

Megaupload users got a temporary reprieve this week when the companies that hosted the site's servers, Carpathia Hosting and Cogent Communications, agreed not to delete any Megaupload data for at least two weeks. But actually enabling users to retrieve their data won't be easy, given how their interests may conflict with those of copyright owners.

When the Justice Department shut down Megaupload and indicted top executives for criminal copyright infringement, users of the site lost access to the files they'd stored there -- precipitously and without warning. The department initially took an Alfred E. Newmann stance, saying users had been warned to keep backup copies of the files they uploaded. At least at first, prosecutors acted as if Megaupload was just another file-sharing service, not a platform that supported legitimate uses alongside unlawful ones.

The fact is, Megaupload's 50 million accounts included some unknown percentage of users who didn't infringe on anyone's copyrights -- for example, musicians and filmmakers who used the lockers to collaborate on large files. Preventing Megaupload users from accessing the files they've stored legitimately is potentially a violation of their 1st Amendment rights, argued Julie Samuels, a staff attorney with the Electronic Frontier Foundation. That's because they have a free-speech interest not just in their own creative works but in the works of others that they've legitimately acquired and shared. And the longer their access is blocked, the more problematic that is constitutionally.

The Justice Department reportedly has been having "productive conversations" with Megaupload about how to address the problem of lost files, Samuels said. But there are a host of legal and technical issues that remain to be addressed.

For starters, if a Megaupload file is copyrighted, how can the company make sure that the person who claims it has the right to download a copy? The answer may be as simple as having users submit affidavits attesting to the fact that the files they're accessing were in fact theirs, Samuels said. But what about files that may be illegal on their face, such as digital movie files stripped of their electronic locks? Should anyone be allowed to download those?

Then again, users with suspect files may be better off if the servers were erased before copyright owners could subpoena their contents. As it is, the Justice Department has copied at least some of the servers' contents, and copyright holders may be sorely tempted to check for evidence of high-volume infringers worth suing.

The EFF and Carpathia launched a website Tuesday, Megaretrieval.com, to gather information from "innocent users who stored legitimate, non-infringing files." According to Samuels, EFF attorneys want to give those users some say in what happens to Megaupload's servers. But it's not clear what responsibility, if any, the government has to preserve the data, or how long users can be denied access to their files.

"We’re on a fact-finding mission right now. I don't know the best way forward," Samuels said. "We're asking folks to take a second, take a deep breath, consider the rights of innocent third parties who are caught up in this dragnet and go from there."

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-- Jon Healey

Photo: Megaupload headquarters in Hong Kong. Credit: AP Photo / Government Information Service