June 4, 2012
More than four months after federal agents shut-down the file-sharing service Megaupload and ordered a raid on the New Zealand mansion of its founder Kim Dotcom, attorneys are asking a US court to dismiss the case against the website.
Ira Rothken, the California-based attorney of both Megaupload.com and Dotcom, is calling for a US federal court in Virginia to dismiss the criminal case against the website. According to Rothken, the website’s Fifth Amendment rights were violated when the FBI ordered for Megaupload to be taken off the Internet earlier this year. As a result of the agency’s demands, Megaupload’s servers were seized and millions of files uploaded to the website — including those owned by paying subscribers — were made unavailable and are still inaccessible today. Now Rothken says that the prosecutors in the case failed to guarantee due process for his clients and is asking the court to dismiss the charges. Since Megaupload was hosted overseas, argues the site’s attorney, the Department of Justice has acted improperly in its attempts to prosecute.
“Both prongs of the procedural due process test are plainly met here. The Government has seized Megaupload’s property and domain name, ruined its reputation and destroyed its business pursuant to an indictment which is fatally flawed as a jurisdictional matter. Megaupload now finds itself in a state of abeyance, with no end in sight,” writes Rothken in a newly released statement.
“As a result of the Government’s inability to properly serve the summons on Megaupload, this Court lacks jurisdiction over the company. In the absence of effective service of process, criminal proceedings against Megaupload cannot commence, and as the Court has aptly noted, we ‘frankly don’t know that we are ever going to have a trial in this matter’.”
Indeed, those were the words US District Court Judge Liam O’Grady had for the case in April, when the proceedings against Megaupload were already three months old yet grossly underdeveloped. Rothken condemned the court system at the time for failing to properly play by the rules by opening a case against Megaupload and Dotcom over copyright infringement and other related crimes by seizing the website without first bringing charges against it. Last month Judge O’Grady even warned the FBI that the trial was in jeopardy because the Justice Department jumped the gun on the case.
In an interview with Radio New Zealand last week, Rothken added, “We’re optimistic that the case against Megaupload will be dismissed” and called the entire federal witch-hunt “flawed.”
“Megaupload is a Hong Kong corporation, it does not have an office in the United States and we’re just asking the US to play by the rules,” said Rothken. “One would think that they’d have done more legal research before filing this type of indictment against a foreign corporation.”
Speaking to AFP, Rothken added, “The rules in this instance didn’t allow a foreign corporation to be served and indicted as it has not have a presence in the US. We believe the law is clear in that issue, and we’re asking the court to dismiss the case.”
Dotcom, a German national, is currently under house-arrest in New Zealand. American prosecutors are hoping to extradite him for charges relating to his involvement with Megaupload though have been unable to do as much so far. A court hearing scheduled for the matter is slated for this August. In the meantime, though, his attorney says that the shortcuts that the US government tried to take in the case might very well cost the court a victory.
“This case was flawed from the start, once this case gets dismissed it can’t be fixed,” Rothken added to the radio network.
Dotcom previously told the website Torrent Freak that he predicts he will prevail over America’s attempt at prosecuting him but that the government has already made their point.
“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,” said Dotcom.
Rothken adds this week, “Megaupload is thus deprived of any procedure to clear its name or recoup its property, in clear violation of its due process rights.”