Court: Megaupload’s Failing Drives Can Be Fixed, But Not Accessed

The sixteen failing hard drives containing Megaupload data at hosting provider Cogent can be restored and preserved. The court has granted the MPAA and RIAA's version of the preservation order, meaning that no person will be able to access the data without permission. Megaupload is disappointed that it's still unable to freely access the evidence and fears that it won't get a fair trial.

After Megaupload was shut down more than five years ago, data from hundreds of the site’s servers were put in storage by several hosting facilities, Cogent included.

While the original machines are no longer intact, the company has backed up all data which it will keep in storage pending the various lawsuits against Megaupload and its former employees.

However, as time has dragged on, the condition of the hard drives has significantly deteriorated. Last year, Cogent first warned that sixteen of them have actually become unreadable.

Over the past months the MPAA, RIAA and Megaupload have worked on a mutual agreement to secure the data. This is important because of the pending civil and criminal lawsuits, where the information could be used as vital evidence.

Earlier this month the MPAA and RIAA submitted nearly identical filings, asking the court for a preservation order. The rightsholder groups informed the court that they had reached an agreement with Megaupload on “nearly all” terms of the restoration and backup process, to be carried out by the independent forensics company DriveSavers.

A few days ago Megaupload replied that they indeed agree to the backup and preservation procedure. However, the order proposed by the rightsholders would also prevent Megaupload from accessing its data afterward, which they see as a violation of their constitutional rights.

Megaupload, therefore, submitted a revised version of the preservation order specifying that it can access the data, but for litigation purposes only. If the MPAA or RIAA disagree, they can then share their concerns with the court on a case by case basis.

After hearing both arguments, District Court Judge Liam O’grady chose to side with the rightsholders, siging their version of the preservation order (pdf).

This means that after months of negotiating the failing drives can finally be repaired and preserved. However, when that process is complete no party will be able to access the files, Megaupload included.

“Once the drives and devices have been returned to Cogent’s custody and stored in Cogent’s facility, no person […] shall have access to those drives and devices, or to the data contained on those drives and devices, absent further order from this Court,” the order reads.

The data, and thus the evidence, can only be accessed with permission from the court. While the MPAA and RIAA will be pleased with the ruling, Megaupload is not.

“We are disappointed that the court is still preventing Megaupload from accessing its own server data to independently preserve and use in its own defense,” Megaupload’s counsel Ira Rothken tells TorrentFreak.

The good news, for Megaupload, is that they don’t have to pay for the data preservation. The MPAA and RIAA both agreed to share the cost associated with it and will pick up the full tab.

“We are pleased that the parties that contributed to the Megaupload data loss, by objecting in 2012 to Megaupload’s efforts to access and preserve its own data, are now paying for its recovery,” Megaupload’s counsel says.

“We are also pleased that the Court approved DriveSavers, a world class data recovery firm, as the vendor to handle data restoration,” Rothken adds.

As things stand now it could take years before a trial gets underway, so this is likely not the last time we hear about the data issue. In this regard, Megaupload is also disappointed in the US Government.

The authorities previously prevented the file-hosting service from accessing the files that are hosted at Carpathia. The US Government made backups of the data it wants to use as evidence, but repeatedly prevented Megaupload from doing the same.

“The US after bringing the largest criminal copyright in history is dead set on making sure that Megaupload and the other defendants cannot have access to the evidence they need to defend themselves,” Rothken tells us.

All in all, Megaupload’s counsel is still concerned that Kim Dotcom and the other defendants will not get a fair trial in the United States.

Rothken worries that other data, including the files stored at Carpathia, could become unreadable as well in the future, noting that this could have been prevented if they were allowed preserve it themselves in 2012.

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