Megaupload's lawyers file notion for dismissal due to lack of jurisdiction

By Lee Kaelin on May 31, 2012, 11:00 AM

Following a New Zealand court ruling ordering the US Government to share all evidence relating to the criminal charges of the accused on Tuesday, attorneys representing Megaupload filed a notion in the Alexandria District Court to throw out the criminal copyright charges (PDF) brought against the file-sharing website due to lack of legal jurisdiction.

"Megaupload does not have an office in the United States, nor has it had one previously," Megaupload's lawyers wrote in the motion filed with the District Court for the Eastern District of Virginia. "Service of a criminal summons on Megaupload is therefore impossible." The filing pointed out that even if the US was successful in extraditing Doctom, it would still be unable to satisfy the second part of rule 4.

"The Federal Rules do not contemplate service of a criminal summons on a wholly foreign corporation without an agent or offices in the United States.  Wholly foreign corporations, therefore, may not be prosecuted for alleged violations of federal criminal law unless they waive service.  In short, a corporation such as Megaupload cannot be brought within the jurisdiction of this Court for criminal proceedings absent its consent."

This marks an important point in the ongoing legal battle and follows an earlier hearing in which the court acknowledged that Megaupload not having been served was an "issue." In a remark that could prove very damaging to the US Government's case against the file-sharing website, the court even admitted that it "frankly didn't know that we are ever going to have a trial in this matter."

Speaking on Radio New Zealand, Ira Rothken, a member of Megaupload's legal counsel said, "the law here in the United States is that you can't indict and then serve a company that does not have a presence in the United States [...] This case was flawed from the start, once this case gets dismissed it cannot be fixed."

Dotcom's legal counsel also filed a second notion requesting (PDF) that assets seized as a result of the raid on his residence be unfrozen to allow them to fund their defense. The filing also highlighted the key points of argument should it reach court:  "Patent law, from which the Grokster Court borrowed the 'inducement' rule is exclusively civil in nature," the brief stated. "There is no such thing as criminal liability for patent infringement."

"The Government has stepped in to transmogrify the doctrine of secondary infringement, as fashioned by the courts for civil copyright cases, into a crime and to wield its prosecutorial pretrial powers to snuff out an innovative technology," Megauploads lawyers argued. The consequence of doing so would risk "upsetting the essential balance that Congress and the Supreme Court have taken such care to strike and maintain."

"We'll respond at the appropriate time in court," a spokesperson for the US Attorney's Office for the District of Virginia said in an emailed statement to CNet




User Comments: 21

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Guest said:

good luck with that argument. I think at this point whatever the corps want, US gov is going to give.

Adhmuz Adhmuz, TechSpot Paladin, said:

Theres a serious point being made there, why does the US have the right to prosecute someone who doesn't hold legal residence or office in the USA. It's up to the New Zealand court to prosecute their own people, not the US to police the world because they feel they can.

mattfrompa mattfrompa said:

the US is declining in relevance on many fronts and it will try anything except what it should, properly protect, educate and care for it's people.

Littleczr Littleczr said:

I live in California and my government sickens me in this issue.

Guest said:

It's to the point where many countries view the US not only as a joke, but also as weak and weakening more everyday. In the next decade I predict there will be a major attack on American soil. WWIII is inevitable... it's only a matter if time. /rant lol

NTAPRO NTAPRO said:

Lol that expression he has...

gwailo247, TechSpot Chancellor, said:

Well, according to the Neuromancer universe, we should be seeing offshore data havens in international waters, followed by satellite ones when the capability arrives. This proves its all about jurisdiction baby...

Forget selling cheap knockoffs of Chinese weapons, if North Korea really wanted to make some money they should host pirate servers.

MilwaukeeMike said:

<p>Theres a serious point being made there, why does the US have the right to prosecute someone who doesn't hold legal residence or office in the USA. It's up to the New Zealand court to prosecute their own people, not the US to police the world because they feel they can.</p>

Well... that would be because the people he's stealing from are Americans. It'd be like if you got your identity stolen by someone in New Zealand and they ran up your credit cards and trashed your credit. Should they be completely free to do this because they're outside the USA? The US doesn't 'feel they can' the US is getting pressured by the victims to act. Do you feel any and all internet crime should be allowed so long as the person and computer lives in a country with no laws? Better yet, how about on a boat outside of ANY country?

MilwaukeeMike said:

<p>Well, according to the Neuromancer universe, we should be seeing offshore data havens in international waters, followed by satellite ones when the capability arrives. This proves its all about jurisdiction baby...</p>

lol, you beat me to it.

Littleczr Littleczr said:

<p>It's to the point where many countries view the US not only as a joke, but also as weak and weakening more everyday. In the next decade I predict there will be a major attack on American soil. WWIII is inevitable... it's only a matter if time. /rant lol</p>

I would not go that far. Yes, I hate my country for doing this but the UNITED STATES OF AMERICA is the greatest country in the world. Pisses the American people off and watch us come together and achieve anything we desire.

Guest said:

where u see ""We'll respond at the appropriate time in court," u can read :"HELP"

Mantrhax Mantrhax said:

<p>
<p>Theres a serious point being made there, why does the US have the right to prosecute someone who doesn't hold legal residence or office in the USA. It's up to the New Zealand court to prosecute their own people, not the US to police the world because they feel they can.</p>
</p>

<p><br /></p>

<p>Should they be completely free to do this because they're outside the USA? </p>

Yes, US doesnt have jurisdiction out of his borders, so the US must ask nicely if the country can help then, like New Zealand did, they did all wrong and burned they own feet, its funny and tragical. I bet NZ guys are really rethinking about the next elections right now.

Tygerstrike said:

Well technically if MegaUpload used a .com address the US has jurisdiction because theGovt. owns the. Com .org and one other I can't recall right this minute. So they could nab him for violating US copyright laws because he was using a address owned by the government.

Techspot ran an article a few months ago about it if you feel the need to look it up

Tygerstrike said:

Also doesn't he have a look on his face like 'Hey there Mr cheeseburger, what are you doing sitting there all alone

Guest said:

Tygerstrike wrote: "if MegaUpload used a .com address the US has jurisdiction because theGovt. owns the. Com .org..."

Bzzt. Wrong. Registering a com/net/org address does not put you and your company into US legal jurisdiction. Registering a .com does not mean that the US govt has the right to invade a person's home in another sovereign country, try to pull a fast one with the local legal system, to snuff out a business it dislikes which has no physical presence in the US.

At most, it means that ICE could potentially pull the megaupload and associated .com domains, like they have already been doing with other com domains, but that is all.

Guest said:

For a taste of irony, take a tour of Thomas Jefferson's house and see how many of his "inventions" he copied from Europe.

The law needs to change. With the ability to spread ideas and information around the world in minutes, and product lifetimes measured in months, do we really need laws that protect copyright for decades and even lifetimes ? Surely it would benefit idea development if they lasted only two to five years ? This is still enough time for a company/individual to make a profit from their idea so they can move on to the next one.

Or maybe it isn't about what's best for everyone - maybe it's just about personal greed.

Guest said:

To the off-shore crowd. Who has the biggest navy in the world? International waters are not so international will the hugest fleet on the ocean sails up and surrounds your freighter. Now, about those 'rights'? Who enforces 'International water'? Hmm?

Tygerstrike said:

@ Guest 8:38pm

Actually you would be incorrect. Mega used a .com address to fleece US citizens. That puts it under US jurisdiction if I read the TS article correctly. As the article stated the company that applied to get a .com registery they are bound by the fact that the US govt. "owns" the rights on .com.

Wow a anon troll. Try reading a bit more before you type.

And I agree with the guest who posted at 9:26. What would stop ANY Naval fleet from lobbing a few shots at a server farm sitting miles and miles off shore. Not much. It could be called an "accident". Some fines will be paid, someone will get a slap on the wrist lol.

Guest said:

Nice try but a .com adress gangs no jurisdiction over anything but the domain name... So they van seie the domain and the serveres if sushi serveres are on us sol... That is all

Guest said:

*autocorrect is the worst idea evner

Tygerstrike said:

Once again READ THE ARTICLE!! Please. It was all spelled out in the article. Maybe you will have a better understanding of the situation and the legal ramifications of the US. Govt. owning the .com registery. Its owned by the govt. any crimes comitted while using the .com against US citizens gives them the right to go after whomever.

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