IN THE DISTRICT COURT
AT NORTH SHORE
CRI-2012-092-1647
UNDER

Extradition Act 1999

IN THE MATTER

Proceedings to extradite Kim Dotcom, Bram van der
Kolk, Finn Habib Batato and Mathias Ortmann

BETWEEN

THE UNITED STATES OF AMERICA
Applicant

AND

KIM DOTCOM, BRAM VAN DER KOLK, FINN
HABIB BATATO AND MATHIAS ORTMANN
Respondents

AFFIDAVIT OF LAWRENCE LESSIG
DATED SEPTEMBER 2015

Assigned Judge:
Case Manager:

SOLICITOR ACTING:
S L Cogan
Anderson Creagh Lai Limited
Level 1, 110 Customs Street West
PO Box 106-3197
Auckland 1143
Tel: (09) 300 3196
Fax: (09) 300 3197
Email: simon@acllaw.co.nz

Judge Dawson
Jennifer Spence

COUNSEL:
R M Mansfield
22 Lorne Chambers
PO Box 2674
Shortland Street
Auckland 1140
Tel: (09) 304 1627
Email: ron@22lorne.co.nz

 1

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.

SUMMARY OF OPINIONS
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

 2

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

 3

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.
QUALIFICATIONS AND EXPERIENCE
6.

In 1983, I received a B.S. in management from the Wharton School,
and a B.A. in economics from the University of Pennsylvania. I
received an M.A. in philosophy from Cambridge University, graduating
in 1986. I received a J.D. from Yale Law School in 1989. After
completing law school, I clerked for Judge Richard Posner of the
Seventh Circuit Court of Appeals, and for Justice Antonin Scalia of the
United States Supreme Court. I was a professor of law at the
University of Chicago Law School from 1991 to 1997, and from 1997
to 2000 I was the Jack N. and Lillian R. Berkman Professor for
Entrepreneurial Legal Studies at the Harvard Law School, where I was
affiliated with the Berkman Center for Internet and Society. From 2000
to 2009, I was a professor at Stanford Law School, where I established
the Center for Internet and Society. In 2009, I returned to Harvard Law
School.

7.

I have been a close observer of the Internet and its culture since the
1990s. I taught one of the first “Law of Cyberspace” classes at an
academic law school in 1995 (Yale). Since then, I have taught
numerous Internet and copyright related classes. I have attended over
three hundred conferences about law and technology, and I have

 4

consulted extensively with policy makers about the regulation of
cyberspace.
8.

In 2001, I co-founded Creative Commons, an alternative copyright
licensing regime and online platform that allows authors to license
works freely for certain uses, or dedicate them to the public domain.

9.

I have written extensively in the field of Internet regulation. I have
published six books and over fifty articles exploring the relationship
between regulation and cyberspace, and have given scores of lectures
on the same topic. The focus of most of this work has been the
interplay between technology and law, and on the use of law to effect
changes in technology and, in particular, internet architectures. In
addition to my scholarly work, I have been a regular columnist for The
Industry Standard and Wired. I have also contributed essays to the
New York Times, the Wall Street Journal, the Washington Post, the
Los Angeles Times, and the Boston Globe.

10.

I have been active in a number of Internet-related law suits and policy
determinations. I have testified before Congress on a number of
issues, including net neutrality, telecommunications regulation, and the
Child Online Protection Act. I have met with the DOJ and the Federal
Communications Committee on matters related to the merger of AT&T
and MediaOne. In 1997, I was asked by Judge Thomas Penfield
Jackson to serve as Special Master in the DOJ’s consent decree case
against Microsoft Corporation. I also represented a group of plaintiffs
challenging Congress' Sonny Bono Copyright Term Extension Act
before the United States Supreme Court. Eldred v. Ashcroft, 537 U.S.
186 (2003).

SCOPE OF INSTRUCTIONS AND EVIDENCE
11.

I understand that the United States seeks an order from New Zealand
to extradite Kim Dotcom.

12.

I have read, and agree to comply with, the Code of Conduct for Expert
Witnesses at Schedule 4 of the High Court Rules, New Zealand.

 5

13.

I have read the Superseding Indictment and the original Record of the
Case, along with the First through Eighth Supplemental Affidavits
(collectively called the Record of the Case or ROC). In my analysis
below I refer to Megaupload as shorthand for the cloud storage sites at
issue in the superceding indictment and ROC, including for example,
Megavideo. If I failed to address anything in my analysis from the
superceding indictment or the Record of the Case it is because I found
it inconsequential to my ultimate opinions reached herein. I have also
read the Ortmann FBI Interview of 20 January 2012 to familiarize
myself with particular facts concerning technical operations at
Megaupload
functions,

including,
dual

for

use

example,

server

automated

infrastructure,

cloud

caching

storage
servers,

deduplication, and notice and takedown methods. I have reviewed
legacy

screenshots

of

the

Megaupload

website

found

at

www.archive.org, including, but not limited to, reading the Megaupload
Terms of Use as they existed on or about 14 May 2011 (Megaupload
TOU).
14.

For the purposes of this analysis, I presume the truth of specific factual
allegations in the ROC. I also rely on public court documents and
statements of Mathias Ortmann and others regarding cloud storage
technology. I presume the truth of statements of Mathias Ortmann on
matters of technical functionality, as I find them largely uncontradicted
by facts in the Superceding Indictment and Record of the Case, for
example, that Megaupload’s cloud storage technology was copyright
neutral and unable to discern whether user content was infringing,
authorized, or fair use.

15.

For purposes of this analysis, I do not rely on statements in the
Superseding Indictment and Record of the Case that lack a
consequential connection to specific charges. Thus, I often disregard
general accusations, legal conclusions and allegations that do not
support the prima facie case that is the focus of this proceeding and
are thus irrelevant.

16.

I confirm that opinions stated herein and related issues are within my
area of expertise.

 6

17.

I am not an expert in New Zealand law. For the purposes of this
analysis, I have been instructed that the US-NZ Extradition Treaty
requires application of New Zealand’s shorter statute of limitations for
criminal copyright infringement. US – NZ Extradition Treaty, Art. VI, § 3,
1970 U.S.T. LEXIS 470; 22 U.S.T. 1.When the US indictment was filed
on January 5, 2012, the statute of limitations for criminal copyright
infringement in New Zealand was three years from the date the
offence was committed. See New Zealand Copyright Act 1994 § 131A
(repealed July 1, 2013).

FACTUAL CONTEXT AND ALLEGATIONS
18.

The following facts appear to be established for purposes of this
opinion:
(a)

That Kim Dotcom was a founder and shareholder of
Megaupload, and that the charges listed against him relate
solely to the functioning of Megaupload, its affiliates, and its
employees. (Sup. Indictment ¶ 30.)

(b)

That Megaupload and related sites were members of a class of
“cloud storage websites” that provide storage of and access to
digital files under the direction of individual “users,” “customers”
or “visitors.” Cloud storage users can access their files from
anywhere in the world and can enable other persons to access
such files. (Ortmann FBI Interview of 20 January 2012 at 9-12).

(c)

That Megaupload’s software code and interface design
provided automated processes for users to upload files for
storage on Megaupload; that users received unique links or
“URLs” to such files; that users decided what persons, if any,
could access their files; and that Megaupload had no control
over such decisions. (Ortmann FBI Interview of 20 January
2012 at 9).

(d)

That Megaupload and related sites, e.g., MegaVideo, were
Online Service Providers (“OSP”), also known as Internet
Service Providers (“ISP”), that operated from 2005 to January
2012, when they were shut down.

 7

(e)

That Megaupload used standard software methods for data
management

called

“deduplication”

that

reduce

storage

requirements for duplicate files. That when a file was uploaded
to storage, such methods generated an identifier, called an
“MD5 hash,” from the contents of the file. (Sup. Indictment ¶
23). This deduplication approach appears the same as the
technology used by Dropbox, a cloud storage industry leader.
https://blogs.dropbox.com/dropbox/2011/07/changes-to-ourpolicies/ (“De-duplication – We’re always working to make
Dropbox more efficient. For example, we may de-duplicate files,
which means we store only one copy of files or pieces of files
that are the same…”)
(f)

That when identical files uploaded by different users generated
the same MD5 hash, Megaupload would retain only one copy of
the file, but would generate a unique link or “URL” for each
individual user. (Sup. Indictment ¶ 23).

(g)

That Megaupload developed automated “caching” software and
hardware combinations that facilitated speedy transfer of the
most popular files through geographically efficient storage
locations. (Ortmann FBI Interview of 20 January 2012 at 31-33,
56-58). This method is referred to as a Content Delivery
Network (CDN). (see, Pathan and Buyya, A Taxonomy and
Survey

of

Content

Delivery

Networks

www.cloudbus.org/reports/CDN-Taxonomy.pdf;
“Content

delivery

at

Wikipedia,

network”

at

https://en.m.wikipedia.org/wiki/Content_delivery_network).
(h)

That users of Megaupload’s family of online services users
agreed to Terms of Use that prohibited copyright infringement.
(Megaupload TOU, paragraph 8(c) and 8.4).

(i)

That Megaupload had a policy to terminate repeat infringers
(Megaupload TOU, para. 8(c), 8.4 and 13.1) and did terminate
repeat infringers. (Ortmann FBI Interview of 20 January 2012
at 67).

 8

(j)

That Megaupload was a popular cloud storage ISP with many
users:
(i)

That as of January 2012, Megaupload accounted for
four percent of all Internet traffic, had more than one
billion visitors in its history, and had an average of 50
million daily visits. (Summary ¶ 22(g).)

(ii)

That according to the United States DOJ, Megaupload
leased over 25 petabytes of data from Carpathia Hosting
Inc. (Carpathia) in the United States. (Summary ¶
22(q).)

(iii)

That according to the United States DOJ, Megaupload
leased 19 petabytes of data from Leaseweb in the
Netherlands. (Summary ¶ 22(s).)

(k)

That the United States DOJ further reports that Megaupload
users had uploaded “up to approximately 206 million total
unique files” as of January 19, 2012. (Summary ¶ 32(h).)

(l)

That Megaupload maintained a “rewards program” that applied
formulaically to user-controlled files that led to user-controlled
file downloads. If the volume of downloads met pre-determined
amounts certain payments would be triggered. The program
prohibited file sizes over 100MB to deter videos that tend to
have larger file sizes. Terms of Use that prohibited infringing
materials governed the program. (Megaupload TOU, para.
8(c) and 8.4).

(m)

That Megaupload onlines services were capable of and had
substantial non-infringing uses including for example:
(i)

File backups. Of the 14.9 million unique video files
stored on servers located within the United States,
roughly 42% had never been viewed. ROC ¶ 32(c).

(ii)

Content Owners. One user, Kyle Goodwin, sought relief
for the release of his non-infringing files through litigation
in the United States. I refer in particular to the

 9

Emergency Motion for Protective Order by Non-Party
Carpathia Hosting, Inc. and for Additional Relief,
Declaration of Interested Party Kyle Goodwin in Support
thereof 12-cr-00003-LO, ¶ 5 (Dkt. 51).
(iii)

Fair Use and Authorized Uses. Additional non-infringing
uses were reported: Jon Brodkin, “Megaupload Wasn’t
Just for Pirates: Angry Users Out of Luck for Now,”
ArsTechnica,

Jan.

20,

2012

(available

at

http://arstechnica.com/gadgets/2012/01/megauploadwasnt04763.00001/6106406.1)

Nick

Galvin,

“Megaupload Closure Hits Legitimate Users,” Sydney
Morning

Herald,

Jan.

23,

2012

(available

at

http://www.smh.com.au/technology/technologynews/megaupload-closure-itslegitimate-users-201201221qc7d.html).
(n)

That, from its inception, Megaupload accepted and processed
notices from copyright owners of links to infringing materials
pursuant to “notice and takedown” provisions of the DMCA.
That Megaupload responded to such notices by disabling
access to such links. (Ortmann FBI Interview of 20 January
2012 at 29-30.)

(o)

That,

commencing

on

October

15,

2009,

Megaupload

registered an agent to receive DMCA notices from copyright
owners. (Sup. Indictment 21 n.1)
(p)

That Megaupload also negotiated with copyright holders, or
their agents— e.g., the Recording Industry Association of
America, Disney, Warner Brothers, NBC, and Microsoft—to
facilitate quick removal of infringing files. (Sup. Indictment 23).

(q)

That Megaupload reportedly received revenues of at least $175
million during its operation. (Sup. Indictment ¶ 114). This
revenue was stored in a variety of accounts located in New
Zealand and Hong Kong. (Sup. Indictment ¶ 115.).

 10

LEGAL CONSIDERATIONS BEARING ON EXTRADITION
19.

The DOJ has asserted the following claims in the United States
against Kim Dotcom: Conspiracy to Commit Racketeering, Conspiracy
to Commit Copyright Infringement, Conspiracy to Commit Money
Laundering, Criminal Copyright Infringement, Aiding and Abetting
Criminal Copyright Infringement, Wire Fraud, and Aiding and Abetting
Wire Fraud. (Sup. Indictment at 1.). It is my understanding that the
basis of charges against Kim Dotcom are based on his role in founding
and operating Megaupload.

20.

It is my understanding that the charges of conspiracy to commit
copyright infringement and wire fraud are of chief importance. I am
instructed that the US-NZ Extradition Treaty limits the scope of the
DOJ's extradition request. Extradition is not available for direct or
primary criminal copyright offenses. Rather, the DOJ must prove a
prima facie case of a conspiracy of or between three or more of an
underlying offense. Here, it appears that the DOJ has identified felony
copyright infringement as the chief underlying crime. However, to
better inform the court, the discussion below also touches upon the
possibility of either wire fraud or money laundering serving as the
underlying crime.

PRINCIPLES OF UNITED STATES CRIMINAL LAW
21.

The United States has filed a criminal indictment against Kim Dotcom
and others in a United States federal court. In federal courts, the
governing law comes from the Constitution of the United States—
which is the supreme law of the United States—as well as from
subordinate federal statutes, and decisions of other United States
federal courts which interpret and apply those statutes and the
constitution. All United States federal courts are bound by decisions of
the Supreme Court of the United States.

22.

In addition to decisions of the Supreme Court, federal trial courts are
also bound by the decisions of their local United States Court of
Appeals. The United States Court of Appeals is divided into 12
different Circuit Courts, which govern different geographical regions.

 11

(There is also a 13th Circuit dedicated to patent cases and other
distinct areas of law, referred to as the Federal Circuit). While many
issues are treated uniformly across the 12 regional circuits of the
United States, some issues of common law have developed distinct
doctrines in different parts of the country.
23.

This case is within the jurisdiction of the Fourth Circuit Court of
Appeals. The Eastern District of Virginia, where the DOJ filed the
indictment, is bound by the precedential decisions handed down by the
United States Court of Appeals for the Fourth Circuit, as well as the
precedential decisions of the Supreme Court of the United States. The
Eastern District of Virginia will also look to other US Appellate Circuits
and Federal District Courts for case law guidance.

24.

Additionally, the indictment itself must meet minimum standards under
United States criminal law. Indictments are required for felony
prosecutions

by

the

Fifth

Amendment

to

the

United

States

Constitution. See U.S. Const. amend. V ("No person shall be held to
answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury"). As indictments are
prerequisites for federal felony prosecutions, defects in the indictment
are cause for the DOJ's case to be dismissed and the defendant to be
set free, even after a trial has been held. See United States v. Daniels,
973 F.2d 272, 276 (4th Cir. 1992) (holding that where an indictment
was defective the conviction must be overturned).
25.

An "indictment must include every essential element of an offense, or
else the indictment is invalid[.]" United States v. Kingrea, 573 F.3d
186, 191 (4th Cir. 2009). An indictment must specifically allege facts
that demonstrate the elements of the crime; an indictment that simply
recites the statutory requirements and conclusions is not sufficient.
See, Id. ("mere reference to the applicable statute does not cure the
defect").

26.

For nearly 200 years, the United States Supreme Court has held that
federal crimes cannot be expanded by decisions of prosecutors or
courts. Federal crimes are “solely creatures of statute.” Liparota v.
United States, 471 U.S. 419, 424 (1985). Charges against a defendant

 12

must be based on a statute. An indictment must allege facts that
satisfy every statutory element. Likewise, a prima facie showing
requires proof of all elements. If the crime is not defined by statute or if
there is a defect in the indictment or proof, the case will be dismissed.
(See In re Int'l Sys. & Controls Corp. Sec. Litig., 693 F.2d 1235 (4th Cir.
1982); U.S.. v. Under Seal (In re Grand Jury Proceedings #5), 401
F.3d 247, 251 (4th Cir. 2005).)
ENFORCEMENT OF CRIMINAL LAWS IN THE UNITED STATES IS
TIGHTLY

CONSTRAINED

AND

CANNOT

BE

EXPANDED

BY

PROSECUTORS
27.

In the Superseding Indictment, the DOJ appears to attempt expansive
definitions of crimes by borrowing concepts of secondary liability from
civil copyright case law. Such attempts are improper because, in the
United States, crimes must be clearly defined by the legislature and
prosecutions are confined within express criminal statutes.

28.

In copyright law in particular, “the deliberation with which Congress . . .
has addressed the problem of copyright infringement for profit, as well
as the precision with which it has chosen to apply criminal penalties in
this area, demonstrates anew the wisdom of leaving it to the
legislature to define crime and prescribe penalties.” Dowling v. United
States, 473 U.S. 207, 228 (1985). The court also stated: “It is the
legislature, not the Court, which is to define a crime”) (quoting United
States v. Wilberger, 5 Wheat. 76 (1820)). “When assessing the reach
of a federal criminal statute, the courts are to “pay close heed to
language, legislative history, and purpose in order strictly to determine
the scope of the conduct the enactment forbids.” Id. at 213.

29.

As Justice Blackmun observed in Dowling, copyright is an area in
which Congress has chosen to tread cautiously, relying "chiefly . . . on
an array of civil remedies to provide copyright holders protection
against infringement," while mandating "studiously graded penalties" in
those instances where Congress has concluded that the deterrent
effect of criminal sanctions are required. Dowling, supra at 221, 225.
"This step-by-step, carefully considered approach is consistent with

 13

Congress' traditional sensitivity to the special concerns implicated by
the copyright laws." Id at 225.
30.

In my opinion, expansive allegations in the Superseding Indictment
cannot support a criminal conviction. As discussed below, the DMCA
is part of the package of civil copyright liability safe harbors provided to
online service providers, not a basis for ciminal copyright liability either
by direct application or indirectly by means of “Wire Fraud” charges.

31.

The DOJ appears to be asserting that an ISP like Megaupload, which
receives copyright take down notices identifying one URL, must search
for and delete all duplicate files used by different users in the cloud
system or be subject to a copyright or fraud claim. In my opinion the
DOJ’s novel theory of copyright or fraud liability is erroneous.

32.

Megaupload reduced operating loads by “deduplication” namely
maintaining only a single copy of a file in its database and generating
multiple links to such file. Each link identified an uploader of the
common file. It is possible for one uploader to have a right to fair use
of a copy of a file, e.g., a purchaser uploading a backup or an
educational organization offering critical commentary, while other
uploaders might have no such fair use right. It is contrary to the
purpose of the DMCA that a fair use right would be violated through a
take-down notice directed at another person’s wrongful use. If such a
violation were to occur, the provider of the take-notice would be
subject to liability under the DMCA (17 U.S.C. § 512(f)).

33.

Similarly, criminal copyright liability cannot be broadened by invoking
civil concepts of secondary copyright infringement directly or under the
guise of the general aiding and abetting statute, 18 U.S.C. § 2. See
Sup. Ind. Counts Four, Five, Six, Seven, and Eight. The United States
legislature previously removed “aiding and abetting” from the copyright
act, evincing an intent to eliminate that form of liability. See Irina D.
Manta, The Puzzle of Criminal Sanctions for Intellectual Property
Infringement, 24 Harv. J.L. & Tech. 469, 481 (2011) (“Several years
later, countering what had been a trend of expansion in the area of
criminal sanctions, the Copyright Act of 1976 eliminated the provisions
for aiding and abetting . . .”).

 14

34.

In doubtful cases of criminal charges, the Supreme Court applies “the
rule of lenity,” which requires a court to interpret ambiguous statutory
schemes in favor of defendants. See Skilling v. United States, 561
U.S. 358, 410 (2010) (“ambiguity concerning the ambit of criminal
statutes should be resolved in favor of lenity”).

35.

It is also worth noting that, at present, there is no law which explicitly
gives rise to felony criminal copyright infringement for the act of video
streaming. Indeed the issue and “gap” has been debated before
Congress but the copyright statute has not been updated to provide for
such criminal liability. See, e.g. S. HRG. 112-922, “Oversight of
Intellectual Property Law Enforcement Efforts” (committee debate over
the need for a law to criminalize streaming copyrighted works on the
internet).

36.

The Superseding Indictment and Record of the Case include a great
number of references to the “DMCA” or Digital Millennum Copyright
Act of 1998, 17 U.S.C. § 512. See, e.g, Superseding Indictment, ¶¶
21-24, 30, 32, 35, 36 and 38.

37.

Among other provisions, the DMCA establishes a “safe harbor” for
online service providers (“OSP”), namely, a statutory defense against
civil infringement claims. See UMG Recordings, Inc. v. Shelter Capital
Partners LLC, 718 F.3d 1006, 1036 (9th Cir. 2013).

38.

The DMCA is only a defense in the civil context because only civil
indirect or secondary liability is possible under the common law.
Common law liability principles cannot be extended to criminal liability,
which must be specifically proscribed by statute. See Dowling v.
United States, 473 U.S. 207, 213-214 (1985). Because there cannot
be common law crimes under United States law, the DMCA further
emphasizes that criminal indirect liability for copyright infringement
does not exist by statute.

39.

In CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 552 (4th Cir.
2004) (“Loopnet”), the court held that lack of a DMCA defense did not
mean that the defendant was civilly liable for infringements that
occurred through its system. The court relied on § 512(l), which states:

 15

“Other defenses not affected. — The failure of a service provider's
conduct to qualify for limitation of liability under this section shall not
bear adversely upon the consideration of a defense by the service
provider that the service provider's conduct is not infringing under this
title or any other defense.”
40.

The Loopnet court held (373 F.3d at 555): “It is clear that Congress
intended the DMCA's safe harbor for ISPs to be a floor, not a ceiling,
of protection. Congress said nothing about whether passive ISPs
should ever be held strictly liable as direct infringers or whether
plaintiffs suing ISPs should instead proceed under contributory
theories. The DMCA has merely added a second step to assessing
infringement liability for Internet service providers, after it is determined
whether they are infringers in the first place under the preexisting
Copyright Act. Thus, the DMCA is irrelevant to determining what
constitutes a prima facie case of copyright infringement.”

41.

In my opinion, allegations of defendant’s failure to maintain a DMCA
policy or defects in a defendant’s DMCA procedures cannot be the
basis of criminal copyright charges. As discussed below, facts
involving the DMCA do not support Copyright or Wire Fraud charges
that are alleged in the Superseding Indictment.

42.

Criminal prosecutions are also implicitly confined by express
permissions in the civil area. An established protection against civil
liability must perforce provide protection from a novel criminal
prosecution. A leading case is Religious Technology Center v. Netcom
On-Line Communications Services, Inc., 907 F. Supp. 1361 (N.D. Cal.
1995), relied on in Loopnet. ( 373 F.3d at 546.)

43.

In Loopnet, a web hosting provider for real estate related content
including photographs, was sued for copyright infringement arising out
of end-user uploaded and distributed photographs. As stated in
Loopnet (373 F.3d at 550): “something more must be shown than
mere ownership of a machine used by others to make illegal copies.
There must be actual infringing conduct with a nexus sufficiently close
and causal to the illegal copying that one could conclude that the
machine owner himself trespassed on the exclusive domain of the

 16

copyright owner. The Netcom court described this nexus as requiring
some aspect of volition or causation. 907 F. Supp. at 1370. Indeed,
counsel for both parties agreed at oral argument that a copy machine
owner who makes the machine available to the public to use for
copying is not, without more, strictly liable under §106 for illegal
copying by a customer. The ISP in this case is an analogue to the
owner of a traditional copying machine whose customers pay a fixed
amount per copy and operate the machine themselves to make
copies. When a customer duplicates an infringing work, the owner of
the copy machine is not considered a direct infringer. Similarly, an ISP
who owns an electronic facility that responds automatically to users'
input is not a direct infringer.”
44.

Criminal infringement is necessarily “direct infringement,” in contrast to
liabilities for “indirect” or “secondary” infringement in the civil context.
Many allegations in the Superseding Indictment appear to attempt to
allege secondary copyright infringement. (E.g., allegations as to
“linking sites” at ¶¶ 11-14.) Such allegations may be relevant in a civil
case alleging secondary infringement but they cannot be a basis for
criminal charges of direct copyright infringement. Congress has never
defined a crime of “secondary copyright infringement.”

45.

The Megaupload cloud service is a dual use technology capable of
substantial non-infringing uses and thus protected by the “Sony
Doctrine.” In Sony Corp. of America v. Universal City Studios, Inc., 464
U.S. 417 (1984) (Sony), the Court held that, because the video tape
recorders at issue were “capable of substantial noninfringing uses,”
manufacturers could not be held liable for indirect infringement. 464
U.S. at 442 (“[T]he sale of copying equipment, like the sale of other
articles of commerce, does not constitute contributory infringement if
the product is widely used for legitimate, unobjectionable purposes.
Indeed, it need merely be capable of substantial noninfringing uses.”).
Id. at 439.

46.

In a later civil case, MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913
(2005), the Court explained that, because many technologies have
both infringing and non-infringing uses, otherwise known as “dual use”
technologies, “mere knowledge of infringing potential or of actual

 17

infringing uses would not be enough [] to subject a distributor to
liability,” and neither would “ordinary acts incident to product
distribution, such as offering customers technical support or product
updates, support liability in themselves.” Id. at 937 (citation omitted).
47.

Under civil copyright law, internet service providers, such as
Megaupload, do not have a duty to investigate potential infringement.
See, e.g. Capitol Records, Inc. v. MP3tunes, LLC, 821 F. Supp. 2d
627, 644 (S.D.N.Y. 2011).

THE IMPORTANCE OF GEOGRAPHICAL LOCATION
48.

An important limitation on enforcement powers of the DOJ is the
principle that the United State Copyright Act has no application outside
of the territorial bounds of the US, and therefore there is neither civil
nor criminal liability under United States law for acts of infringement
taking place outside of US borders.

49.

It is an “‘undisputed axiom that United States copyright law has no
extraterritorial application[.]’” Subafilms, Ltd. v. MGM-Pathe Commc’ns
Co., 24 F.3d 1088, 1093 (9th Cir. 1994) (en banc), cert. denied, 513
U.S. 1001 (1994) (quoting 3 David Nimmer & Melville B., Nimmer on
Copyrights § 12.04[A][3][b], at 12-86 (1991)); see Nintendo of Am., Inc.
v. Aeropower Co. Ltd., 34 F.3d 246, 249 n.5 (4th Cir. 1994) (noting
that the Copyright Act is “generally considered to have no
extraterritorial application”); In re Outsidewall Tire Litig., 2010 WL
2929626, at *8 (E.D. Va. July 21, 2010) (citing with approval the Ninth
Circuit’s extraterritoriality analysis in Subafilms).

50.

“For the Copyright Act to apply, ‘at least one alleged infringement must
be completed entirely within the United States.’” Elmo Shropshire v.
Canning, No. 10-CV-01941-LHK, 2011 WL 90136, at *3 (N.D. Cal.
Jan. 11, 2011) (quoting Los Angeles News Serv. v. Reuters Television
Int’l, Ltd., 149 F.3d 987, 990-91 (9th Cir. 1998)); accord Rundquist v.
Vapiano SE, 798 F. Supp. 2d 102, 126 (D.D.C. 2011).

51.

The

Superseding

Indictment

does

discuss

the

existence

of

Megaupload servers in the United States, Sup. Ind. ¶¶ 26, 39, 40. But
the mere presence of data servers in Virginia does not establish that

 18

direct infringement took place there. See, e.g., CoStar Group, Inc. v.
LoopNet, Inc., 373 F.3d 544, 549-50 (4th Cir. 2004) (holding that direct
infringement under the civil standard requires more than “mere
ownership of a machine used by others to make illegal copies” and
that there “must be actual infringing conduct[.]”); Cartoon Network LP,
LLLP v. CSC Holdings, Inc., 536 F.3d 121, 131-32 (2d Cir. 2008)
(direct civil infringement requires “volitional conduct,” not mere
ownership of device used by others to infringe).
52.

The Superseding Indictment never states that any specific user, much
less any of the criminal defendants, chose to upload or download any
specific infringing work from within the United States. See, e.g. Sup.
Ind. ¶¶ 30, 33-38, 55, 73(k), 73(v), 73(y), 73(ee), 73(uu), 73(fff),
73(qqq), 73(www), 73(xxx), 73(yyy), 73(aaaa), 73(gggg), 73(aaaaa),
73(bbbbb), 73(jjjjj), 73(kkkkk), 73(rrrrr). Although facts in the Record of
the Case identify unindicted co-conspirators as residing in the Eastern
District of Virginia, specific allegations of criminal conduct are lacking.
(See e.g., ¶¶ 50, 51, 57, 61, 64, 66, 67, 69 and 70 of the Record of the
Case.

THE UNITED STATES HAS FAILED TO PROVE A PRIMA FACIE CASE OF
DIRECT INFRINGEMENT UNDER CIVIL COPYRIGHT LAW
53.

In order to establish a prima facie case of civil copyright infringement,
a plaintiff must prove: (1) that he owns a valid copyright, and (2) that
the defendant engaged in unauthorized copying. Nelson-Salabes, Inc.
v. Morningside Dev., Inc., 284 F.3d 505, 513 (4th Cir. 2002).

54.

Requirements of specificity in the civil context were set forth in Energy
Intelligence Group, Inc. v. Jefferies, LLC, 2015 U.S. Dist. LEXIS 43230
(S.D.N.Y. 2015), where the court stated, in a claim for copyright
infringement:
"Rule 8 requires that the particular infringing acts be set out
with some specificity." Kelly v. L.L. Cool J., 145 F.R.D. 32, 36,
n.3 (S.D.N.Y.1992), aff'd 23 F.3d 398 (2d Cir. 1994), cert.
denied, 513 U.S. 950, 115 S. Ct. 365, 130 L. Ed. 2d 318
(1994)” (internal citations omitted).

 19

55.

Under the Kelly court's four-prong test, a claim of copyright
infringement must allege (Jacobs v. Carnival Corp., 2009 U.S. Dist.
LEXIS 31374, 2009 WL 856637 (S.D.N.Y. Mar. 25, 2009):
"(1) which specific original works are the subject of the
copyright claim, (2) that plaintiff owns the copyrights in those
works, (3) that the copyrights have been registered in
accordance with the statute, and (4) by what acts and during
what time the defendant infringed the copyright."

56.

In my opinion, there is a failure of proof of claims of direct infringement
against respondents, in the light of constraints on civil claims
discussed above. Relevant allegations fail to prove a case under the
civil standards set forth in Loopnet, supra. There is no connection
between “specific original works” and allegations of wrongdoing that
would show “by what acts and during what time the defendant
infringed the copyright.” What is alleged is “mere ownership of a
machine used by others to make illegal copies.” Absent are allegations
of “actual infringing conduct with a nexus sufficiently close and causal
to the illegal copying that one could conclude that the machine owner
himself trespassed on the exclusive domain of the copyright owner.”
(Para. 40, above.) Liability cannot be “based on a failure to take
affirmative steps to prevent infringement, if the device otherwise was
capable of substantial noninfringing uses.” (Para. 42.) Respondents do
not have a duty to investigate potential infringement.” (Para. 44.) The
failure to allege a prima facie case under the civil case law is fatal to
the Government’s claims. See Kelly, supra, 145 F.R.D. at 39 (“conduct
that does not support a civil action for infringement cannot constitute
criminal conduct under 17 U.S.C. § 506(a).”

57.

Megaupload cloud users, like those in Loopnet, used automated cloud
storage processes, agreed to Terms of Use, and uploaded and shared
digital materials with other users on a dual use technology platform. If
there were no user-uploaded content then the Megaupload cloud
storage systems would be devoid of content. If no user made use of a
given URL to share such uploaded content then no online distribution
would ever occur. Strip away the user-controlled conduct and content
and the voluminous Government allegations disappear.

 20

58.

Megaupload cloud storage services, handling at one point 4% of all
Internet traffic in which automated server data transactions occur with
breathtaking volume and speed, are a prototypical example of an ISP’s
lack of volitional control over user infringements. This type of passive
hosting scenario led the Fourth Circuit Court of Appeals in Loopnet to
conclude 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.

59.

But, as discussed below, the criminal allegations give the Megaupload
defendants even broader protections than the civil Loopnet defendant.
The crime of felony copyright infringement requires the DOJ to
demonstrate that the defendants "willfully" undertook the infringing
acts on a work by work basis under the required elements of the
statute. The criminal copyright statute itself emphasizes the high
threshold of evidence needed to make out a prima facie criminal
copyright

claim,

namely,

that

“[e]vidence

of

reproducing

and

distributing copyrighted works does not, by itself, establish willfulness.”
See 17 U.S.C. § 506(a)(2).
THE UNITED STATES HAS FAILED TO PROVE A PRIMA FACIE CASE
UNDER CRIMINAL COPYRIGHT LAW
60.

I am aware that Judge Harvey in New Zealand has stated that all of
the extradition charges “hang upon the establishment of criminal
copyright infringement.” Dotcom et al v. US, DC NSD (May 29, 2012)
at ¶ 68.

61.

As a summary of my opinion: the DOJ fails to show direct criminal
copyright infringement on the part of Megaupload personnel or on the
part of Megaupload cloud storage users. The allegations in the
Superseding Indictment and the Record of the Case do not match up
to all of the elements of offenses. Importantly, there is no showing that
any specific Megaupload representative or third-party user had the
requisite mens rea to willfully violate copyright law. There is an even
more fatal failure to show that Megaupload personnel agreed with a
third party user to commit such violations. An agreement requires

 21

communications
discussions

between

among

defendants

Megaupload

and

the

personnel

user,
and

a

not

just

general

“environment of infringement.” Attempts to juxtapose pieces of
allegations do not succeed in making even a single whole, unified
criminal charge.
62.

Criminal copyright infringement is codified at 17 U.S.C.§ 506(a) and
has the following requirements:
“(1)

In

general.--Any

person

who

willfully

infringes

a

copyright shall be punished as provided under section
2319 of title 18, if the infringement was committed-(A)

for purposes of commercial advantage or private
financial gain;

(B)

by the reproduction or distribution, including by
electronic means, during any 180-day period, of 1
or more copies or phonorecords of 1 or more
copyrighted works, which have a total retail value
of more than $1,000; or

(C)

by the distribution of a work being prepared for
commercial distribution, by making it available on
a computer network accessible to members of the
public, if such person knew or should have known
that the work was intended for commercial
distribution.”

63.

The mens rea standard — "willfully infringes a copyright" — requires a
stronger showing in a criminal copyright claim than in a civil claim. See
Kelly, supra, 145 F.R.D. at 39 (“conduct that does not support a civil
action for infringement cannot constitute criminal conduct under 17
U.S.C. § 506(a). Nimmer on Copyright, § 15.01.”) aff'd sub nom. Kelly
v. L.L. Cool J, 23 F.3d 398 (2d Cir. 1994); see also Berry v. Hawaii
Exp. Serv., Inc., 2006 WL 505319, at *7 (D. Haw. Feb. 27, 2006).

64.

The copyright statute itself indicates the higher level of knowledge and
intent in a “willfulness” mental state. “Evidence of reproducing and

 22

distributing copyrighted works does not, by itself, establish willfulness.”
See 17 U.S.C. § 506(a)(2).
65.

Thus, 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
takedown 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.” United States v. Liu, 731 F.3d 982, 990 (9th Cir.
2013). Proof of the “defendant's specific intent to violate someone's
copyright is required.” Id. at 989-90.
66.

Liu further holds that a general intent to copy is insufficient for criminal
copyright liability. Id. at 991. If 17 U.S.C. § 506(a)’s willfulness
requirement were read “to mean only an intent to copy, there would be
no meaningful distinction between civil and criminal liability in the vast
majority of cases.” Id. “[W]illful infringement requires a showing of
specific intent to violate copyright law.” BC Tech., Inc. v. Ensil Int’l
Corp., 464 Fed. Appx. 689, 696 (10th Cir. 2012). For example, vague
allegations

borrowed

from

civil

copyright

case

law

regarding

Megaupload’s “rewards program” does not arise to “willfulness” under
the criminal standard even if it can be shown that such a policy
generally increased infringing use of the site.
67.

Indeed, a defendant’s erroneous belief that copying was lawful is
sufficient to avoid criminal liability. In 1997, the Registrar of Copyrights
testified

before

Congress

and

(http://www.copyright.gov/docs/2265_stat.html ):
“The courts have held that it is not enough for the
defendant in a criminal case to have had an intent to
copy the work; he must have acted with knowledge that
his conduct constituted copyright infringement. See,
e.g., United States v. Cross, 816 F.2d 297, 300 (7th Cir.
1987) and United States v. Moran, 757 F. Supp. 1046
(D. Neb. 1991). In Cross, the Seventh Circuit upheld the

stated

 23

following jury instruction for determining willfulness
under the criminal provision of the Copyright Act:
‘[W]illfully’ as used in the statute means the act was
committed by a defendant voluntarily, with knowledge
that it was prohibited by law, and with the purpose of
violating the law, and not by mistake, accident or in
good faith. 816 F.2d at 300.
In Moran, the defendant was charged with criminal
infringement for his practice of making backup copies of
the videotapes he purchased for his video rental store.
The court held that the “willful” element of criminal
copyright infringement was similar to that in federal
criminal tax statutes, and thus requires a “voluntary,
intentional violation of a known legal duty.” Id. at 1049
(citing U.S. v. Cheek, 111 S.Ct. 604, 610 (1991)). The
court therefore held that because the defendant
believed, albeit incorrectly, that he had a right to make
such copies, he could not be convicted of criminal
infringement. Id. at 1051-52.”
68.

In my opinion, proof of charges of both Criminal Copyright
Infringement and also Conspiracy to commit such crimes must identify
specific copyrighted works on a work by work, link by link basis, and
describe the who, what, when, where, why, and how to meet all the
elements for each such instance and to examine fair use, amongst
other things. The “willfulness” requirement means that a person must
have had the specific intent to commit copyright infringement as to
each individual work.

69.

See also Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 34 (2d Cir.
2012) (requiring in the civil context assessment of knowledge level of
defendant as regarded each and every file alleged to be part of
defendant’s mass infringement); Viacom Int’l Inc. v. YouTube, Inc., 940
F. Supp. 2d 110, 115-123 (S.D.N.Y. 2013) (ruling that plaintiffs had no
“clip-by-clip” evidence to prove knowledge of infringement for any of
the 63,060 video clips-in-suit)

 24

70.

In my opinion, during the applicable period of time, no individual
Megaupload defendant is shown to have so “willfully” or criminally
copied or distributed a copyrighted work.

71.

Counts Five through Eight charge “Criminal Copyright Infringement By
Electronic

Means

&

Aiding

and

Abetting

Criminal

Copyright

Infringement.” It appears that criminal infringements were alleged
committed by unnamed Megaupload cloud storage users and that
respondents are charged with “Aiding and Abetting.” Under United
States law, aiding and abetting is a theory of accomplice liability for
those who participate in crimes. Thus a defendant who is charged with
“aiding and abetting criminal copyright infringement,” has only been
charged with the crime of copyright infringement, and not with any
other crime or with extraditable conspiracy.
72.

As noted above (para. 33), charges of aiding and abetting are facially
improper under the reasoning in Dowling and its progeny as Congress
removed “aiding and abetting” from the copyright statute.

73.

Under 18 U.S.C. § 2 (a), whoever aids, abets, counsels, commands,
induces, or procures the commission of an offense against the United
States is punishable as a principal. Under 18 U.S.C. § 2 (b), Whoever
willfully causes an act to be done which if directly performed by him or
another would be an offense against the United States, is punishable
as a principal. In order to make out a prima facie case against a
defendant for aiding and abetting crime, the Government must
produce sufficient evidence to show that the defendant knowingly
associated himself with and participated in the criminal venture. See
United States v. Winstead, 708 F.2d 925, 927 (4th Cir. 1983) (citing
Nye & Nissen v. United States, 336 U.S. 613, 619-20, 69 S. Ct. 766,
93 L. Ed. 919 (1949); United States v. Beck, 615 F.2d 441, 448 (7th
Cir. 1980); United States v. Pearlstein, 576 F.2d 531, 546 (3d Cir.
1978); United States v. Di Stefano, 555 F.2d 1094, 1103 (2d Cir.
1977)). In order to prove the element of association, the Government
must show that the defendant shared in the principal's criminal intent.
See id. (citing Beck, 615 F.2d at 449). As the Fourth Circuit stated in
Winstead, this requires evidence that the defendant be aware of the
principal's criminal intent and the unlawful nature of his acts. See id.

 25

(citing Pearlstein, 576 F.2d at 546). Evidence that the defendant
merely brought about the arrangement that made the criminal acts of
the principal possible does not alone support a conclusion that the
defendant was aware of the criminal nature of defendant's acts. See
id. (citing United States v. Belt, 574 F.2d 1234, 1240 (5th Cir. 1978)).
(United States v. Ecklin, 837 F. Supp. 2d 589, 591-92 (E.D. Va. 2011)
74.

Aiding and abetting requires a showing of “double wilfulness,” which is
lacking in the Superceding Indictment and ROC. A vague charge of
“making available” a copyrighted work under a theory of “Aiding and
Abetting Criminal Copyright Infringement,” is insufficient. In my opinion
the government has failed to allege sufficient facts that the
Megaupload defendants shared in any alleged infringer’s criminal
willful intent. Gestalt allegations that the Megaupload cloud storage
system brought about the arrangment that made the vague criminal
acts of the alleged infringers possible is insufficient “willfulness” as a
matter of law. As discussed above, Megaupload did not exercise
volitional control over user uploads, link sharing, and downloads.

75.

The Supreme Court of the United States has stated that the aiding and
abetting statute converts an accomplice into a principal, but that aiding
and abetting is neither a separate crime nor is it relevant to the distinct
crime of conspiracy. See Pereira v. United States, 347 U.S. 1, 11
(1954) (“Aiding, abetting, and counseling are not terms which
presuppose the existence of an agreement. Those terms . . . mak[e]
the defendant a principal when he consciously shares in a criminal act,
regardless of the existence of a conspiracy.”) (emphasis added).
Therefore, allegations that defendants aided or abetted a crime of
copyright infringement do not amount to an extraditable offense. The
crime, if it exists, must be specifically shown.

THE UNITED STATES HAS FAILED TO PROVE A PRIMA FACIE CASE
UNDER THE LAW OF CONSPIRACY
76.

Charges of Conspiracy to Commit Copyright Infringement are alleged
in Count Two of the Superseding Indictment. Defects in charges of
Criminal Copyright Infringment (Counts Four through Eight) re-appear
in doubled form in Count Two.

 26

77.

The Fourth Circuit has stated that a conspiracy charge contains three
elements: (1) "an agreement between two or more persons to act
together in committing an offense," (2) "an overt act in furtherance of
the conspiracy," and (3) "[t]here must be some showing that the
defendant knew the conspiracy's purpose and took some action
indicating his participation." United States v. Chorman, 910 F.2d 102,
109 (4th Cir. 1990). See United States v. Kingrea, 573 F.3d 186, 193
(4th Cir. 2009) (dismissing indictment that "failed to state an offense
against the United States as the object of the conspiracy.").

78.

The DOJ must show a union of criminally willful conduct on the part of
an actual infringer and criminally willful conduct on the part of a
conspirator. Evidence that Megaupload acted willfully is insufficient if it
does not unite with underlying direct infringements that are also willful.
See 17 U.S.C. § 506(a); United States v. Mekjian, 505 F.2d 1320,
1324 (5th Cir. 1975) (dismissing indictment that failed to allege
willfulness); Med. Supply Chain, Inc. v. Neoforma, Inc., 419 F. Supp.
2d 1316, 1328 (D. Kan. 2006) (civil complaint). “Even if civil liability
has been established, without the requisite mens rea it does not matter
how many unauthorized copies or phonorecords have been made or
distributed: No criminal violation has occurred.” House Report,
Copyright Felony Act, H.R. Rep. No. 997, 102nd Cong., 2nd Sess.
1992, 1992 U.S.C.C.A.N. 3569, P.L. 102-561. See Kelly, supra, 145
F.R.D. at 39 (“conduct that does not support a civil action for
infringement cannot constitute criminal conduct under 17 U.S.C. §
506(a).”)

79.

The required agreement between conspirators need not take a
particular form, however, there must be some genuine meeting of the
minds as to commission of a crime: merely engaging in a business
transaction is not sufficient to charge the crime of conspiracy. As one
court explained, ordinary retail businesses are not engaged in a
conspiracy with their customers merely because they engage in repeat
or standardized transactions. See United States v. Colon, 549 F.3d
565, 567-68 (7th Cir. 2008) (finding no conspiracy because “[i]f you
buy from Wal-Mart your transactions will be highly regular and utterly

 27

standardized, but there will be no mutual trust suggestive of a
relationship other than that of buyer and seller.”).
80.

United States v. Hickman, 626 F.3d 756 (4th Cir. 2010), a decision by
the Fourth Circuit Court of Appeals is particularly instructive. In that
case, the court was asked to decide if a store that sold thousands of
glass vials was engaged in a conspiracy to distribute heroin, since it
was well known that such glass vials were used primarily to package
heroin for sale. Id. at 767-73. The Fourth Circuit explained that merely
selling the vials was not sufficient to demonstrate the crime of
conspiracy without something more. Id. The court would have required
that the defendant possess explicit knowledge of specific plans to
distribute heroin in order to be convicted of conspiracy. Id. This is
consistent with other Fourth Circuit decisions which generally require a
"showing that the defendant knew the conspiracy's purpose and took
some action indicating his participation." Chorman, 910 F.2d at 109.

81.

As mentioned above, a member of the conspiracy must undertake
some "overt act" which furthers the underlying offense of the
conspiracy. Chorman, 910 F.2d at 109. Thus, in order to properly state
a claim for conspiracy to commit felony copyright infringement, there
must be an agreement between two individuals to commit that crime,
and then one of the individuals, who is a party to the agreement, must
commit an act in furtherance of that crime.

82.

As discussed above, infringing acts are alleged to have been
committed by unnamed Megaupload users. A crime of conspiracy
requires an agreement with criminal infringers. No such agreement is
shown.

83.

Megaupload had no reliable means of detecting which uploads were
authorized uses, which were fair uses and which were infringing uses
in the United States or in some other country. No criminal statute or
legal decision imposes a duty on an online services provider to employ
such means of detection. In my opinion, the criminal law may not be
used to impose a duty to employ such means of detection.

 28

84.

Evidence in the Record of the Case fails to overcome the defects. For
example, in paragraph 73y of the Superseding Indictment, the DOJ
describes a conversation between two Megaupload employees
regarding a Megaupload user who allegedly stored infringing content
on

Megaupload.

However,

there

is

no

allegation

of

direct

communication with the user, and no reason to believe that the
Megaupload employees entered into a relationship with the user
beyond a series of retail transactions regarding cloud storage space
on the Megaupload leased servers.
85.

The allegations relating to the “Uploader Rewards” program similarly
describe a series of retail transactions. Paragraph 73jj describes
standardized payments based upon regular uploads, yet the
paragraph contains no further details and no allegation as to how the
individuals involved were coordinating in a manner beyond ordinary
commercial transactions.

86.

Paragraphs 73qq, 73uu, 73ppp, 73qqq, 73www, 73xxx, 73yyy,
73aaaa, and 73gggg of the indictment all likewise describe payments
going to or from Megaupload but fail to allege any agreement to
infringe. The fact that the payments were made repeatedly or at
regular intervals does not change this analysis. As the courts have
explained, “utterly regular and highly standardized” payments do not
create an inference of conspiracy. United States v. Colon, 549 F.3d
565, 567-68 (7th Cir. 2008).

THE UNITED STATES HAS FAILED TO PROVE A PRIMA FACIE CASE OF
WIRE FRAUD
87.

Counts Nine through Thirteen of the Superseding Indictment charge
respondents with “Fraud By Wire & Aiding and Abetting of Fraud by
Wire.” For reasons discussed above, “Aiding & Abetting” adds nothing
to the charges.

88.

In my opinion, the DOJ is improperly attempting to use a “wire fraud”
theory to criminalize new categories of conduct without the required
Congressional authorization.

 29

89.

In United States v. LaMacchia, 871 F.Supp. 535 (D. Mass. 1994), the
court relied on Dowling, supra, to prohibit prosecution of a “bulletin
board operator” (for an online bulletin board intended for students)
charged with wire fraud by the DOJ. In that case, the DOJ attempted a
similar kind of “end run” around the copyright statute.

90.

Allegations here revolve around Megaupload’s procedures for
implementing a civil copyright safe harbor statute, part of the DMCA
(17 U.S.C. § 512). The DMCA specifies procedures for removing
access to infringing files by defining a “notice” of infringing materials
that is sent by copyright owners to website operators and resulting
“takedowns” of access and/or materials. Access to the DMCA civil safe
harbor requires a “reasonable” take down policy, not a perfect one.
Although Congress provided civil relief for certain injured parties who
are

presented

with

take-down

notices

that

contain

material

misrepresentations, there is no criminal liability. Any potential civil
liability for misrepresentations in take down notices under 512(f) would
be against the parties providing take down notices. Congress did not
codify misrepresentation claims against Online Service Providers who
make DMCA errors. A criminal theory that attempts to turn unfulfilled
promises of DMCA compliance into a Wire Fraud claim is contrary to
the plain intentions and language of the statute. In addition, causation
and damages allegedly resulting from the alleged Wire Fraud are
shown in only the most general and conclusory way that are clearly
insufficient.
91.

Alleged frauds revolve around Megaupload’s practices under the
DMCA and around an “Abuse Tool” Megaupload provided to copyright
owners or agents who wanted to deliver to Megaupload DMCA notices
of infringing materials on the Megaupload site and automatically
disable access to such materials. It is alleged that Megaupload made
misrepresentations in connection with the Abuse Tool, promising to
delete access to referenced materials while only deleting the
referenced URLs and without deleting all other URLs in the database
that pointed to such materials. It is further alleged that the Abuse Tool
did not operate as represented, that deletions were delayed and that

 30

the site promised to terminate repeat infringers but failed to do so.
Sup. Indict. ¶ 102-104.
92.

As mentioned above, the DMCA serves to explicitly limit the copyright
liability of Internet service providers and to provide a “safe harbor” from
copyright claims. See 17 U.S.C.A. § 512 (“A service provider shall not
be liable . . .”). If an online service provider like Megaupload is noncompliant the result is loss of the civil safe harbor defense not a
criminal fraud.

93.

In United States v. Aleynikov, 676 F.3d 71, 78 (2d Cir. 2012), the
appellate court would not allow distribution of copyrighted computer
code to be charged as a crime under the National Stolen Property Act;
once again the proper recourse would have been to charge the
defendant under the copyright statute, and an attempt to avoid that
statute was barred. Likewise, in United States v. Brooks, 945 F. Supp.
830, 834 (E.D. Pa. 1996), the court held that a statute which
criminalized

making

false

statements

to

the

United

States

Government, did not apply to false statements made to the copyright
office, where that was separately punished under the copyright act.
94.

It is, therefore, my opinion that the general criminal statute of wire
fraud cannot take the place of the copyright act or alleged broken
DMCA compliance policies.

95.

The crime of wire fraud has two elements: the DOJ “must show that
the defendant (1) devised or intended to devise a scheme to defraud
and (2) used the mail or wire communications in furtherance of the
scheme.” United States v. Wynn, 684 F.3d 473, 477 (4th Cir. 2012).
The offense is also defined as: “wronging one in his property rights by
dishonest methods or schemes and usually signify[ing] the deprivation
of something of value by trick, deceit, chicane, or overreaching.” Id.

96.

Under Fourth Circuit precedent, an actionable deprivation requires
“convergence” between the person who is deceived and the person
whose property is obtained. See Lifschultz Fast Freight, Inc. v. Consol.
Freightways Corp. of Delaware, 805 F. Supp. 1277, 1294 (D.S.C.
1992) aff'd, 998 F.2d 1009 (4th Cir. 1993) (“the better reasoned rule is

 31

to require a convergence of the identity of the injured and the
deceived.”) This means that “the intent must be to obtain money or
property from the one who is deceived.” United States v. Lew, 875
F.2d 219, 221 (9th Cir. 1989). The instant charges fail the
convergence test.
97.

It is alleged that Megaupload received “advertising revenue as a result
of the continued availability of files,” while never stating that the
copyright holders themselves made any pay outs. Sup. Indict. ¶ 103.
Thus, there is no allegation that the advertisers were ever lied to,
deceived or misled; in other words, the party deceived and the party
that lost property were two completely different individuals.

98.

It is also alleged that Megaupload received money from users who
purchased premium subscriptions. Sup. Indict. ¶ 103. However, as
with the advertisers, there is no indication that the users were
deceived or misled in any way. .

99.

Moreover, the DOJ must look at the monies actually received when
charging the crime of wire fraud, and cannot look to any “intangible
right” that may belong to the copyright holder. United States courts
have explained that intangible rights cannot form the basis of a wire
fraud charge. See United States v. Hilling, 891 F.2d 205, 208 (9th Cir.
1988) (reversing a mail fraud conviction based on intangible rights).
Nor is a “license” a recognized property right. See United States v.
Schwartz, 924 F.2d 410, 418 (2d Cir. 1991) (overturning wire fraud
conviction because “[t]he [] licenses given appellants were merely the
expression of its regulatory imprimatur, and they had no other effect as
‘property’”).

100.

In sum, the DOJ only alleges that one party was deceived: the
copyright holders. Sup. Indict. ¶ 102. However, that party cannot lay a
claim to a recognized property right that Megaupload is alleged to
have taken; at best the rights claimed would be the right to license
their works, or similar intangible rights which cannot form the basis of a
wire fraud conviction. See Hilling, 891 F.2d at 208; Schwartz, 924 F.2d
at 418.

 32

101.

Another defect in the DOJ approach is that it is contrary to the DMCA.
The Fourth Circuit has repeatedly upheld the principal of statutory
interpretation which holds that courts “must give effect to every
provision and word in a statute and avoid any interpretation that may
render statutory terms meaningless[.]” Scott v. United States, 328 F.3d
132, 139 (4th Cir. 2003). Here, in order to give proper effect to the
DMCA, the wire fraud statute cannot be interpreted to criminalize
Megaupload’s conduct.

102.

The DMCA also expressly limits liability when an internet service
provider “reasonably implement[s]” a policy to terminate “repeat
infringers[.]” 17 U.S.C.A. § 512.

103.

While the statute does not define “reasonably implement” courts have
found a service provider to act reasonably “if it has a working
notification system, a procedure for dealing with DMCA-compliant
notifications, and if it does not actively prevent copyright owners from
collecting information needed to issue such notifications.” Perfect 10,
Inc. v. CCBill LLC, 488 F.3d 1102, 1109 (9th Cir. 2007).

104.

The DOJ does not allege that Megaupload had no policy at all, nor
does the DOJ allege that Megaupload “actively prevent[ed] copyright
owners from collecting information[.]” Instead, the DOJ charges a
much lower standard: that Megaupload failed to terminate 100% of all
repeat infringers, Sup. Indict. ¶ 102, and moreover, that this failure, in
the face of Megaupload’s stated policy, was a misrepresentation
sufficient to sustain a charge of wire fraud. Id.

105.

The purpose of the DMCA is to prevent liability where a defendant has
stated a policy and reasonably implemented it—not where a defendant
has failed to terminate each and every repeat infringer. Indeed, the
statute recognizes that service providers are not required to terminate
all repeat infringers in order to comply with the DMCA (17 U.S.C. §
512(I)(1)(A)) or to remove their posted content. See e.g. Perfect 10,
Inc. v. Giganews, Inc., 2014 WL 8628034, at *9 (C.D. Cal. Nov. 14,
2014) (“Giganews had no obligation to indiscriminately remove every
post a repeat infringer ever posted and Perfect 10 may not shift its

 33

burden of policing copyright infringement to Giganews in the guise of a
claim for direct infringement.”).
106.

Were the DOJ able to simply charge defendants with a separate crime
(in this case wire fraud) then the liability safe harbor becomes
meaningless, and Scott v. United States is thus violated. As a result, it
is improper to interpret the wire fraud statute as criminalizing
Megaupload’s actions, and the proper interpretation is to give effect to
the DMCA’s stated safe harbor provisions.

107.

The DOJ appears to be asserting that an online operator who receives
copyright take down notices identifying one URL must search for and
delete all duplicate files in the system or be subject to a copyright or
fraud claim. In my opinion the DOJ’s theory of copyright or fraud
liability is erroneous.

108.

Megaupload reduced operating loads by “deduplication,” namely
maintaining only a single copy of a file in its database and generating
multiple pointers to such file. Each pointer identified an uploader of the
common file. It is possible for one uploader to have a right to fair use
of a copy of a file, e.g., a purchaser uploading a backup or an
educational organization offering critical commentary, while other
uploaders might have no such fair use right. It is contrary to the
purpose of the DMCA that a fair use right would be violated though a
take-down notice directed at another person’s wrongful use. If such a
violation were to occur, the provider of the take-notice would be
subject to liability under the DMCA (17 U.S.C. § 512(f)).

109.

Such an approach can lead to mass DMCA 512(f) misrepresentation
claims against the DMCA noticing parties.

110.

The DOJ’s charges would compel Online Service Providers to take
down all duplicates of a file for which notice is sent without the benefit
of analysis of all the other varying uses, users, and contexts. The
sender of the notice would be ignorant of all contexts and would not
know of users who had purchased the work and had a right to make
and store a copy or users who had fair use rights or authorization. For
example news, archive, and educational institutions may have broader

 34

rights to use certain copyrighted works than other organizations. In
Lenz v. Universal Music Corp., No. 5:07-cv-03783, slip op. at 5 (N.D.
Cal. Aug. 20, 2008) the court squarely rejected the DOJ approach and
held as follows:
“[I]n order for a copyright owner to proceed under the DMCA
with "a good faith belief that use of the material in the manner
complained of is not authorized by the copyright owner, its
agent, or the law," the owner must evaluate whether the
material makes fair use of the copyright. An allegation that a
copyright owner acted in bad faith by issuing a takedown
notice without proper consideration of the fair use doctrine thus
is sufficient to state a misrepresentation claim pursuant to
Section 512(f) of the DMCA. Id. at 6.”
THE UNITED STATES HAS FAILED TO SHOW ANY CONSPIRACY TO
COMMIT RACKETEERING OR CONSPIRACY TO COMMIT MONEY
LAUNDERING
111.

Counts One and Three allege Conspiracy to Commit Racketeering
under 18 U.S.C. § 1962(d) and Conspiracy to Commit Money
Laundering under 18 U.S. C. 1956(h). Each of these Counts requires a
predicate offense that is lacking here.

112.

Under 18 U.S.C. § 1962(d), it is unlawful to "conspire to violate" RICO.
RICO makes it unlawful "for any person employed by or associated
with any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise's affairs through a pattern
of racketeering activity." 18 U.S.C. § 1962(c). A "pattern of
racketeering activity," consists of "at least two acts of racketeering
activity" occurring within a ten-year period, 18 U.S.C. § 1961(5), that
are related and "amount to or pose a threat of continued criminal
activity." H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239, 109 S. Ct.
2893, 106 L. Ed. 2d 195 (1989). “To properly allege the predicate acts,
plaintiff must specify the ‘who, what, where, and when’ of each
purported act.’ ” Med. Supply Chain, Inc. v. Neoforma, Inc., 419 F.

 35

Supp. 2d 1316, 1329 (D. Kans. 2006). See also See United States v.
Baker, 598 Fed. Appx. 165, 172 (4th Cir. 2015).
113.

The money laundering statutes criminalize either the concealing or
trafficking of funds which represent the proceeds of criminal activity.
See 18 U.S.C. §§ 1956, 1957. The government must prove that a
separate crime occurred first, and that this separate crime generated
proceeds which were later concealed or trafficked. See, e.g. United
States v. Mankarious, 151 F.3d 694, 702 (7th Cir. 1998) (“The
government must prove that the defendant conducted a financial
transaction which in fact involves the proceeds of specified unlawful
activity”).

CONCLUSION
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

 36

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,

 37

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.

I DECLARE under penalty of perjury under the laws of the State of
Massachusetts and the United States of America that the foregoing is true and
correct.
EXECUTED this 14th day of September 2015, at

Lawrence Lessig