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Category > English Posted 16 Jun 2017 My Price 20.00

GENERAL ALLEGATIONS

GENERAL ALLEGATIONS
At all times relevant to this Indictment:
1. KIM DOTCOM, MEGAUPLOAD LIMITED, VESTOR LIMITED, FINN BATATO, JULIUS BENCKO, SVEN ECHTERNACH, MATHIAS ORTMANN, ANDRUS
NOMM, and BRAM VAN DER KOLK, the defendants, and others known and unknown to the
Grand Jury, were members of the “Mega Conspiracy,” a worldwide criminal organization whose
members engaged in criminal copyright infringement and money laundering on a massive scale
with estimated harm to copyright holders well in excess of $500,000,000 and reported income in
excess of $175,000,000.
2. Megaupload.com is a commercial website and service operated by the Mega Conspiracy that reproduces and distributes copies of popular copyrighted content over the
Internet without authorization. Since at least September 2005, Megaupload.com has been used
by the defendants and other members and associates of the Mega Conspiracy to willfully
reproduce and distribute many millions of infringing copies of copyrighted works, including
motion pictures, television programs, musical recordings, electronic books, images, video games,
and other computer software. Over the more than five years of its existence, the Mega
Conspiracy has aggressively expanded its operations into a large number of related Internet
businesses, which are connected directly to, or at least financially dependent upon, the criminal
conduct associated with Megaupload.com.
3. Megaupload.com was at one point in its history estimated to be the 13th most frequently visited website on the entire Internet. The site claims to have had more than one
billion visitors in its history, more than 180,000,000 registered users to date, an average of 2 50 million daily visits, and to account for approximately four percent of the total traffic on
the Internet.
4. Megaupload.com’s income comes primarily from two sources: premium subscriptions and online advertising. Premium subscriptions for Megaupload.com have been
available for online purchase for as little as a few dollars per day or as much as approximately
$260 for a lifetime. In exchange for payment, the Mega Conspiracy provides the fast
reproduction and distribution of infringing copies of copyrighted works from its computer
servers located around the world. Premium users of the site, a small percentage of the overall
user base, are able to download and upload files with few, if any, limitations. Subscription fees
collected during the existence of the Mega Conspiracy from premium users are estimated to be
more than $150 million. Online advertising on Megaupload.com and its associated websites,
which is heavily dependent on the popularity of copyright infringing content to attract website
visits, has further obtained more than $25 million for the Mega Conspiracy.
5. The financial proceeds of Megaupload.com have been primarily directed to four sources. First, the Conspiracy has directed the bulk of its revenues to the defendants, corporate
entities they control, other co-conspirators, and employees for their private financial gain.
Second, the Mega Conspiracy has spent millions of dollars developing and promoting
Megaupload.com and complementary Internet sites and services, such as Megavideo.com,
Megaclick.com, Megaporn.com, and a host of others (collectively the “Mega Sites”). Third, for
much of its operation, the Mega Conspiracy has offered an “Uploader Rewards” Program, which
promised premium subscribers transfers of cash and other financial incentives to upload popular
works, including copyrighted works, to computer servers under the Mega Conspiracy’s direct
control and for the Conspiracy’s ultimate financial benefit. The more popular content that was 3 present on Mega Conspiracy servers would increase the number of visitors and premium users
that the Conspiracy could monetize. In total, the Mega Conspiracy directly paid uploaders
millions of dollars through online payments. Fourth, the Mega Conspiracy spends millions of
dollars per month on the infrastructure supporting their businesses, including the leasing of
computers, hosting charges, and Internet bandwidth. In contrast to legitimate Internet
distributors of copyrighted content, Megaupload.com does not make any significant payments to
the copyright owners of the many thousands of works that are willfully reproduced and
distributed on the Mega Sites each and every day.
6. Any Internet user who goes to the Megaupload.com website can upload a computer file. Once that user has selected a file on their computer and clicks the “upload”
button, Megaupload.com reproduces the file on at least one computer server it controls and
provides the uploading user with a unique Uniform Resource Locator (“URL”) link that allows
anyone with the link to download the file. For example, a link distributed on December 3, 2006
by defendant DOTCOM (www.megaupload.com/?d=BY15XE3V) links to a musical recording
by U.S. recording artist “50 Cent.” A single click on the link accesses a Megaupload.com
download page that allows any Internet user to download a copy of the file from a computer
server that is controlled by the Mega Conspiracy.
7. Megaupload.com advertises itself as a “cyberlocker,” which is a private data storage provider. However, as part of the design of the service, the vast majority of
Megaupload.com users do not have significant capabilities to store private content long-term.
Unregistered anonymous users (referred to as “Non-Members” by the Conspiracy) are allowed to
upload and download content files, but any Non-Member-uploaded content that is not
downloaded within 21 days is permanently deleted. Similarly, registered free users (or 4 “Members”) are allowed to upload and download content files, but each uploaded file must be
downloaded every 90 days in order to remain on the system. Only premium users have a
realistic chance of having any private long-term storage, 1 since their files are not regularly
deleted due to non-use. In contrast, when any type of user on Megaupload.com uploads a copy
of a popular file that is repeatedly downloaded, including infringing copies of copyrighted works
available for download, that file remains on Mega Conspiracy-controlled computers and is
available for distribution by anyone who can locate an active link to the file.
8. Once a user clicks on a link, the user is generally brought to a download page for the file. The download page contains online advertisements provided by the Conspiracy, which
means that every download on Megaupload.com provides a financial gain to the Conspiracy that
is directly tied to the download. The more popular the content, such as copies of well-known
copyrighted works, the more users that find their way to a Megaupload.com download page; the
access of these additional users, in turn, makes the Mega Conspiracy more money. Because only
a small percentage of Megaupload.com users pay for their use of the systems, Mega
Conspiracy’s business strategy for advertising requires maximizing the number of online
downloads (i.e., distributions of content), which is also inconsistent with the concept of
private storage.
9. In addition to displaying online advertisements, the download pages on Megaupload.com are designed to increase premium subscriptions. All non-premium users are
encouraged to buy a premium subscription to decrease wait and download times, which can be at 1 Even then, all users are warned in Megaupload.com’s “Frequently Asked Questions” and
Terms of Service that they should not keep the sole copy of any file on Megaupload.com and that
users bear all risk of data loss. The Mega Conspiracy’s duty to retain any data for even a
premium user explicitly ends when either the premium subscription runs out or Megaupload.com
decides, at its sole discretion and without any required notice, to stop operating.
5 least an hour for popular content (and, for some periods of time, these users have been ineligible
to download files over a certain size). As a result, non-premium users are repeatedly asked by
the Conspiracy to pay for more and faster access to content on Megaupload.com. Users are also
prompted to view videos uploaded to Megaupload.com directly on a proprietary player designed
by the Conspiracy and offered through the Megavideo.com website and service. Users have also
been asked if they want to generate a new link to the downloading file and import it to their own
Megaupload.com accounts, which facilitates distribution that is again inconsistent with
private storage.
10. The content available from Megaupload.com is not searchable on the website, which allows the Mega Conspiracy to conceal the scope of its infringement. Instead of hosting a
search function on its own site, the Mega Conspiracy business model purposefully relies on
thousands of third party “linking” sites, which contain user-generated postings of links created
by Megaupload.com (as well as those created by other Mega Sites, including Megavideo.com
and Megaporn.com). While the Conspiracy may not operate these third party sites, the Mega
Conspiracy did provide financial incentives for premium users to post links on linking sites
through the “Uploader Rewards” program, which ensured widespread distribution of
Megaupload.com links throughout the Internet and an inventory of popular content on the Mega
Conspiracy’s computer servers. These linking sites, which are usually well organized and easy
to use, promote and direct users to Mega Conspiracy download pages that allow the reproduction
and distribution of infringing copies of copyrighted works.
11. Popular linking sites that contained Mega Conspiracy-generated links include: ninjavideo.net, megaupload.net, megarelease.net, kino.to, alluc.org, peliculasyonkis.com,
seriesyonkis.com, surfthechannel.com, taringa.net, thepiratecity.org, and mulinks.com. While 6 several of these websites exclusively offer Megaupload.com links, all maintained an index of
URL links to identified copies of copyrighted content that were stored on servers directly
controlled by the Mega Conspiracy.
12. The Mega Conspiracy closely monitors the traffic from linking sites to the Mega Sites and services. The Conspiracy is aware that linking sites generate a very high percentage of
the millions of visits to its websites and services each week and provide the Conspiracy direct
financial benefits through advertising revenue and opportunities for new premium subscriptions.
13. Members of the Mega Conspiracy have knowingly interacted with users of linking sites and visited the sites (and associated online forums) themselves. Specifically, some
of the defendants have instructed individual users how to locate links to infringing content on the
Mega Sites (including recommending specific linking websites). Several of the defendants have
also shared with each other comments from Mega Site users demonstrating that they have used
or are attempting to use the Mega Sites to get infringing copies of copyrighted content.
14. In contrast to the public who is required to significantly rely on third party indexes, members of the Conspiracy have full access to the listings of actual files that are stored
on their servers (as well as the Megaupload.com- and Megavideo.com- and Megaporn.comgenerated links to those files). Conspirators have searched the internal database for their
associates and themselves so that they may directly access copyright-infringing content on
servers leased by the Mega Conspiracy.
15. Though the public-facing Megaupload.com website itself does not allow searches, it does list its “Top 100 files”, which includes motion picture trailers and software trials that are
freely available on the Internet. The Top 100 list, however, does not actually portray the most 7 popular downloads on Megaupload.com, which makes the website appear more legitimate and
hides the popular copyright-infringing content that drives its revenue.
16. If a user uploads a video file to Megaupload.com, the user can utilize the provided URL link to redirect others to another Mega Conspiracy-controlled website, Megavideo.com,
where they can view the file using a “Flash” video player. Alternatively, a user who hosts a
personal or commercial website can embed the Megavideo.com player into their own website to
display the video file (and provide advertising content from the Mega Conspiracy).
Megavideo.com has been estimated to be as popular as the 52nd most frequently visited website
on the entire Internet.
17. A non-premium user is limited to watching 72 minutes of any given video on Megavideo.com at a time, which, since nearly all commercial motion pictures exceed that length,
provides a significant incentive for users who are seeking infringing copies of motion pictures to
pay the Mega Conspiracy a fee for premium access. Some premium users are, therefore, paying
the Mega Conspiracy directly for access to infringing copies of copyrighted works.
18. Before any video can be viewed on Megavideo.com, the user must view an advertisement. Originally, the Mega Conspiracy had contracted with companies such as
adBrite, Inc., Google AdSense, and PartyGaming plc for advertising. Currently, the
Conspiracy’s own advertising website, Megaclick.com, is used to set up advertising
campaigns on all the Mega Sites. The high traffic volume on the Conspiracy websites allows
the Conspiracy to charge advertisers up-front and at a higher rate than would be achieved by
the percentage-per-click methodology used by other popular Internet advertising companies.
The popularity of the infringing content on the Mega Sites has generated more than $25 million
in online advertising revenues for the Conspiracy. 8 19. Like Megaupload.com, Megavideo.com conceals many of the infringing copies of popular copyrighted videos that are available on and distributed by the site and the associated
service. Megavideo.com does purport to provide both browse and search functions, but any
user’s search on Megavideo.com for a full length copyrighted video (which can be downloaded
from a Mega Conspiracy-controlled server somewhere in the world) will not produce any results.
Similarly, browsing the front page of Megavideo.com does not show any obviously infringing
copies of any copyrighted works; instead, the page contains videos of news stories, usergenerated videos, and general Internet videos in a manner substantially similar to Youtube.com. 2
Browsing the most-viewed videos in the Entertainment category on Megavideo.com,
however, has at times revealed a number of infringing copies of copyrighted works that are
available from Mega Conspiracy-controlled servers and are amongst the most viewed materials
being offered.
20. Members of the Conspiracy have publicly stated that they operate the Mega Sites in compliance with the notice and takedown provisions of the Digital Millennium Copyright
Act (“DMCA”), codified at Title 17, United States Code, Section 512, despite the fact that they
are violating its provisions. Internet providers gain a safe harbor under the DMCA from civil
copyright infringement suits in the United States if they meet certain criteria. The members of
Mega Conspiracy do not meet these criteria 3 because they are willfully infringing copyrights
themselves on these systems; have actual knowledge that the materials on their systems are
2 Members of the Mega Conspiracy purposefully copied content directly from Youtube.com in
order to populate Megavideo.com’s content servers.
3 Furthermore, the safe harbor requires that an eligible provider have an agent designated with
the U.S. Copyright Office to receive infringement notices; despite having millions of users in the
United States since at least the beginning of the Conspiracy, the Conspiracy did not designate
such an agent until October 15, 2009, years after Megaupload.com and many of its associated
sites had been operating and the DMCA had gone into effect.
9 infringing (or alternatively know facts or circumstances that would make infringing material
apparent); receive a financial benefit directly attributable to copyright-infringing activity where
the provider can control that activity; and have not removed, or disabled access to, known
copyright infringing material from servers they control.
21. Members of the Mega Conspiracy negotiated the use of an “Abuse Tool” with some major U.S. copyright holders to purportedly remove copyright-infringing material from
Mega Conspiracy-controlled servers. The Abuse Tool allowed copyright holders to enter
specific URL links to copyright infringing content of which they were aware, and they were
told by the Conspiracy that the Mega Conspiracy’s systems would then remove, or disable
access to, the material from computer servers the Conspiracy controls. The Mega Conspiracy’s
Abuse Tool did not actually function as a DMCA compliance tool as the copyright owners were
led to believe.
22. When a file is being uploaded to Megaupload.com, the Conspiracy’s automated system calculates a unique identifier for the file (called a “MD5 hash”) that is generated using a
mathematical algorithm. If, after the MD5 hash calculation, the system determines that the
uploading file already exists on a server controlled by the Mega Conspiracy, Megaupload.com
does not reproduce a second copy of the file on that server. Instead, the system provides a new
and unique URL link to the new user that is pointed to the original file already present on the
server. If there is more than one URL link to a file, then any attempt by the copyright holder to
terminate access to the file using the Abuse Tool or other DMCA takedown request will fail
because the additional access links will continue to be available.
23. The infringing copy of the copyrighted work, therefore, remains on the Conspiracy’s systems (and accessible to at least one member of the public) as long as a single 10 link remains unknown to the copyright holder. The Conspiracy’s internal reference database
tracks the links that have been generated by the system, but duplicative links to infringing
materials are neither disclosed to copyright holders, nor are they automatically deleted when a
copyright holder either uses the Abuse Tool or makes a standard DMCA copyright infringement
takedown request. During the course of the Conspiracy, the Mega Conspiracy has received
many millions of requests (through the Abuse Tool and otherwise) to remove infringing copies
of copyrighted works and yet the Conspiracy has, at best, only deleted the particular URL of
which the copyright holder complained, and purposefully left the actual infringing copy of the
copyrighted work on the Mega Conspiracy-controlled server and any other access links
completely intact.
24. In addition to copyrighted files, other types of illicit content have been uploaded onto the Megaupload.com servers, including child pornography and terrorism propaganda
videos. Members of the Conspiracy have indicated to each other that they can automatically
identify and delete such materials on all of their servers by calculating MD5 hash values of
known child pornography or other illicit content, searching the system for these values, and
eliminating them; in fact, such files with matching hash values have been deleted from the Mega
Conspiracy’s servers. Members of the Mega Conspiracy have failed to implement a similar
program to actually delete or terminate access to copyright infringing content.
25. On or about June 24, 2010, members of the Mega Conspiracy were informed, pursuant to a criminal search warrant from the U.S. District Court for the Eastern District of
Virginia, that thirty-nine infringing copies of copyrighted motion pictures were present on their
leased servers at Carpathia Hosting, a hosting company headquartered in the Eastern District of
Virginia. A member of the Mega Conspiracy informed several of his co-conspirators at that time 11 that he located the named files using internal searches of their systems. As of November 18,
2011, more than a year later, thirty-six of the thirty-nine infringing motion pictures were still
being stored on the servers controlled by the Mega Conspiracy.
26. At all times relevant to this Indictment, the defendants and other members of the Mega Conspiracy knew that they did not have license, permission, authorization, or other
authority from owners of hundreds of thousands of copyrighted works to reproduce and
distribute those works, including making them available over the Internet. Members of the Mega
Conspiracy are aware of the way that their sites are actually used by others; have themselves
used the systems to upload, as well as reproduce and distribute, infringing copies of copyrighted
content; and are aware that they have financially benefitted directly from the infringement of
copyrighted works that they are in a position to control.
27. In addition to Megaupload.com, Megavideo.com, and Megaclick.com, the other websites created and domains owned by the Mega Conspiracy include: Megaworld.com;
Megalive.com; Megapix.com; Megacar.com; Megafund.com; Megakey.com; Megaking.com;
Megahelp.com; Megagogo.com; Megamovie.com; Megaporn.com; Megabackup.com;
Megapay.com; Megabox.com; and Megabest.com. Several of these additional sites have also
hosted infringing copies of copyrighted works. The websites and services, as well as the
domains themselves, have been facilitated and promoted by illicit proceeds from the operations
of Megaupload.com, Megavideo.com, and Megaclick.com.
28. In addition to MEGAUPLOAD LIMITED, VESTOR LIMITED, Megamedia Limited, Megavideo Limited, Megarotic Limited, Megapix Limited, Kingdom International
Ventures Limited, Netplus International Limited LLC, Basemax International Limited, and
Mindpoint International Limited LLC, the following companies and entities have facilitated and 12 promoted the Mega Conspiracy’s operations: Kimvestor Limited; Trendax Limited; Monkey
Limited; Kimpire Limited; A Limited; N1 Limited; RNK Media Company; Megapay Limited;
Megamusic Limited; Finn Batato Kommunikation; Mega Services Europe Ltd.; Megateam
Limited; Megastuff Limited; Megacard Inc.; Megasite Inc.; Seventures Limited; SECtravel; and
Bramos B.V. In addition, the creation and operation of these companies and entities has been
facilitated and promoted by illicit proceeds from the operations of the Mega Conspiracy.
THE DEFENDANTS
29. KIM DOTCOM, who has also been known as KIM SCHMITZ and KIM TIM JIM VESTOR, is a resident of both Hong Kong and New Zealand, and a dual citizen of Finland
and Germany. DOTCOM is the founder of MEGAUPLOAD LIMITED (“MUL”) and
Megamedia Limited (“MMG”). Until on or about August 14, 2011, DOTCOM was the Chief
Executive Officer for MUL, and he is currently MUL’s Chief Innovation Officer. As the head of
the Mega Conspiracy, DOTCOM employs more than 30 people residing in approximately nine
countries. From the onset of the Mega Conspiracy through to the present, DOTCOM has
supervised the development of the websites and companies utilized in the Mega Conspiracy.
DOTCOM directed the creation of the network infrastructure behind the Mega Conspiracy
websites, negotiated contracts with Internet Service Providers and advertisers, administered the
domain names used by the Mega Conspiracy, and exercises ultimate control over all decisions in
the Mega Conspiracy. DOTCOM has arranged millions of dollars in payments for the computer
servers utilized by the MUL and MMG properties around the world, and has also distributed
proceeds of the Conspiracy to his co-conspirators. DOTCOM is the director and sole
shareholder of both VESTOR LIMITED and Kingdom International Ventures Limited, which
have been used to hold his ownership interests in MUL- and MMG- related properties; for
13 example, DOTCOM owns approximately 68% of Megaupload.com, Megaclick.com, and
Megapix.com, and 100% of the registered companies behind Megavideo.com, Megaporn.com,
and Megapay.com, through VESTOR LIMITED. DOTCOM has personally distributed a link to
a copy of a copyrighted work on, and has received at least one infringing copy of a copyrighted
work from, the Mega Sites. Additionally, on numerous instances, DOTCOM received DMCA
copyright infringement takedown notices from third-party companies. In calendar year 2010
alone, DOTCOM received more than $42 million from the Mega Conspiracy.
30. MEGAUPLOAD LIMITED is the registered owner of Megaupload.com, the primary website operated by the Mega Conspiracy, and Megaclick.com, a site that offers
advertising associated with Mega Conspiracy properties. MUL is a registered company in Hong
Kong with a registry number of 0835149. MUL has a number of bank accounts in Hong Kong
that have been used to facilitate the operations of the Mega Conspiracy. DOTCOM, in addition
to holding the title of Chief Executive Officer of MUL until as recently as August 2011, owns,
through VESTOR LIMITED, approximately 68% of the shares of MUL; MATHIAS
ORTMANN, through Netplus International Limited LLC, owns an additional 25%; JULIU...

 

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