MegaUpload's attorneys have asked a federal court to toss out the criminal copyright charges brought against the company, arguing that the United States simply has no jurisdiction over the Hong Kong-based cloud-storage service.
"Megaupload does not have an office in the United States, nor has it had one previously," MegaUpload's lawyers wrote in their motion to dismiss. "Service of a criminal summons on Megaupload is therefore impossible."
MegaUpload filed its motion today with the District Court for the Eastern District of Virginia, the court overseeing the U.S. government's case against the company, MegaUpload founder Kim DotCom, as well as five others connected to the company.
The U.S. Attorney's office has accused DotCom and the other defendants with operating a thinly veiled piracy service. MegaUpload's managers allegedly enriched themselves by encouraging users to make illegal copies of movies, music, and software and then store that material on the company's servers. DotCom and the other defendants deny that and say they oversaw a legitimate operation, one that offered people a means to store digital files. The company said that it can't be held legally responsible for the copyright infringement committed by users.
At the heart of today's filing is MegaUpload's assertion that it never operated a U.S. office. Lawyers for the company argued that Federal Rules of Criminal Procedure are very clear about how to serve a criminal summons on a U.S. company, but they don't "contemplate service of a criminal summons on a wholly foreign corporation without an agent or offices in the United States," MegaUpload wrote to the court.
"Wholly foreign corporations, therefore, may not be prosecuted for alleged violations of federal criminal law unless they waive service," MegaUpload argued in its filing. "In short, a corporation such as Megaupload cannot be brought within the jurisdiction of this court for criminal proceedings absent its consent."
A spokesman for the U.S. attorney for the Eastern District of Virginia, the man who filed the charges against MegaUpload, said via e-mail: "We'll respond at the appropriate time in court."
The company's lawyers also asked that the court release funds to enable the company to pay for a defense. The U.S. government is trying to extradite DotCom and the other defendants so they can stand trial in this country. DotCom and three other managers reside in New Zealand and are fighting extradition.
"We told the court that the United States lacked probable cause to take down the entire site," said Ira Rothken, the attorney leading MegaUpload's worldwide defense. "It would have to hold the company criminally responsible for the acts of copyright infringement committed by its users. And there is no such thing as criminal secondary copyright infringement."
More to come