Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet (54 page)

Many media outlets have spent a disproportionate amount of time focusing on the Hollywood-style raid on Dotcom’s mansion and his flashy lifestyle. But Demand Progress believes that beneath the tabloid-ready story elements lie critical questions about due process and the exercise of government power. We tracked down Megaupload founder Kim Dotcom to discuss the intersection of the SOPA/PIPA battle and his own case.

DEMAND PROGRESS:
One day after the January 18, 2012 SOPA/PIPA blackouts in the United States, you were apprehended in New Zealand for alleged criminal copyright charges related to Megaupload. Do you think the timing was a coincidence?

KIM DOTCOM:
I am doing the best I can to defend against what I believe is unjustified government aggression arising out of what appears to be a politically motivated prosecution. The timing and manner of the raid and the method of prosecution strongly suggest that the takedown of Megaupload is a highly political prosecution to win favor with Hollywood.

The raid occurred on January 19th, 2012 around the same time SOPA was going down to defeat in Congress. The raid was like a Hollywood performance complete with helicopters, real time cameras, and a SWAT team against a family with children in a nonviolent case.

The DOJ apparently leaked the raid to their favorite reporters before the raid was completed in a Hollywood-like publicity stunt. The prosecutors used a concocted ex parte procedure to take down the entire Megaupload family of sites. The prosecutors used methods that provided us and site users without notice or an opportunity to be heard by the court before the Megaupload sites were taken offline and all of our assets frozen.

Time has shown us that the end game for the Government was the takedown of the Megaupload sites without fair procedures to appease Hollywood in light of the SOPA defeat as they have delayed the substantive hearings in this case, violated the law and my rights in multiple ways, and refused to provide the evidence or discovery that formed the basis for their claims even though two courts have ordered them to do so.

DEMAND PROGRESS:
To what extent do you think the U.S. Government’s sudden interest in website seizures represents an end-run around the legislative process?

KIM DOTCOM:
My main disagreement with the current state of the copyright debate is that the political balance is tilted too much in favor of content owners to the detriment of Internet innovation. Hollywood and the United States seem to be picking and choosing who they like and don’t like and that does not provide for the fairness, due process, and predictability that dual use technology companies like Megaupload need to grow and thrive. I believe it would be better for society to allow breathing room for Internet innovation. This case is at its core not about a criminal issue but rather an economics and political debate that is better suited to be dealt with in Congress.

I believe in a system that promotes creativity and protects creative works and at the same time doesn’t unduly burden the growth of Internet service providers like cloud storage companies. The Government took down the entire Megaupload cloud storage site and apparently did not care about consumer data or free speech; they cared about making friends with the MPAA.

DEMAND PROGRESS:
Have any clues been revealed during the course of your trial about how the decision to shut down Megaupload was made and who shaped the policy?

KIM DOTCOM:
I am pragmatic—Megaupload was a relatively large cloud storage service with high profile celebrities praising it and an attractive test case for a Government interested in winning favor with Hollywood to the detriment of Internet innovation and growth. If you are politically in favor of Hollywood copyright extremism you will likely side with the Government; if you are politically in favor of Internet growth, free speech, and fair use you will likely side with us. This case should never have been brought as a criminal action it is rather a political-economic debate for Congress or other law making bodies.

DEMAND PROGRESS:
The media has paid a great deal of attention to your personal lifestyle and possessions in the course of covering your trial. But do you think this case is having an impact on the public discussion of the Internet policy and copyright?

KIM DOTCOM:
I describe myself as a father and husband first and as a technology entrepreneur second. I am somewhat of an accidental defender of civil liberties—I would have preferred for my home not to be invaded and assets not taken away and I would have preferred for the police to have not used an illegal search warrant, the Government to have not spied on me illegally, and for the U.S. to have not taken my data offshore illegally. But I am mindful that the court rulings in my case finding government misconduct not only benefit me but also act as case law to benefit all New Zealand residents from such future government abuse.

Same thing on the copyright issues. If we prevail it helps protect other Internet companies from government aggression and provides more of a safe harbor for Internet innovation. The takedown of Megaupload has catalyzed the legal and public policy discussion around cloud storage and we are hopeful it will
lead to changes in criminal copyright policies and the law to prevent a chilling effect on Internet growth and innovation.

DEMAND PROGRESS:
What kind of impact do you think your prosecution is having on potential online businesses and innovation on the Internet?

Simply put the Megaupload prosecution is having a chilling effect on Internet innovation especially on Internet sites and services that host user generated content. Before this case any copyright issues with cloud storage intermediaries was dealt with using DMCA takedown notices and in some rare circumstances secondary copyright infringement civil lawsuits but never a criminal indictment. Megaupload was started as a solution to reduce the need for email attachments. Users would upload files to their storage area, get unique links or URLs, and include the URL in the body of the email. The recipient can then decide to download the file by clicking on the unique link. Emails can then be sent and received more quickly and presumably with fewer bounces. People started using Megaupload for more general cloud storage and to provide links beyond emails such as in blogs and web pages.

The debate is whether the provision of dual use cloud storage to society, where consumers use it in both good and bad ways, renders the cloud storage provider criminally liable resulting in the entire site being shut down. We think the government is wrong and we believe we will prevail. We hope that a court finds that an ISP like Megaupload providing freemium cloud storage to users across the world, some of whom may misuse the system, is not a criminal violation by the online services provider—if we prevail it will help all tech companies worldwide by providing greater predictability against future criminal indictments.

I am an Internet entrepreneur who is the target of an experimental copyright matter and case of first impression. I am an accidental liberty defender. When I win society wins. My legal team has already helped protect the rights of other New Zealand residents by creating case law precedent against illegal search warrants and illegal U.S. conduct in removing private data from New Zealand. I hope that a court finds that an ISP providing freemium cloud storage to users across the world (some of whom may misuse the system) is not a criminal violation by the ISP. If that occurs it will help all tech companies worldwide and reduce the chilling effect Hollywood has on the growth of cloud storage.

DEMAND PROGRESS:
What are some things you think Internet users can do about these issues?

KIM DOTCOM:
In terms of what Internet users can do about government aggression is to change government and insist on leaders and policy makers that reflect your values. Helping organizations like Demand Progress is a good place to start. I am part of a mosaic of faces that are evolving the Internet—my face may be highlighted now but it takes a village for society to evolve the Internet the way it wants.

I hope that the future will be more balanced and will not lead to aggressive government takedown of an entire cloud storage site, where consumers lose
access to their data such as family photos. I have no choice but to be committed to the fight—my liberty depends on it.

DEMAND PROGRESS:
We filed a brief in your case to fight the MPAA’s attempts to block Megaupload users from retrieving their files. There appears to be tons of collateral damage from the U.S. shutdown of Megaupload, including lots of users who had their personal files stored on your site. Can you comment on what sort of precautions the U.S. government has made to preserve this data and whether you think users will ever see their files again?

KIM DOTCOM:
We are litigating the consumer data preservation and access issue now in the United States. The DOJ seems to have little interest in preserving the Megaupload user data or allowing for access. Currently much of the user data is stored on servers that are turned off and stacked in a warehouse in Virginia. The Department of Justice took down the entire Megaupload cloud storage site to appease Hollywood and in doing so destroyed free speech and consumer rights to access their own data. The DOJ is supposed to be seeking justice for all people, not just the MPAA.

In this section, we reflect on what made the SOPA/PIPA victory possible. Professor Yochai Benkler and his team map the networks that helped defeat the legislation; Dave Karpf speaks to why this activism was different from all other activism; and David Segal looks at what happened from the perspectives of an activist and former politician
.

Yochai Benkler is the Berkman Professor of Entrepreneurial Legal Studies at Harvard, and faculty co-director of the Berkman Center for Internet and Society. Since the 1990s he has played a part in characterizing the role of information commons and decentralized collaboration to Innovation, information production, and freedom in the networked economy and society. His work can be freely accessed at
benkler.org
. This essay is adapted from a broader study of SOPA activism
.

In the days following the defeat of SOPA and PIPA, two conflicting narratives developed to describe the events. The politics-as-usual narrative interpreted the events as “Google and Facebook have come to town”; the new major industry players had become new players in the same old lobbying game. The more radical narrative was that the networked public sphere had come into its own; that the events reflected a new model of political organization and democratic participation. The game itself had changed, not merely its players.

We set out to try to understand which narrative contained more truth by using a platform we developed, Media Cloud, that allows us to map the evolution of a public controversy by collecting time slices of thousands of sources, and using text and link analysis to map the progress of the debate over time. We map who is saying what, and who is citing whom, at what point in the emerging public conversation. What emerged from our study of over ten thousand articles, web pages, and blog posts that discussed SOPA, PIPA, or COICA over a period of eighteen months was a map that supports the proposition that what we had seen was quite a different game from what we had seen in the traditional, massmediated public sphere.

A diverse network of actors, for-profit and non-profit, media and nonmedia, individuals and collectives, left, right, and politically agnostic, had come together. They fundamentally shifted the frame of the debate; experimented with diverse approaches and strategies of communication and action; and ultimately blocked legislation that had started life as a bi-partisan, lobby-backed, legislative juggernaut. While it is certainly possible that behind-the-scenes maneuvering was more important and not susceptible to capture by our methods, what is clear is that by ProPublica’s tally, before January 18, 2012 SOPA/ PIPA had 80 publicly declared supporters and 31 opponents, but by the next day the bills had 65 supporters and 101 opponents.

The January 18th online protest campaign and its anchor, the Wikipedia blackout, were the core interventions that blocked the acts. But our study suggests that that day’s events cannot be understood in terms of lobbying or back
room deals; rather, this outcome represents the fruits of the online discourse and campaign whose participants are so many of the authors of this volume.

Our approach focuses on mapping the public online portion of the networked public sphere. We combine three core elements. First, we understand the relevant communicative sphere not in terms of a stable, broad category of sites that are “blogosphere” or “political blogs,” but rather in terms of discrete “controversies.” By “controversy” we mean a set of communications and actions around a core set of connected issues, irrespective of whether they originate in blogs or mainstream media, websites or even the customer-service discussion boards of gaming companies.