Eric Goldman has published his thoughts on the Megaupload prosecution because he believes it to be “an incredibly important Cyberlaw development.”
Goldman believes that analysis of the files could prove “a small amount of provable criminal copyright infringement” but not to a level that would normally provoke government intervention. “After all,” he says, “millions of Americans routinely commit violations like that, and mass panic would be at hand if the government exercises its prosecutorial discretion so loosely.”
What worries him is that Megaupload demonstrates a government acting as a proxy for private commercial interests (echoing Kim Dotcom’s own opinion that he was a ‘gift’ by government to Hollywood). Goldman cites a number of drivers, such as “the revolving door between government and the content industry,” and “the Obama administration’s desire to curry continued favor and campaign contributions from well-heeled sources.” The result, he says, is a depressing display of abuse of government authority.
He describes the prosecution of Megaupload as ‘lawless’, and concentrates on two aspects. Firstly, he believes that the government is making up the law as it goes. “Criminal copyright infringement requires willful infringement,” he says, adding that “Megaupload’s subjective belief in these defenses should destroy the willfulness requirement.”
Secondly, he compares taking down Megaupload to shutting down a printing press. “Under our Constitution,” he claims, “the government can’t simply shut down a printing press, but that's basically what our government did when it turned Megaupload off and seized all of the assets.” The problem is that it damages “countless legitimate content publications by legitimate users of Megaupload.”
However, it is Eric Goldman’s conclusion that will be most depressing for civil liberties and anti-censorship activists. “In the end,” he suggests, “the Megaupload prosecution demonstrates that SOPA advocates are inevitably going to win. The content owners’ ire toward “foreign rogue websites,” combined with the administration’s willingness to break the law, if necessary, to keep content owners happy, leads to lawless outcomes like the Megaupload prosecution and ICE’s domain name seizures.”