Megaupload: the crucial distinction between libertarianism and anarchy

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.

(Fifth Amendment to the United States Constitution)

It was of course a mere coincidence that the closure of the Megaupload file locker site, and the arrest of some of its alleged leaders, occurred on the day following SOPA strike day [i]. It so happened that a fortnight before, on January 5, seven individuals and two corporations – Megaupload Limited and Vestor Limited – were indicted by a Federal grand jury in the Eastern District of Virginia, and charged with engaging in a racketeering conspiracy, conspiring to commit copyright infringement, conspiring to commit money laundering and two substantive counts of criminal copyright infringement.

What this means is that at least twelve out of twenty-three US citizens, selected from a pool consisting of names culled from various databases, such as national voter lists, motor vehicle license lists and public utilities lists [ii], and meeting outside the presence of a judge, decided that there was sufficient evidence to warrant indicting the delightfully-named Herr Kim Dotcom, his business partners and two corporations they control, for engaging in the pretty serious crimes described in the Justice Department’s press release quoted above. Those offenses of course go well beyond mere copyright infringement, although this is also alleged to have occurred on a massive scale.

Megaupload is based in Hong Kong, but some of the alleged pirated content was hosted in the US on leased servers in Ashburn, Virginia, which gave US authorities jurisdiction, the indictment said.

That is not to say this ancient institution, which the United States is alone among common-law countries in retaining, provides a foolproof safeguard. The Cato Institute, among other recent commentators, pointed out in 2003, at the height of the Bush administration’s ‘war on terrorism’, that:

Like its more famous relative, the trial jury, the grand jury consists of laypeople who are summoned to the courthouse to fulfill a civic duty. However, the work of the grand jury takes place well before any trial. The primary function of the grand jury is to inquire into the commission of crimes within its jurisdiction and then determine whether an indictment should issue against any particular person. But, in sharp contrast to the trial setting, the jurors hear only one side of the story and there is no judge overseeing the process. With no judge or opposing counsel in the room, grand jurors naturally defer to the prosecutor since he is the most knowledgeable official on the scene. Indeed, the single most important fact to appreciate about the grand jury system is that it is the prosecutor who calls the shots and dominates the entire process. The grand jurors have become little more than window dressing.

This is of course potentially true. But grand juries are no substitute for criminal proceedings. They are a necessary preliminary stage for them to be initiated, where a decision is taken, not on actual guilt, but on whether there is a sufficient case to be made for indicting someone in the first place. Whatever the pressures on them, the role of the grand jury is only to determine probable cause—not guilt. And in the case at hand, while I have not of course had access to the evidence presented, I believe it is not unreasonable to plead that the above gentlemen had, at least, a case to answer.

In addition, since the private individuals named in the case were not physically present in the US at the time of their indictment, it was necessary for the American administration to contact the governments of the countries where they were resident—in the case of Herr Dotcom and some of his business partners, HM Government in New Zealand—to obtain their agreement to physically apprehend them, in a scene worthy of a gangster movie (‘It was definitely not as simple as knocking at the front door,’ said one of the New Zealand police officers involved in the operation).

Because of this circumstance, the US Government will face the additional hurdle of establishing before the New Zealand extradition court that a reasonable case can also be made that the alleged activities of Herr Dotcom and his associates were also illegal under New Zealand law (no proceedings are being instituted against them in New Zealand). And they are apparently sufficiently rich to afford to defend themselves as vigorously as Wikileaks’s Mr Julian Assange.

Unless and until they are found guilty in a US court, Herr Dotcom and his associates, will thus be protected by due process and a standard of justice that meets the world’s highest standards. The allegations against them are serious ones. I cannot agree with the Electronic Foundation, which said in a statement that the arrests set ‘a terrifying precedent. If the United States can seize a Dutch citizen in New Zealand over a copyright claim, what is next?’ There is no equivalent in New Zealand to the controversial Extradition Act 2003, a pretty scandalous piece of legislation enacted by the Blair government, which allows the US to extradite UK citizens and others for offences committed against US law, even though the alleged offence may have been committed in the UK by a person living and working in the UK [iii]. And the allegations against the defendants go well beyond mere copyright violations.

What the Megaupload affair illustrates, therefore, is that additional legislation of the type of that proposed under SOPA and PIPA is hardly necessary to enforce copyright law. The global, libertarian environment, largely free of government interference, which made the Internet possible is something that must be preserved, and attempts to curtail it, whether they come from members of the US Congress, the French President’s wife, or a weak Spanish government, need to be resisted. But there is a distinction to be made between libertarianism and anarchy—an environment in which there are no enforceable standards at all. Freedom and creativity aren’t protected when there aren’t any rules at all or when those on the statute book can all be flouted despite being proportionate and reasonable.

I believe the existing body of US legislation and case law governing the digital economy to meet those standards of fairness and proportionality. This site, which is governed by New York law, strictly conforms with these standards, sharing its content via a Creative Commons License, while affirming its copyright on the underlying computer code. Any citations made are done under the well-established practice of Fair Use legal, non-licensed citation or incorporation of copyrighted material. Any incidence to the contrary can be reported on the site’s DMCA page. It’s possible for every actor of the Internet operating in the United States to operate freely under the same provisions. I believe that environment offers the right balance between the insane repression sought by the entertainment industry that was temporarily ended in the US on Wednesday—and will, one hopes, be ended in France later this year after the Presidential elections—and the lawless one on which Herr Dotcom and his associates are alleged to have thrived. I’m certain they will get more than a fair hearing, and wish them good luck for the future: the clothes, swagger, helicopter and the panic room certainly provided entertainment to the world—surely a mitigating circumstance that the Motion Picture Association of America will fully appreciate.

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  1. It appears that Herr Dotcom was planning to hold an extravagant birthday party at his New Zealand house on January 21,and that all his associates had travelled to the country to attend it, providing authorities with the opportunity to arrest them all together. []
  2. Unlike potential jurors in regular trials, grand jurors are not screened for biases or other improper factors. []
  3. The Coalition is considering removing the more controversial aspects of the Blairist extradition legislation. []