The MegaUpload Seizure Could Be An Opportunity

The US Department of Justice, chose the day after the massive Internet blackout protest against SOPA / PIPA to demonstrate their power by acting as if these laws were already in effect. At first, I was simply dismayed and angered by this reprehensible act, but I began to wonder if there isn't also an opportunity here to challenge a major part of of the legacy entertainment industry's rhetoric in a court of law, where their mendacity on the subject would constitute perjury.

First of all, here's an account of the MegaUpload Takedown, if you're not familiar with the facts of the case.

I'm not going to defend media piracy itself as a moral act, but I think that this action was both an extraordinarily heavy-handed over-reaction and that the actual harm of "piracy" is either nil or much, much less than that claimed by proponents of tough "Intellectual Property" laws. Nor am I going to laud Anonymous for what may feel good now, but probably isn't the best long-term strategy.

If you read the article, though, the authorities allege that they were involved in large-scale "piracy" leading to "$500 million" in "lost sales". Do you believe this claim? I certainly don't.

In the court of public opinion, you can throw dishonest propaganda around like this "piracy costs" myth, and sway people to your cause. The legacy entertainment lobby has been doing this very effectively for years now. It's been debunked rather thoroughly on more than one occasion. And there are new working business models predicated on the assumption that it is false.

But here's the thing: this is now a legal issue. In fact, it's a criminal prosecution. As I understand it, that means that the prosecution will have the burden of "proving beyond a reasonable doubt" that the allegation is true (rather than merely "proving on the preponderance of the evidence" as in a civil case).

The defense, has only to present a reasonable case that (at least) doubt exists as to whether "piracy" results in any "lost sales". I suspect there is enough evidence to at least support this as a reasonable possibility (including a study by the US Government Accountability Office (PDF)).

Is this an opportunity to call the bluff on the myth and set a precedent? Future "anti-piracy" legislation would have a harder time if a US court had determined that piracy was not linked to material economic losses as the proponents of such legislation claim.

A courtroom is a friendlier place for rational argumentation. It might be the right place to take a technical and perhaps tedious critical analysis of the impact of unauthorized file-sharing on sales. I am not a lawyer, but I suspect a few of you reading this are -- what do you think? Could it be done?

Background Image Credit: Marina GuimarĂ£es / CC By-SA 3.0


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