What is the traditional fate of pirates?
They are hanged.
What is the current likely fate of pirate content?
It is dropped.
Even if it would be the best evidence to back up the U.S. government's allegation that MegaUpload distributed enough pirated content to justify shutting down the whole operation.
According to an Associated Press story yesterday, federal prosecutors filed a letter with the court overseeing the case saying they'd copied out the files they wanted and had no further interest in the data or servers holding it.
Since MegaUpload is still responsible for both servers and data, that can only mean possession of both passes out of official hands and back to the owners. With physical evidence that usually happens only after the trial and any potential appeals are finished.
In this case it appears to be a pressure tactic from the Dept. of Justice, which froze MegaUpload's bank accounts and access to even small amounts of operating capital, according to Ira Rothken, the lawyer defending MegaUpload and seven employees.
Now that the government copied its evidence out of the servers, it has no further right to access the data, which is housed in facilities owned by hosting companies Carpathia and Cogent, which prefer to be paid for their services.
Since MegaUpload can't pay, the data may start walking the plank (well, I/O channel) toward final deletion as early as Thursday, Roghken said.
At least 50 million MegaUpload customers are in danger of losing data that is overwhelmingly legitimate, according to Rothken.
Rothken has asked the U.S. Attorney's office to unfreeze enough assets for MegaUpload to pay its hosting bills.
“We of course would like to think the United States and Megaupload would both be united in trying to avoid such a consumer protection calamity whereby innocent consumers could permanently lose access to everything from word processing files to family photos and many other things that could never practically be considered infringing,”– Megaupload attorney Ira Rothken, in an interview with TorrentFreak, Jan. 29, 2012.
Some customers are already suing MegaUpload for losing personal – non-pirated – data they'd entrusted to it.
Many of the organizations suing – or paying to help others sue – are "pirate parties:" political organizations in some European countries that grew out of content-sharing networks to become small but vocal advocates for privacy, customer rights and open-access to information.
How big a pirate do you have to be before the FBI will take you down? No one knows.
The FBI, after investigating MegaUpload's business and activities for two years, swooped down on MegaUpload sites in the U.S. Jan. 20 with more than 20 warrants, while police in New Zealand arrested MegaUpload founder Kim Dotcom and several other MegaUpload employees on behalf of U.S. authorities.
The FBI charged the MegaUpload Seven with knowingly creating a harbor for large-scale trading of illegally copied, copyrighted files – movies, music and games or applications, primarily.
The FBI used the participation of American customers and the presence of some MegaUpload data in U.S.-based data centers to demonstrate their jurisdiction and right to make the raid and to justify shutting the whole operation down even though the allegedly illegal (OK: Yes, very illegal) content made up only a minority of the total data and total downloads from MegaUpload.
Like an abandoned house used primarily to sell or use crack, MegaUpload was declared a criminal operation and shut down in toto – not just in the parts that were actually functioning en pirato.
Fortunately for the FBI, there is no standard for what constitutes "enough" pirate content to shut down a whole web site; it appears to depend on how aggressive the prosecutor is and how pushy and paranoid the copyright-owner's lobbyists can afford to be.
It's an odd coincidence that a two-year investigation would culminate in a high-profile raid just days before a big, controversial bill that would add teeth (the assumption of guilt, rather than innocence, for example) to copyright protection laws came up for a vote in the Senate.
Meanwhile, on the side of the political aisle that got pantsed, wedgied and swirlied over blatant attempts to suck up to big donors in the entertainment business by giving them license to violate other people's Constitutional rights to free speech, freedom from illegal search and seizure and to preserve whatever pathetic remnant of their own privacy is left.
Luckily, as the MegaUpload case has shown, the government is perfectly willing to release your data once it has what it wants – a complete copy you have no control over and will never get back – though it won't do anything to allow you to keep that data from being deleted while Uncle Sam holds on to the money you'd normally pay to legal service providers for the legal part of your service.
That's a legal philosophy best demonstrated that doesn't really match the spotty record of European powers in prosecuting pirates in the 16th- and 17th-century.
It's more like the response allegedly given by Bishop Adhemar de Puy, the Pope's representative to the armies of the First Crusade, when we was asked how Crusaders would know who inside the city were "bad" (non-Christian) and should be slaughtered without mercy and which were Christian (who would be slaughtered only when it was inconvenient to avoid doing so).
The comment attributed to Adhemar (which was actually in force as policy for conquered Muslims through most of the First Crusade, used the phrase "God will know his own."
We know it better now as a T-shirt or bumper sticker, not the judgment call of a Bishop representing the decision of the representative on Earth of the Prince of Peace himself:
"Kill them all; let God sort them out."
Read more of Kevin Fogarty's CoreIT blog and follow the latest IT news at ITworld. Follow Kevin on Twitter at @KevinFogarty. For the latest IT news, analysis and how-tos, follow ITworld on Twitter and Facebook.