It's been more than five years since the government accused Megaupload and its founder Kim Dotcom of criminal copyright infringement. While Dotcom himself was arrested in New Zealand, US government agents executed search warrants and grabbed a group of more than 1,000 servers owned by Carpathia Hosting.

That meant that a lot of users with gigabytes of perfectly legal content lost access to it. Two months after the Dotcom raid and arrest, the Electronic Frontier Foundation filed a motion in court asking to get back data belonging to one of those users, Kyle Goodwin, whom the EFF took on as a client. Goodwin ran OhioSportsNet, and he used Megaupload to store the digital video he recorded of high school sports games. He paid €79.99 ($87.49) for a two-year premium subscription.

Years have passed. The US criminal prosecution of Dotcom and other Megaupload executives is on hold while New Zealand continues with years of extradition hearings. Meanwhile, Carpathia's servers were powered down and are kept in storage by QTS Realty Trust, which acquired Carpathia in 2015.

Now the EFF has taken the extraordinary step of asking an appeals court to step in and effectively force the hand of the district court judge. Yesterday, Goodwin's lawyers filed a petition for a writ of mandamus (PDF) with the US Court of Appeals for the 4th Circuit, which oversees Virginia federal courts.

"We’ve been asking the court for help since 2012," said EFF attorney Mitch Stolz in a statement about the petition. "It’s deeply unfair for him to still be in limbo after all this time."

Digital property

In the petition, the EFF sketches out the vast delays in the case. In 2012, the district court asked for further briefing about how to proceed with Goodwin's issue. But the judge never held an evidentiary hearing on the matter and never ruled on Goodwin's motion. Goodwin filed an additional brief in January 2013 and sent letters to the district court in Virginia in July and December of that year.

In 2015, proceedings on the matter kicked up again when QTS, the successor to Carpathia, told the district court it needed relief from the ongoing expense of maintaining the seized hard drives in its climate-controlled warehouse. QTS lawyers said the parties should either take possession of the hard drives, compensate QTS for storage, or allow QTS to delete and re-use the drives.

The district court again took written statements from the parties and ordered them to meet and negotiate over the matter. Goodwin again asked for access to his data, but "the government again denied any responsibility" for setting up a process to offer users their data back, according to the EFF petition. Goodwin asked again in October 2016, but the judge never made a ruling.

The files on Megaupload should have just been backups for Goodwin, but unfortunately he experienced a hard drive failure just days before the 2012 Dotcom arrest. That means the "backup" files on Megaupload are the only copies available for some of his material. In addition to losing video that he provided to parents of their kids' sports achievements, he's been unable to complete a documentary he was making about a girls' soccer team in Strongville, Ohio. OhioSportsNet also lost its promotional videos and other news packages.

The petition says it's time for the appeals court to order the lower court to take action, citing case law that states mandamus is appropriate "where a district court persistently and without reason refuses to adjudicate a case properly before it."

Setting up a process to return "valuable digital property" to Goodwin and other former Megaupload customers will nudge the government to consider others' rights when they're seizing assets, the petition concludes.

That's more important than ever as government efforts to fight computer crime enter the age of cloud computing, says EFF Legal Director Corynne McSherry.

"If the government takes over your bank, it doesn’t get to keep the family jewels you stored in the vault," McSherry wrote in the case statement. "There’s a process for you to get your stuff back, and you have a right to the same protection for your data."