In 2014-2015, Amsterdam & Partners LLP acted on behalf of the New Zealand-based Internet entrepreneur Kim Dotcom, who is facing an extradition case to the United States based on his ownership of the former website Megaupload.
As argued in a White Paper authored by Amsterdam & Partners LLP, the US Department of Justice has no basis to bring this claim against Mr. Dotcom, a German-Finnish national who has never been visited the United States and has never done business in the country.
The criminal prosecution of Megaupload and Kim Dotcom is purportedly the “largest copyright case in history,” involving tens of millions of users around the world, and yet it is founded on highly dubious legal principles and apparently propelled by the White House’s desire to mollify the motion picture industry in exchange for campaign contributions and political support.
The U.S. government’s case against Megaupload is grounded in a theory of criminal secondary copyright infringement. In other words, the prosecution seeks to hold Megaupload and its executives criminally responsible for alleged infringement by the company’s third-party cloud storage users. The problem with the theory, however, is that secondary copyright infringement is not – nor has it ever been – a crime in the United States.
The federal courts lack any power to criminalize secondary copyright infringement; the U.S. Congress alone has such authority, and it has not done so. As such, the Megaupload prosecution is not only baseless, it is unprecedented. Although the U.S. government has previously shut down foreign websites engaged in direct infringement, such as the sale or distribution of infringing material, never before has it brought criminal charges against a cloud file storage service because of the conduct of its users. Thus, the Megaupload case is the first time the government has taken down a foreign website – destroying the company and seizing all of the assets of its owners (and the data of its users), without so much as a hearing – based on a crime that does not exist.