It's a cache of data roughly equivalent to half of the
Library of Congress and nobody quite knows what to do with it.
Tens of millions of digital files kept on Megaupload.com went
dark earlier this year. Megaupload was a cyberlocker of
sorts, a service that offered individuals and businesses
storage space for digital files.
But in January, the federal government seized most of the
company's assets and charged its founders with running a
criminal enterprise designed to facilitate the illegal
sharing of copyright-protected movies, music and TV shows.
A hearing late last week in US District Court in Alexandria,
Virginia. on what should be done with the data suggests just
how intractable the problem is. Five different parties -
including the federal government and the Motion Picture
Association of America - weighed in with disparate views on
what should happen. US District Judge Liam O'Grady ordered
the parties to negotiate over the next two weeks and come up
with a solution acceptable to all sides.
Currently the data - 25 million gigabytes' worth - sits on
1100 powered-down servers stored in a climate-controlled
warehouse in Harrisonburg, Virginia. The company that leased
the servers to Megaupload, Dulles-based Carpathia Hosting,
asked the court for guidance on what it should do.
Megaupload had its assets seized and is no longer paying for
the servers' upkeep, so Carpathia is paying thousands of
dollars a day just to store the machines. They are also
losing revenue that would be available if it erased the data
and repurposed the servers for other uses. But Carpathia said
it's reluctant to erase data that may serve as evidence in a
The federal government and the MPAA contend the vast majority
of the data on those servers is illegally pirated content,
and that the people who stored those files with Megaupload
should not get access to them.
But some of the people and small businesses that used
Megaupload had perfectly legitimate files and did nothing
wrong. Internet advocates, including the San Francisco-based
Electronic Frontier Foundation, say a mechanism should be put
in place so those users can get their data back.
Julie Samuels, an attorney with the foundation, suggested the
burden should be on the government to create and pay for such
a mechanism because it was the government's tactics in
prosecuting Megaupload and shutting down the entire site that
caused the problem.
"A lot of this chaos was of the government's making," Samuels
Megaupload's lawyer, Ira Rothken, said Megaupload needs the
data preserved so the company and its officers - including
eccentric founder and majority owner Kim Dotcom - can prove
their innocence. Dotcom is currently in New Zealand fighting
extradition to the US.
Megaupload cut a deal with Carpathia in late February to pay
roughly $US1 million to gain access to the servers and the
files, but the government objected to the deal, fearful that
Megaupload would move the servers to a foreign country and
resume its criminal activity.
"It's like trusting the thief with the money," prosecutor Jay
Prabhu told the judge.
Prabhu said the government, and therefore taxpayers, would
have to spend millions of dollars to pick and sort through
the files and return legitimate ones to their rightful
owners. He said if anyone should bear that burden it's
Carpathia. He suggested that the company was not the innocent
third party it purports to be.
Prabhu said Carpathia made $35 million from Megaupload over
the years and received thousands of notices that it was
harboring pirated content. Therefore, Prabhu said, it can't
claim to be shocked and caught off guard that the files and
servers are now enmeshed in a criminal investigation.
The government said it has copied selected samples of what's
on the servers and no longer needs the files as evidence. It
also says it is prepared to share the data as required under
federal trial rules with Megaupload.
Prabhu made clear at the hearing that the government is not
seeking the files' erasure. But he said it's not the
government's duty to maintain the files and that ultimately
the issue is a contractual matter between Carpathia and
Megaupload that is not a matter of government interest.
In court papers the government said while it's unfortunate
that some lawful users of the site could lose access to their
data, Megaupload's own terms of service warned users that
they should store backup files elsewhere.
Judge O'Grady ordered the parties to meet under the
supervision of a federal magistrate with a goal of reaching
resolution. If that proves impossible, he said he would then
wade in, but his preference was for a negotiated settlement,
"Let's get together and see if you can't work it out,"