For the first time Megaupload has filed a motion in response to the U.S. indictment. Kim Dotcom’s legal team has asked a Virginia federal court to dismiss the criminal case the U.S. Government started in January. The defense argues that the U.S. violated Megaupload’s due process rights by destroying its business, without having properly served the company. If granted, this means the Megaupload case will be over.
In January, the U.S. Government announced that it had initiated one of “the largest criminal copyright cases ever brought by the United States.” That case was brought against Megaupload and its key employees, including founder Kim Dotcom.
The authorities seized domain names, servers and personal belongings, and asked for the extradition of the defendants who were all arrested abroad. Since then, Kim Dotcom and his colleagues have been fighting against extradition in New Zealand. Today, the focus is shifting to the U.S. case.
Megaupload’s lawyers just filed a motion to dismiss at the District Court for the Eastern District of Virginia. Their argument is simple. The U.S. authorities failed to serve Megaupload as is required in a criminal case. Because of this failure and the fact that the company was effectively put out of business, Megaupload’s due process rights have been violated.
To claim a due process violation Megaupload has to shows that a liberty or property interest which has been interfered with by the State and that the procedures attendant upon that deprivation were constitutionally sufficient.
According to Megaupload’s lawyers this is certainly the case here.
“Both prongs of the procedural due process test are plainly met here. The Government has seized Megaupload’s property and domain name, ruined its reputation, and destroyed its business pursuant to an indictment which is fatally flawed as a jurisdictional matter. Megaupload now finds itself in a state of abeyance, with no end in sight,” they write.
“As a result of the Government’s inability to properly serve the summons on Megaupload, this Court lacks jurisdiction over the company. In the absence of effective service of process, criminal proceedings against Megaupload cannot commence, and as the Court has aptly noted, we ‘frankly don’t know that we are ever going to have a trial in this matter’.”
Megaupload’s legal team therefore concludes that, “Megaupload is thus deprived of any procedure to clear its name or recoup its property, in clear violation of its due process rights.”
The crucial issue in the motion to dismiss is that Megaupload was never served. The origin of this problem is not merely a matter of oversight. Megaupload’s lawyer Ira Rothken previously noted that unlike people, companies can’t be served outside US jurisdiction.
If this issue indeed prevents Megaupload from being tried in the US, it would be a blunder of epic proportions. And the fact that District Court Judge O’Grady previously acknowledged that this “issue” warrants further investigation, suggests that the motion filed by Megaupload could be the beginning of the end for the Megaupload case.