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evidence they have in gratuitous detail”. He wrote: “Note, for example, the multiple quotations of seemingly incriminating emails in this indictment, recited on the pretext that sending the email was an overt act (needed to prove a conspiracy charge).”

The “overt act” is a critical part of proving a conspiracy, which was the series of criminal charges laid by the FBI to bind the Megaupload group together. White quoted the model jury instructions describing how an “overt act” showed how “one becomes a member of a conspiracy by willfully participating in the unlawful plan”. The participation is shown through acts, lawful or not, which reveal “there was a plan to commit at least one of the crimes alleged in the indictment”. For this reason, prosecutors used excerpts from email after email, quoting phrases such as “we’re just providing shipping services to pirates”, apparently as a means of illustrating an “overt act”. White raised a question over why it was done — and his answer was simply that “it makes for good press”. “It’s an avenue for providing many factual details to reporters without running afoul of such modest limits on press communications as the courts and (Department of Justice) rules impose.”

If it was a deliberate technique, then it was amplified by the language used in the indictment. The document made for gripping reading, saying the men named in it were were members of a “worldwide criminal organisation”, dubbed by the FBI a “Mega Conspiracy”, which had carried out criminal copyright infringement and money laundering on “a massive scale”. The catchy phrase “Mega Conspiracy” is littered through the legal document, although it hasn’t any obvious foundation other than being something made up by the FBI to describe the group.

The FBI said they had also tracked the replication by Megaupload of files held on YouTube, the great mainstream and United States-owned video clearing house. In April 2006, according to the FBI, “members of the Conspiracy reproduced copyrighted works directly from third-party websites, including from YouTube.com, to make them available for reproduction and distribution on Megavideo.com”.

Van der Kolk: “Hope [Youtube.com is] not implementing a
fraud detection system now . . . *praying*.”

Ortmann: “Even if they did, the usefulness of their non-
popular videos as a jumpstart for Megavideo is limited, in my
opinion.”

Van der Kolk: “Well we only have 30% of their videos yet
. . . In my opinion it’s nice to have everything so we can decide
and brainstorm later how we’re going to benefit from it.”

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