A US judge
has put a bomb under the Megaupload case by informing the FBI that a trial in
the United States may never happen. The cyberlocker was never formally served
with the appropriate paperwork by the US authorities, as it is impossible to
serve a foreign company with criminal charges.
The US
Government accuses Kim Dotcom and the rest of the “Mega Conspiracy” of running
a criminal operation.
Charges in
the indictment include engaging in a racketeering conspiracy, conspiring to
commit copyright infringement, conspiring to commit money laundering and two
substantive counts of criminal copyright infringement.
While the
prosecution is hoping to have Megaupload tried in the US, breaking news
suggests that this may never happen.
It turns
out that the US judge handling the case has serious doubts whether it will ever
go to trial due to a procedural error.
“I frankly
don’t know that we are ever going to have a trial in this matter,” Judge
O’Grady said as reported by the NZ Herald.
Judge
O’Grady informed the FBI that Megaupload was never served with criminal
charges, which is a requirement to start the trial. The origin of this problem
is not merely a matter of oversight. Megaupload’s lawyer Ira Rothken says that
unlike people, companies can’t be served outside US jurisdiction.
“My
understanding as to why they haven’t done that is because they can’t. We don’t
believe Megaupload can be served in a criminal matter because it is not located
within the jurisdiction of the United States,” Rothken says.
Megaupload’s
lawyer adds that he doesn’t understand why the US authorities weren’t aware of
this problem before. As a result Judge O’Grady noted that Megaupload is “kind
of hanging out there.”
If this
issue indeed prevents Megaupload from being tried in the US, it would be a
blunder of epic proportions. And it is not the first “procedural” mistake
either.
Last month
the New Zealand High Court declared the order used to seize Dotcom’s property
“null and void” after it was discovered that the police had acted under a court
order that should have never been granted.
The error
dates back to January when the police applied for the order granting them
permission to seize Dotcom’s property. Rather than applying for an interim
restraining order, the Police Commissioner applied for a foreign restraining
order instead.
The exact
ramifications of the failure to serve will become apparent in the near future.
Update:
Megaupload founder Kim Dotcom responds, and he’s not happy.
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