The following post first appeared on the Center for the Protection of Intellectual Property (CPIP) blog, and it is reposted with permission here.
After countless delays, the extradition hearing against Kim Dotcom began yesterday in New Zealand. Dotcom has been indicted on several charges, including criminal copyright infringement, racketeering, money laundering, and wire fraud, in connection with his notorious Megaupload website. He allegedly reproduced and distributed large amounts of copyrighted works, including movies, songs, TV programs, and computer software. In anticipation of the hearing, we’ve heard much opinion and speculation about the case against Dotcom.
Most recently, Harvard law professor Larry Lessig wrote a puzzling affidavit in which he argues that the superseding indictment and the summary of evidence against Dotcom are insufficient to establish a prima facie case of felony copyright infringement. Lessig has a long history of being on the losing end of things with his novel arguments concerning copyright law, and this affidavit appears to continue that trend. Lessig argues that “the DOJ fails to show direct criminal copyright infringement on the part of Megaupload personnel” and that “there is no showing that any specific Megaupload representative . . . had the requisite mens rea to willfully violate copyright law.”
Lessig is wrong: The superseding indictment and the summary of evidence allege direct criminal copyright infringement by Dotcom and his co-defendants. Looking at just two examples from the indictment, Count Four relates to the pre-release movie “Taken” that was uploaded to Megaupload by one of Dotcom’s co-defendants, and Count Eight concerns the scraping of YouTube done by the co-defendants at Dotcom’s command. There are smoking gun emails establishing that these crimes were done willfully. Remarkably, Lessig makes no mention whatsoever of the movie “Taken,” the scraping of YouTube, or the emails. It’s time to get real about Kim Dotcom.
Sufficiency of the Indictment
As a preliminary matter, it’s important to understand the procedural posture of this case. The case isn’t at trial, and it hasn’t even reached discovery yet—this is merely an indictment. Under federal law, a criminal indictment has two primary purposes: (1) to sufficiently outline the charges so that the accused is on notice and may prepare to defend against those charges, and (2) to enable the defendant to avoid double jeopardy by defining the scope of the charges. At this early stage, courts assume that the prosecution’s alleged facts are true, and the indictment will only be dismissed if the allegations fail to state an offense.
Lessig attacks the indictment’s sufficiency: “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.” He further states that “no individual Megaupload defendant is shown to have . . . ‘willfully’ or criminally copied or distributed a copyrighted work.” While it’s true that these things haven’t been proved beyond a reasonable doubt after a trial on the merits, it’s simply not true that the indictment doesn’t allege these things sufficiently to put Dotcom on notice of the crimes he’s accused of committing.
As we’ll see below, Counts Four and Eight in the indictment simply follow the language of the applicable statutes, supported by the alleged facts that establish willfulness. The Supreme Court has stated numerous times that “[i]t is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.” The Counts here do just that—they quote the statutes and fully set forth the elements of the crimes.
Count Four: Pre-Release Movie “Taken”
Count Four of the indictment accuses Dotcom of felony copyright infringement for the pre-release distribution of the movie “Taken” in violation of Section 506(a)(1)(C) of the Copyright Act, which provides:
Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed . . . 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.
Tracking the language of the statute, Count Four states:
On or about October 25, 2008, in the Eastern District of Virginia and elsewhere, the defendants . . . did willfully, and for purposes of commercial advantage and private financial gain, infringe a copyright by distributing a work being prepared for commercial distribution in the United States, to wit, the copyrighted motion picture “Taken ” (which would not be commercially distributed until on or about January 30, 2009) by making it available on a computer network accessible to members of the public, when defendants knew, and should have known, that the work was intended for commercial distribution.
The superseding indictment and summary of evidence clearly allege that this crime was committed willfully. “Taken” was released in the United States in January of 2009, and one of Dotcom’s co-defendants, Bram Van Der Kolk, uploaded it more than three months earlier in October of 2008:
On or about October 25, 2008, VAN DER KOLK uploaded an infringing copy of a copyrighted motion picture entitled “Taken 2008 DVDRip Repack [A Release Lounge H264 By Micky22].mp4” to Megaupload.com and e-mailed the URL link for the file to another individual. An infringing copy of this copyrighted work was still present as of October 27, 2011, on a server in the Eastern District of Virginia controlled by the Mega Conspiracy.
In February of 2009, Van Der Kolk told another co-defendant, Mathias Ortmann, that he had uploaded several movies, and then he sent Ortmann a link to “Taken”:
On or about February 7, 2009, via Skype, VAN DER KOLK told ORTMANN, “I have many old videos in my portfolio.” VAN DER KOLK then said, “I uploaded full dvd rips” and then sent ORTMANN a Mega URL to the copyrighted motion picture Taken and commented, “that was a 1013.05 MB upload :)” ORTMANN responded, “looks good :)” and VAN DER KOLK replied, “yeah.”
Three months later, another of Dotcom’s co-defendants, Finn Batato, emailed Ortmann with a message from a customer who had watched “Taken”:
On or about May 25, 2009, BATATO sent an e-mail to ORTMANN that contained customers’ e-mails. One of the customer e-mails indicated: “We watched Taken successfuly and then tried to watch the “Alphabet Killer ” a day later and got the message to upgrade if we wanted to continue watching.”
The alleged facts show that one of Dotcom’s co-defendants, Van Der Kolk, uploaded “Taken” and that two others, Ortmann and Batato, knew about it. Given his admission that he had “uploaded full dvd rips,” and given that the file was named “Taken 2008 DVDRip Repack [A Release Lounge H264 By Micky22].mp4,” it’s obvious that Van Der Kolk knew that this was infringement. These smoking gun emails establish that this infringement was done willfully, with the approval of two other co-defendants.
But what about Dotcom? Why is he charged with this crime? There is no evidence that Dotcom himself knew about this particular movie—nor does there have to be. Count Four of the indictment also alleges aiding and abetting, and Dotcom can be found guilty for the acts taken by his co-defendants since he’s their accomplice. Under federal criminal law, anyone who “aids, abets, counsels, commands, induces or procures” the commission of a federal crime can be punished as if he committed the crime himself. This “reflects a centuries-old view of culpability: that a person may be responsible for a crime he has not personally carried out if he helps another to complete its commission.”
The test is whether Dotcom “(1) takes an affirmative act in furtherance of that offense, (2) with the intent of facilitating the offense’s commission.” The government here alleges ample facts, including smoking gun emails, to show that Dotcom encouraged his co-defendants to commit copyright infringement on an incredible scale. For example, Dotcom forwarded an email from someone complaining about 130 “illegal links” to Ortmann and Van Der Kolk with the following instruction: “Never delete files from private requests like this.” In another email, Dotcom berated Van Der Kolk and two other co-defendants for deleting thousands of links after rightholders complained: “I told you many times not to delete links that are reported in batches of thousands from insignificant sources. . . . [T]he fact that we lost significant revenue because of it justifies my reaction.”
This evidence paints a picture of Dotcom creating Megaupload from the ground up as a profit-making, piracy-focused machine. To pin this crime on Dotcom, the government will have to prove that Van Der Kolk uploaded “Taken” as part of the venture Dotcom associated with, participated in, and sought by his own actions to make succeed. This task hardly seems insurmountable.
Despite what Lessig would have us believe, Count Four clearly alleges facts sufficient to establish a prima facie case for felony copyright infringement of the pre-release movie “Taken.” The movie was uploaded by Van Der Kolk three months before it was released as part of the criminal enterprise Dotcom and his co-defendants participated in willfully. Remarkably, Lessig never even mentions the movie “Taken” in his affidavit.
Count Eight: Scraping YouTube Videos
A look at Count Eight of the indictment results in a similar conclusion. Count Eight accuses Dotcom of felony copyright infringement for scraping videos from YouTube in violation of Section 506(a)(1)(A) of the Copyright Act, which provides:
Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed . . . for purposes of commercial advantage or private financial gain[.]
Tracking the language of the statute, Count Eight states:
For the 180 days up to and including October 31, 2007, in the Eastern District of Virginia and elsewhere, the defendants . . . did willfully, and for purposes of commercial advantage and private financial gain, infringe copyrights from the Youtube.com platform, by reproducing and distributing by electronic means, during a 180-day period, at least ten copies and phonorecords of one or more copyrighted works which had a total retail value of more than $2,500.
The superseding indictment and summary of evidence also clearly allege that this crime was committed willfully. The relevant 180-day period is from May of 2007 to October of 2007, but the scraping of YouTube started well before that. In April of 2006, Van Der Kolk messaged Ortmann to see if they had enough server space for the scraped YouTube videos that Dotcom himself had asked for:
On or about April 10, 2006, VAN DER KOLK sent an e-mail to ORTMANN asking “Do we have a server available to continue downloading of the Youtube’s vids? … Kim just mentioned again that this has really priority.”
Van Der Kolk also expressed concern that YouTube might detect the scraping:
On or about April 10, 2006, VAN DER KOLK sent an e-mail to ORTMANN indicating “Hope [Youtube.com is] not implementing a fraud detection system now… * praying *”.
Ortmann responded that this might not be a problem:
On or about April 10, 2006, ORTMANN sent an e-mail to VAN DER KOLK in reply to the “fraud detection” message indicating “Even if they did, the usefulness of their non-popular videos as a jumpstart for Megavideo is limited, in my opinion.”
Van Der Kolk then replied that they only had 30% of YouTube’s videos:
On or about April 10, 2006, VAN DER KOLK sent an e-mail to ORTMANN in reply to the “jumpstart for Megavideo ” message indicating that “Well we only have 30% of their videos yet.. In my opinion it’s nice to have everything so we can descide and brainstorm later how we’re going to benefit from it.”
In February of 2007, Van Der Kolk reminded Ortmann that Dotcom wanted every single YouTube video:
On or about February 11, 2007, VAN DER KOLK sent an e-mail to ORTMANN indicating that “Kim really wants to copy Youtube one to one.”
These emails establish that the co-defendants willfully infringed by scraping as many videos from YouTube as they could at Dotcom’s insistence. These scraped YouTube videos were part of their plan to “jumpstart” the popularity of their websites, and the co-defendants were concerned that YouTube would catch on to what they were doing. In order to cover their tracks, the government explains how the scraped YouTube videos would be made to appear under random users’ accounts:
A preliminary investigation of the data bases and associated software code shows that the Mega Conspiracy implemented a software tool to copy videos from Youtube.com. After copying a video from Youtube.com, the tool would import the video into the account of a randomly-selected, already-existing user of the Mega Sites. In addition, the tool would assign the video a random, false “view” count. This is consistent with what is discussed in Paragraph 28(d), which describes an August 12, 2007 e-mail, where a copyright owner complains that a video from his Youtube.com account appeared to have been infringed by a user on Megavideo.com, but that the Megavideo.com user had not logged on during that time period.
This practice of scraping YouTube continued for many years—presumably resulting in millions of intentional infringements. In January of 2011, one of the co-defendants, Sven Echternach, forwarded an email from an employee to Van Der Kolk and another co-defendant, Julius Bencko, acknowledging that YouTube was still a go-to video source:
On or about January 27, 2011, ECHTERNACH forwarded an e-mail to VAN DER KOLK and BENCKO that an employee from the Megateam in the Philippines wrote that asked about access to Youtube. In that e-mail, the employee admits, “Even video resource sites such as Youtube which is our source for videos which we upload to Megavideo.”
The alleged facts show that several of the co-defendants were involved in the scraping of YouTube under Dotcom’s direct command. This wasn’t some one-off fluke—it was deliberate infringement on an incredible scale. Dotcom’s role in the matter is obvious since he was the one who gave the order to the co-defendants to scrape every single YouTube video. And as with Count Four, this makes him guilty of the crime as if he had committed it himself since he’s an aider and abettor.
Remarkably, Lessig makes no mention of any of this evidence either. The years-long scraping of YouTube videos is not discussed anywhere in his affidavit. Despite Lessig’s claims to the contrary, Count Eight of the indictment clearly alleges facts sufficient to establish a prima facie case for felony copyright infringement.
As the Megaupload saga evolves, we’ll surely hear many more claims about the legal and moral implications of the case. Lessig is not the first, and he will certainly not be the last, to argue that Dotcom and his co-defendants should not be punished for their behavior. Nonetheless, it is important to keep in mind what allegedly happened here: Dotcom and his co-defendants made millions of dollars through the rampant theft and dissemination of countless artists’ and creators’ copyrighted works. For the sake of these artists and creators, who worked hard to produce the works that were unmercifully stolen, let us hope that Dotcom and his co-defendants are held accountable for their crimes.
 United States v. Williams, 152 F.3d 294, 299 (4th Cir.1998); Russell v. United States, 369 U.S. 749, 763-64 (2013).
 United States v. Thomas, 367 F.3d 194, 197 (4th Cir.2004).
 Hamling v. United States, 418 U.S. 87, 117 (1974) (quotations and citation omitted); see also Fed. R. Crim. P. 7(c)(1) (“The indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged . . . . For each count, the indictment . . . must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.”).
 See also 18 U.S.C. § 2319(d)(2) (“Any person who commits an offense under section 506(a)(1)(C) of title 17 . . . shall be imprisoned not more than 5 years, fined under this title, or both, if the offense was committed for purposes of commercial advantage or private financial gain[.]”).
 Rosemond v. United States, 134 S. Ct. 1240, 1245 (2014).
 United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938) (L. Hand, J.) (“It will be observed that all these definitions . . . demand that [the defendant] in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.”).
 See also 18 U.S.C. § 2319(b)(1) (“Any person who commits an offense under section 506(a)(1)(A) of title 17 . . . shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500[.]”).