The criminal indictment against Megaupload, Kim Dotcom and his alleged co-conspirators is without a doubt the most prominent copyright case of the decade.
Tens of thousands of news articles have covered it thus far, not least because Megaupload’s founder Kim Dotcom frequently comments on the case in the media, as well as on Twitter.
While Dotcom has the right to be heard, the U.S. Government now claims that these public statements make Megaupload’s defense less credible. 
Earlier this week Megaupload’s legal team protested a secret request from the Government to share evidence with copyright holders.
According to the lawyers this one-sided disclosure could bias public opinion.
“Permitting the Government to widely disseminate a one-sided, cherry-picked set of facts threatens to improperly infect the jury pool before defendants are afforded any opportunity to present their side of the story,” Megaupload’s lawyers wrote.
In a letter sent to the district court yesterday, Acting United States Attorney Dana Boente counters this argument. Among other things, the Government suggests that Megaupload’s worries are less credible due to Dotcom’s close relationship with the media and his many comments and tweets in public.
“Defense counsel’s stated concern about ‘infect[ing] the jury pool’ might be more credible if it were not for their putative client’s close relationships with and repeated statements to media around the world,” the letter states.
“To summarize Kim Dotcom’s many appearances, interviews, webpages, articles, statements, and tweets about his claims about the evidence, witnesses, personalities, and circumstances in the criminal case pending before this Court would take thousands of pages and many hundreds of hours of video and audio.”
The letter continues with several examples of headlines that are featured on the websites of Kim Dotcom and his counsel Ira Rothken.
DOJ’s examples of Dotcom’s “appearances”
In addition to the tweets and news headlines, the Government also points to a white paper released by Megaupload lawyer Robert Amsterdam, and the book about Kim Dotcom’s life that was published last month.
“Perhaps most significantly, there is also a 48-page ‘White Paper’ produced by counsel supposedly addressing the merits and circumstances of the government’s case, called ‘Megaupload, the Copyright Lobby, and the Future of Digital Rights: The United States v. You (and Kim Dotcom),’ and a recent book entitled ‘The Secret Life of Kim Dotcom,’ which purports to provide Dotcom’s version of the prosecution’s case.”
The Government then goes on to argue that it’s “strange” that Megaupload’s legal team objects to the release of actual evidence against the defendants, while they appear to be so eager to tell their side of the story in the media and on Twitter.
“It is strange then to suggest that the release of records that will become public at the extradition hearing would be any different or that the close relationship between the media, the defendants, and their counsel that has already allowed them the opportunity to present ‘their side of the story’ would be impaired by a summary of some of the actual evidence against them,” the Government writes.
In other words, if Kim Dotcom is so eager to tell the world his side of the story, then it shouldn’t be a problem for the Government to selectively release evidence in public.
The letter doesn’t note, however, that Megaupload was not given the chance to tell their side of the story in court, unlike the Government. This is one of the main reasons why Megaupload’s lawyers objected to the sealed order to release evidence.
It is now up to Judge Liam O’Grady to evaluate whether he should side with Megaupload or the Government on this issue.
Whatever the outcome, we don’t expect that Kim Dotcom will be silent about it on Twitter and in the media. If anything, the Government’s recent comments will only add fuel to the flames.
