Today's Robin Hood

That bandwagon leaving town has Kim Dotcom on it, probably in manacles, leg irons and, for all we know, nipple clamps depending on the proclivities of the people who arrested him.

Millions of people who have never heard of him before are scrambling to don the Lincoln green and enlist themselves as his merry men. As far as casting goes, he would probably make a better Friar Tuck, yet the ability of multi-lateral policing to create heroes seemingly knows no bounds.

Like Julian Assange, Kim Schmitz has been largely complicit in his own fall. He is a self-professed (nay, self-acclaimed) hacker and has had several brushes with the law. Unfortunately, though, people who demand due legal process cannot always draw their clients from a cast of orphans, waifs and choirboys. The fact is that the legal assault on Schmitz has treated someone whose alleged crime is copyright infringement as though he were, at the very least, a drug kingpin.

This was an arrest targeted mainly at the press: if you can treat someone publicly enough as a criminal, you might be able to convince the world that he is a criminal: something which (by the way) may be very difficult indeed to prove at law.

The indictment rather cheeringly refers to the alleged criminals as the 'Mega Conspiracy', which sounds like something that falls beyond the remit of the U.S. Justice Department but for which Batman or his ilk would be the ideal investigators. The indictment then goes on to describe many felonious features of the Mega Conspiracy, many of which sound uncannily like the business habits of any other internet business: the use of advertising, the desire to push users onto premium accounts; reliance upon third-person links for dissemination and advertising etc. etc.

Often the claims in the indictment are largely unsupported: "the popularity of the infringing content on the Mega Sites has generated more than $25 million of advertising revenue for the Conspiracy". (Well, perhaps, but it remains to be demonstrated that it was the infringing content that brought to the site the traffic that generated those advertising revenues.)

Some of the Mega Conspiracy's practices may, however, look more questionable. Having struck a deal with copyright holders to provide an "Abuse Tool" (satirists, start your engines!), Megaupload agreed to suspend any links that accessed infringing material: in fact, however, most links terminated in common files that were not actually being deleted. Nor did the Mega Conspiracy kill other links that accessed the common file. The Mega Conspiracy (I'm going to keep typing that until it gets dull) thus created the illusion of complying with copyright holders while actually continuing to make the material available through alternative links. This may well prove to be (and here Sordel shall employ a metaphor wholly improper to the crimes under consideration) the smoking gun.

More interesting, though, are the endless emails cited in the indictment in which one thing becomes quite clear: however much the principals of the Mega Conspiracy were involved in a criminal activity, they certainly do not seem to have been conscious of being so. Certainly they were aware that there was a problem with hosting copyright material, and their habit seems to have been to comply with copyright holders to what they judged to be the minimal standard to establish cooperation for legal purposes.

The test of their strategy will certainly be the court case when they will advance the safe haven defence and the prosecutors will attempt to show that such a defence has been rendered null by their elevated awareness of the copyright infringement facilitated by their site.

Many onlookers will nonetheless share Sordel's concern at what amounts to commercial rough-housing being turned (not metaphorically but literally) into a federal case. I know that the "slippery slope" argument has been overused in an internet context but malicious prosecution should not be allowed to displace normal commercial litigation. Wouldn't the Justice Department's time and resources be better spent on turning criminals into convicts than in turning businessmen into criminals?