The New Zealand Herald newspaper quoted Saturday that judge O'Grady has told the FBI he doesn't know if “we are ever going to have a trial in this matter.” It's all down to a procedural error: Megaupload was never served with the criminal charges that are necessary to initiate a trial. But it may be more than an error; it may be an impossibility. TorrentFreak reports Megaupload’s lawyer, Ira Rothken, saying that, “My understanding as to why they haven't done that is because they can't. We don't believe Megaupload can be served in a criminal matter because it is not located within the jurisdiction of the United States.”
This raises interesting questions. In the world's largest ever copyright takedown, in a case that was more than two years in development, Megaupload’s supporters wonder why the FBI wasn’t given the same advice from its own lawyers. “This could lead one to wonder whether the whole setup was to simply destroy Mega’s businesses,” writes TorrentFreak.
Kim Dotcom has no doubts. “We have already been served a death sentence without trial and even if we are found ‘not guilty’ which we will, the damage can never be repaired,” he said.
In some ways, the Megaupload case can be compared with The Pirate Bay (TBP) case. TBP is, like Megaupload, accused of facilitating copyright infringement; and has numerous European blocking orders against it. But it persists, and is expected to continue to persist. When the Swedish government confiscated its servers on 31 May 2006, TPB went off-line for just 3 days before the service re-appeared on other servers (in The Netherlands, Belgium and Russia). At the time, TPB staff were detained and questioned, but not arrested.
The difference between Megaupload and TBP is that this time the authorities took the whole team running the organization into custody at the same time as seizing its servers and assets. The question now, however, is whether this was done legally. Dotcom believes not. “This Mega takedown was possible because of corruption on the highest political level, serving the interests of the copyright extremists in Hollywood,” he said. “Mega has become a re-election pawn.”