01/21/2012 06:08 pm ET Updated Mar 22, 2012

Rule of Law? Not for Megaupload! Paging Prof. John Yoo!

I think both parties should be discussing the Obama Administration's recent failed attempt to replace Attorney General Eric Holder with Prof. John Yoo. Has everyone read of this attempt to remake the Justice Department in a manner which would have been extreme even for the Bush Administration? ... No, because as a technical matter it hasn't happened. However, as a result of the criminal prosecution of principals of Megaupload for alleged copyright infringement, we see a trampling on the rule of law to extent which is unprecedented and frightening.

I'm sure most readers are familiar with the vilification and attempt to impose sanctions on Prof. Yoo as a result of his conclusion, while in the DOJ that aggressive interrogation of captured alleged terrorists were legally permissible. Whether he was right or wrong, two things are clear about his analysis: First, it was undertaken in an effort to save American lives from being lost in a reprise of the 9/11 events, and second, it was pursuant to an effort to bring to justice those who murdered thousands of Americans on 9/11.

What we see in the prosecution of the Megaupload principals has neither of those virtues to commend it and seems to involve a flagrant disregard for American law which should concern all who value their liberty. Rather than saving American lives, it appears to be an effort to save American ... copyrights! Or is it actually an effort to keep campaign contributions flowing from supposedly liberal-leaning Hollywood moguls?

In the first instance, the actions giving rise to the prosecution have only a tenuous connection to America. Arrests were made in New Zealand of persons residing there, and apparently never having set foot in America. Their company was run out of New Zealand and Hong Kong, and apparently has a leasehold interest in some servers in Virginia as its only connection to America. Allowing such prosecution to go forward in American criminal courts for persons and events having so little to do with America goes way beyond anything proposed by Prof. Yoo or Alberto Gonzalez, and is a chilling assertion of American dominance. Recall the furor led by President Obama and his team over 'rendition' of al Quaeda operatives to Gitmo. It appears that they view copyright infringers in a different light than those that even they seek to prosecute for murder in criminal courts.

Equally fundamental to the analysis is that it is far from clear that any of these principals or their company would even be civilly -- let alone criminally -- liable even if they resided in the US and all events occurred here. American courts have grappled with legal (mainly civil) responsibility for services which permit or even facilitate copyright infringement with respect to digital movies and music such as that at issue here since the formation of Napster.

In a 2005 case involving Grokster, the U.S. Supreme Court made clear that the mere use of such a service by someone who infringes a copyright does not subject the service to liability. Rather, liability shall attach only in the case of "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, [who] is liable for the resulting acts of infringement by third parties." In Grokster, the Court found written evidence of the defendant's express goal being "to get in trouble with the law and get sued" which is the "best way to get in the new[s]". While such evidence may yet emerge as to Megaupload, it is not yet clear that it exists, and was apparently not mentioned in the indictment. Even if it does exist, it is not clear that it would support criminal prosecution.

Moreover, the Court relied upon its decision in the Sony Betamax case to make clear that even if a device is used for infringement, it is permissible if it has other material bona fide legitimate uses.

More recently, lower federal courts have made clear that a mere general knowledge of a service operator that its service is being used for infringement does not support civil liability, absent such knowledge in a particular case, at least where the operator has made good faith efforts to prevent such activity. In a case involving YouTube and Viacom, which is currently on appeal, the District Judge held that "mere knowledge of such [infringing] activity in general is not enough." Very recently, a California District Judge came to the same conclusion in a case involving the Veoh service.

Perhaps civil claims against the Mega defendants would be appropriate in New Zealand courts, or first in American courts for enforcement there. It is highly unclear if the defendants did anything to show respect for copyrights, and this may well be a subject for civil litigation brought by copyright owners somewhere, possibly even in the U.S. Their business model, with its incentives for users to upload files for financial gain, may well be of the sort condemned by the Supreme Court in Grokster. However, forcing their arrest and pursuing their extradition to the U.S. to stand criminal trial when they have unquestionably done no physical harm to anyone in the U.S. is in a much different category. This is action which is inexplicable for those who proclaim their fealty to the rule of law, even when it interferes with the protection of the physical security of Americans.

It's time for our president and attorney general to demonstrate their commitment to the rule of law for everyone... not just those with different political persuasions. If they don't, Prof. Yoo will blush... and Americans should demand more respect for their own freedoms.