Specific knowledge important in considering legality of Mega website
The new Mega website fronted by Kim Dotcom appears to have been set up to ensure that Mega does not have specific knowledge of the information which is being stored or shared, intellectual property lawyer Clive Elliott says.
Mr Elliott, who is convenor of the New Zealand Law Society’s Intellectual Property Law committee, says knowledge is a key aspect in any consideration of the legality of Mega.
“The Mega service is an API – applications programming interface – which is said to provide ‘user-friendly could storage with security and privacy’,” he says. “Two important points arise from this when looking at whether the service is legal.”
Mega is seeking cloud storage partners, provided they are located outside the United States.
“The plan is to store data on servers run by third parties, thereby stepping back and largely farming out this role. It also means that, arguably, the US authorities would have to take any legal action outside their own jurisdiction. As can be seen with the extradition proceedings, this would add a whole range of complexities to any potential proceedings.”
All Mega users will automatically obtain a unique and randomly generated encryption key, Mr Elliott says.
“This means that the user alone will have access to that information. They alone will be able to decide what to store and what to share and how. This is another way in which Mega is purporting to step back from the process.
“On the face of it, Mega will not have first-hand knowledge of what is being stored or shared by its partners or customers or any intermediaries.”
Mega will still need to remove any infringing material from its site.
Mr Elliott says that if and when content owners draw offending material to Mega’s attention, its “no need or wish to know” policy will no longer shield it from liability or attract safe harbour immunity.
Contact: For further information please contact Clive Elliott, convenor of the New Zealand Law Society’s Intellectual Property committee. Clive is available on (021) 389 121 or through Shortland Chambers where he works on (09) 307 9808.
