April 22, 2012
A US judge has put a bomb under the Megaupload case by informing the FBI that a trial in the United States may never happen. The cyberlocker was never formally served with the appropriate paperwork by the US authorities, as it is impossible to serve a foreign company with criminal charges.
The US Government accuses Kim Dotcom and the rest of the “Mega Conspiracy” of running a criminal operation.
Charges in the indictment include engaging in a racketeering conspiracy, conspiring to commit copyright infringement, conspiring to commit money laundering and two substantive counts of criminal copyright infringement.
While the prosecution is hoping to have Megaupload tried in the US, breaking news suggests that this may never happen.
It turns out that the US judge handling the case has serious doubts whether it will ever go to trial due to a procedural error.
“I frankly don’t know that we are ever going to have a trial in this matter,” Judge O’Grady said as reported by the NZ Herald.
Judge O’Grady informed the FBI that Megaupload was never served with criminal charges, which is a requirement to start the trial. The origin of this problem is not merely a matter of oversight. Megaupload’s lawyer Ira Rothken says that unlike people, companies can’t be served outside US jurisdiction.
“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,” Rothken says.
Megaupload’s lawyer adds that he doesn’t understand why the US authorities weren’t aware of this problem before. As a result Judge O’Grady noted that Megaupload is “kind of hanging out there.”
If this issue indeed prevents Megaupload from being tried in the US, it would be a blunder of epic proportions. And it is not the first “procedural” mistake either.
Last month the New Zealand High Court declared the order used to seize Dotcom’s property “null and void” after it was discovered that the police had acted under a court order that should have never been granted.
The error dates back to January when the police applied for the order granting them permission to seize Dotcom’s property. Rather than applying for an interim restraining order, the Police Commissioner applied for a foreign restraining order instead.
The exact ramifications of the failure to serve will become apparent in the near future.
Update: Megaupload founder Kim Dotcom responds, and he’s not happy.