Government trying to deny Megaupload fair legal representation

By Timothy B. Lee

The United States government has adopted a take-no-prisoners attitude in its prosecution of Megaupload, seeming to raise every conceivable objection to Megaupload's efforts to defend itself. We've already covered the government's attempts to block Megaupload from spending money to preserve servers that the company says contains data needed for its defense.

Now, the government has adopted a new tactic: making it as difficult as possible for Megaupload to obtain legal counsel. The prominent law firm of Quinn Emanuel Urquhart and Sullivan has sought permission to represent Megaupload in the case. But in a legal document filed on Wednesday, the government raised several objections to freeing up money to allow the law firm to represent Megaupload in court.

As Quinn Emanuel noted in a Thursday response, the government's objections are so broad that they would effectively prevent Megaupload from hiring any lawyer with experience litigating major copyright cases. Indeed, they could could make it impossible to hire any lawyer at all. It's hard to see how Megaupload could get a fair trial if the government's objections are sustained by the court.
Lawyers cost money

When the government shut down Megaupload's servers and arrested its top officials, it also froze the assets of Megaupload and its founder, Kim Dotcom. Lawyers generally don't work for free, so Megaupload needs some of its assets unfrozen to cover its legal costs.

But the government not only objects to releasing funds for Megaupload's defense, it argues it's such a clear case that Quinn Emanuel lawyers shouldn't even get the opportunity to make their argument to the judge.

The New Zealand courts have authorized Kim Dotcom to withdraw tens of thousands of dollars to cover his living expenses while they decide on his extradition case. The US government argues that these funds give Kim Dotcom and Megaupload plenty of money to pay for legal representation.

"It will be a high hurdle to prove that an individual with a monthly income of $48,000 USD for at least the next seven and a half months, and a monthly income of at least $16,000 USD thereafter, is prevented from retaining competent defense counsel?even if such funds prove insufficient to pay Quinn Emanuel's billing rates," the government argues in its brief.

But as Quinn Emanuel points out in its reply, the New Zealand court specifically earmarked the money for living expenses, not legal fees. More importantly, Megaupload is a legally distinct entity from Dotcom, and it has no funds with which to pay its legal bills. Also, while $16,000 per month might be plenty of money for a typical criminal trial, this is not a typical case. Megaupload's defense is likely to require computer forensics, expert witnesses, and attorneys with in-depth copyright expertise. Those don't come cheap.
No copyright lawyers?

The government also objects to the selection of Quinn Emanuel due to conflict-of-interest problems. The firm has extensive experience handling copyright cases, and its past clients include Disney, Paramount, Time Warner, Fox, and Intuit. All of these firms have allegedly had their products illegally distributed on Megaupload. Quinn Emanuel has also counted YouTube as a client, and Megaupload is alleged to have illegally scraped YouTube movies for posting on Megaupload. The government said it planned to call Google?another Quinn Emanuel client?as a witness because Google once cut Megaupload off from using its AdSense advertising network due to copyright concerns.

The government describes all of these companies as victims of Megaupload, and suggests that Quinn Emanuel can't fairly represent Megaupload given its ties to them. "It would be inappropriate to permit Defense Counsel to enter even a limited appearance without first fully investigating and resolving these potential conflicts," the government argues.

In its reply, Quinn Emanuel points out this broad interpretation of conflict-of-interest rules would prevent Megaupload from retaining almost any law firm with experience in copyright matters. After all, firms that specialize in copyright law regularly accept major content companies as clients, and Megaupload's servers likely contain content from the majority of those firms. So the government's broad interpretation of the conflict of interest rules would effectively mean that Megaupload can't have a lawyer with experience litigating copyright cases.

In any event, conflict-of-interest rules are supposed to protect Megaupload. Quinn Emanuel says Dotcom and Megaupload are willing to have Quinn Emanuel represent them despite these supposed conflicts.
"Empty promises"

The government raises several other objections. It argues that because Dotcom is fighting extradition, he is a "fugitive from justice" and not entitled to be represented in US courts until the extradition fight is over. And the government complains that it would be too confusing to have to deal simultaneously with two different Dotcom legal teams?one in the United States and the other in New Zealand.

Quinn Emanuel sums up Megaupload's plight in its brief:
[Megaupload] has constitutional rights to due process and to the advice of counsel. Yet, if the Government is to have its way in this case, the only lawyers before the Court will be those representing the Government. If the Government is to have its way, the only evidence available to the Court would be that cherry-picked by the Government, for the Government, from the universe of relevant servers slated to be wiped. If the Government is to have its way, in sum, Megaupload will never get its day in Court and the case will effectively be over before it has even begun. Megaupload's fate will have been sealed by virtue of an indictment and corresponding asset freeze executed without the benefit of any adversarial proceeding or opportunity to be heard. Megaupload's constitutional rights to contest the charges against it in a fair proceeding would be rendered worse than nugatory; they would be transformed into empty promises.

And that would be a serious problem. Megaupload may ultimately be found guilty of the charges against it. But until a jury rules on the case, the courts need to presume Megaupload is innocent and give the company a fair opportunity to defend itself.

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