On Friday, Megaupload asked the Virginia judge overseeing its criminal copyright case to spare the data on its servers from deletion. Megaupload had leased 1,103 servers holding 25 petabytes of data from Carpathia Hosting, but it was unable to continue paying its bills after the government froze its assets. Carpathia recently complained that maintaining the servers was costing thousands of dollars per day. The hosting company asked to either be compensated for the expenses of running the servers or be given permission to re-provision them for use by other customers.

Megaupload has been trying for months to get custody of the servers. It had previously negotiated a deal to purchase the servers from Carpathia for about $1.5 million. But because Megaupload's assets have been frozen, it lacked the funds to complete the transaction without court approval. And the government objected, claiming, among other things, that the servers could contain child pornography.

Of course, as Megaupload pointed out in Friday's court filing, the presence of child pornography on the servers would be an argument in favor of preserving the data, since the government would presumably want to prosecute whoever uploaded it. More to the point, Megaupload argues that allowing the data on its servers to be destroyed would deprive Megaupload of the opportunity to fully defend itself in court.

In criminal cases, defendants are entitled to any evidence that could be helpful in their defense. Given that the government's case is likely to focus heavily on the contents of Megaupload's servers, access to that same data may be essential to rebutting the government's arguments.

Yet as Megaupload's filing points out, the defense team won't know which evidence it needs until it sees the government's own case. The government has copied "selected" data from the Megaupload servers, but it has not even revealed to the defendants which evidence has been preserved. Megaupload argues that the government may have "cherry picked" the data that will cast Megaupload in the most negative possible light. The company argues that allowing the rest of the data to be destroyed will make it impossible for Megaupload to unearth evidence that could cast the company in a more favorable light.

Megaupload argues that the government should bear the cost of preserving the Megaupload servers. But it said that if the government won't pay the bill, Megaupload is willing to cover the costs from its own funds. It asked the court to unfreeze sufficient assets to pay Carpathia for its servers, and to give Carpathia permission to transfer them. Megaupload proposes that safeguards be taken so that the servers only be used to prepare Megaupload's defense, and that no data on the servers be modified.

The government's intransigence on the preservation of evidence is the latest example of the government's scorched-earth approach to the Megaupload prosecution. Theoretically, criminal defendants are innocent until proven guilty. Yet the seizure of Megaupload's servers, freezing of its assets, and arrest of its top executives did immense damage to the company long before they had a chance to tell their side of the story to the jury. Now, the government seems to be trying to deny Megaupload the opportunity to fully defend itself in court. Megaupload may be found guilty, but like everyone else it has the right to a fair trial.