Questions Raised by the MegaUpload Case
Interview with Mary Moin, a law professor at EPITA
On 19 January 2012, the U.S. Department of Justice announced the indictment and arrests of leaders of MegaUpload as well as the complete suspension of its activities. MegaUpload was the most famous streaming platform among Internet users around the world. The announcement jolted the web and caused ripples in the world of press. It is considered as a new bombshell for copyright specialists. Marie Moin, a law professor at EPITA, answers a few questions regarding this resounding issue.
Streaming – what is legal and what is illegal?
In principle, the claimant positions himself as a defender of the author, who has the exclusive control of his work. Any distribution of the work not authorized by the author or the claimant is therefore an infringement. In practice, counterfeiting done without making profits, such as lending or friendly sharing, is punished less severely. The criticism against web-sites like MegaUpload is to have institutionalized counterfeiting and thus, of having made substantial profits. The main criminal charge against MegaUpload is conspiracy, which is equivalent to the French law for criminal conspiracy.
What is MegaUpload accused of?
MegaUpload claims to be a web host. The legislation states that the host is not responsible for the content that it has on its site a priori, but only if it does not respond promptly after being well informed of the presence of illegal content. It seems that MegaUpload had shown ill-will in the application of this rule. Indeed, the content signaled as illegal was eventually removed but it reappeared shortly after, with the exception of child pornography content. This raises the issue of good faith from MegaUpload when they defend themselves by blaming these reappearances as technical problems.
Why was MegaUpload tolerated for so long?
To start with, the establishing of MegaUpload was not evident – they were not on U.S. territory. Therefore it was difficult to catch them. Then, all the activities of MegaUpload were not illegal. People who were using MegaUpload for perfectly legal reasons are also finding themselves somewhat punished and it is understood that the decision to stop the site was not taken without a time of reflection. Finally, activities of MegaUpload were difficult to prove and denounce legally. Limiting the duration of viewing was a way to create a mixture between the partial representation of the work and the authorized representation of an extract of a work. Moreover, the nature of the mode of broadcasting as streaming makes it less easy to prove, than that of copying or downloading, since it leaves no visible traces.
What are the implications of this case?
The first consequence is reopening of the debate on sanctions. The reactions generated are passionate, like Anonymous, these hackers who defend MegaUpload in the name of freedom on the Web and go after the sites of its adversaries. Today, we see that the sanctions for infringement, given the amount of expected gains, are not very high: three years in prison and 300,000 euros fine. This attracts much more than drug trafficking or prostitution, for which the risks incurred are much greater. Then, the case reactivates the discussion on filtering. Does this solution, presented as effective, not have harmful side effects? The Stop Online Piracy Act (SOPA) bill debated in the U.S. in recent months would go further in facilitating the screening procedures. Finally, there is the question of economic solutions to reconcile remuneration of authors/publishers and the freedom of the Internet users. The solution of the global license was refused by the copyright holders. But the functioning mode of MegaUpload may appear as a draft model. Indeed, the site was generating huge profits from online advertising and premium subscriptions made by surfers who wanted to watch the streaming work at once. One can well imagine that in a new legal website, this money could be systematically redistributed to the copyright holders.