approach of the DOJ, many online operations and even individual persons would, without notice, suddenly become subject to criminal prosecution. Count One (Conspiracy to Commit Racketeering) and Count Three (Conspiracy to Commit Money Laundering) require showings of independent predicate offenses, which are lacking here.

(c) Counts Nine through Thirteen allege Fraud by Wire and Aiding & Abetting Fraud by Wire. Charges involve an online “Abuse Tool” provided to copyright owners by Megaupload so that owners could report to Megaupload the appearance of unauthorized links to their works and automatically disable access to such links. It is alleged that owners were misled by Megaupload’s messages provided with the tool and that links, outside those included in such copyright takedown requests, were not removed although copyright owners believed that they should have been. The facts set forth in the Record of the Case fail to show a Wire Fraud offense or any offense. A novel interpretation of the Digital Millennium Copyright Act (DMCA) needed to support such charges would be contrary to the nature of Internet operations and to the DMCA itself. Essential elements of causation and damages are not supported by proof.

114. The DOJ has failed to prove a case of direct civil copyright infringement. The Megaupload cloud storage system was the type of passive Internet hosting contemplated by the Loopnet court. There is an absence of compact facts that show liability of respondents for copyright infringement in the United States of a specific copyrighted work. Just as important, the Fourth Circuit Court of Appeals in Loopnet concluded that, “[a]t bottom, we hold that ISPs, when passively storing materials available to other users upon their request, do not ‘copy’ the material in direct violation of section 106 of the Copyright Act.” Loopnet, supra, at 555.

115. The DOJ has failed to prove a case of criminal copyright infringement. Criminal infringement prohibitions under 17 U.S.C. § 506(a) apply to specific kinds of misconduct or to protect specific kinds of copyrighted works. Necessary specificity as to extraditable offenses is not clearly stated in the ROC. To prove a criminal case, in addition to showing copyright infringement of specific works in the United States, the DOJ must show a very high level of knowledge and intent, namely, a “willfulness” mental state. “Evidence of reproducing and distributing copyrighted works does not, by itself, establish willfulness.” See 17 U.S.C. § 506(a)(2). Under a willfulness standard, proof of indifference, recklessness, or negligence is insufficient to constitute criminal copyright infringement. Attacking an ISP for generally bad or negligent policies or alleging how the ISP could be better, faster, or more precise in its takedowns, user terminations, or repeat infringer policies is not enough. “Willfully” as used in 17 U.S.C. § 506(a) connotes a “voluntary, intentional violation of a known legal duty.” (See para. 61 and United States v. Liu, 731 F.3d 982, 990 (9th Cir. 2013).) Allegations revolve around, “fostering an environment conducive to infringement,” similar to a civil case of secondary copyright infringement. Principles of United States criminal law prohibit novel and expansive prosecutions on the basis of such evidence.

116. The DOJ has failed to prove a case of criminal conspiracy. In addition to proof of criminal copyright infringement in the United States of specific copyrighted works, the DOJ must show an agreement with respect thereto between the actual infringer and an alleged conspirator. No such agreement is shown here. General allegations of, “fostering an environment” cannot substitute for the requisite agreement or for the necessary “willful” mental state of the alleged conspirator.

117. The DOJ has failed to prove a case of wire fraud. In my opinion, the DOJ is improperly attempting to use an inappropriate “wire fraud” theory to criminalize new categories of conduct without the required Congressional authorization. Criminal charges based on alleged DMCA shortcomings would be contrary to DMCA principles stated by Congress. Wire fraud allegations further suffer from lack of requisite damages suffered by the victim of the fraud.

118. The remaining alleged counts of RICO and Money Laundering require a predicate offense that is lacking here.

119. It is my opinion that the Superseding Indictment and Record of the Case filed by the DOJ do not meet the requirements necessary to support a prima facie case that would be recognized by United States federal law and subject to the US-NZ Extradition Treaty. An attempt has been made to extract facts from multiple sources and over a wide span of time, to organize a large number of otherwise disconnected facts by using systematic phraseology and to juxtapose phrases in order to create an impression of coherence and substance. However, the attempt fails to reach its goals and any impression of coherence or substance dissolves under examination. Insofar as they are alleged in the Superceding Indictment and the ROC, respondents’ actions were not prohibited by criminal statutes of the United States. Filings of the DOJ attempt to create a false impression of criminal guilt and are not reliable.