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On Friday morning a hearing scheduled in the criminal copyright case of Megaupload may have implications for all kinds of companies that sell storage space in the cloud — storage space used for anything from music files to family photos, research data to movie collections. The hearing will focus on what happens when the federal government blocks access to allegedly illegal files along with clearly legal ones.
Among those affected by the hearing is Kyle Godwin. He's building a new business taking videos of local sports teams in Cleveland. He sells highlights to family and friends of the players. He backed all his material up on a hard drive — until he had one of those bad days when everything technical goes wrong.
"Right in the middle of a save I knocked it [the hard drive] off my coffee table and it hit the floor," he says. He tried to open the drive and it wouldn't work. Panicked, he realized, "I can't get any of the files off of that external hard drive and that was basically everything I've worked on for the last six months."
Then Godwin smiled and remembered he also stored most of his files in a paid account with Megaupload. He went to the site to retrieve his videos. "But all I got was the opening screen," he says. Panic set it in again. "I couldn't get into any of the files. I couldn't get into the file manager. I didn't know what was going on."
What was going on was that on that very same day, the 19th of January, the Justice Department had shut down Megaupload and arrested several of its top executives for criminal copyright infringement. The DOJ claimed that the vast majority of traffic from the site's 66 million customers was illegal.
"When I heard about that," says Godwin, "I'm like, 'This doesn't even involve me so how do I get my files back? I need them now.'"
Alas, he may never get them back. That's what the lawyers are in court about. Megaupload rented servers from a company called Carpathia Hosting — that's where Godwin's files are.
Megaupload is the only company that can unlock the files of customers like Godwin. But Megaupload is blocked from access by the Federal government. Carpathia says it's costing it $9,000 a day to maintain the servers, and Megaupload can't access it's bank accounts to pay. Carpathia's asking a Federal court to tell it what to do with the servers.
The Justice Department refused to give an interview but in court documents asks the judge not get involved in what it calls a "private contractual matter" between Carpathia and Megaupload.
Online civil rights group the Electronic Frontier Foundation is filing a brief on behalf of Godwin and other innocent customers. Julie Samuels, an attorney with the EFF, says this online case shouldn't be seen any differently than a real world case. She says imagine if the government were to seize a bank.
"There are innocent third parties who might have items at that bank in a safety deposit box, on some other kind of deposit account," Samuels says. In that case, she says, "The law and the Constitution, frankly, contemplate a way for those innocent third parties to get their grandmothers' pearls back."
Samuels says there's no reason that the digital world should be different from the real one.
But the digital world is different, says copyright attorney Jim Burger. He says in the Megaupload case the court would probably have to appoint someone to sort through the huge amount of material involved.
He says that person would have to say, "'Oh yes, this 100 megabytes is Mr. Smith's and it's legal, it's his personal stuff. But this 50 megabytes is clear infringing.'"
"It would take forever to sort through 25 petabytes of data," Burger says.
He and Samuels agree that the implications of what happens to the material on the servers are great for companies like Google, Amazon, Apple and other cloud storage businesses that are trying to entice consumers to trust them with their personal data.
If Megaupload's legitimate customers can't retrieve their files, Burger admits many people will be afraid to use cloud storage.
"If I'm in the cloud storage business," says Burger, "I want this done right."
Burger says ultimately there are no laws directly applicable. It will be up to the judge to determine what is fair.
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