The crux of the Dotcom case?

Dotcom case: It’s not over yet at NZ Herald may have highlighted one of the key aspects of the Dotcom extradition case.

Dotcom and his co-accused – Mathias Ortmann, Bram van der Kolk and Finn Batato – strenuously denied the allegations of copyright infringement, money laundering, racketeering and wire fraud.

But Judge Nevin Dawson, who heard the case over nine weeks in the Auckland District Court, ruled yesterday that there was a case to answer in the US.

There was an “overwhelming preponderance of evidence” presented by the Crown on behalf of the US Government, he said.

Judge Dawson was quick to dismiss Dotcom’s claims Hollywood influenced American politicians to have him dragged before the court.

“In essence, [Dotcom] is alleging the US movie studios have used credit they have built up with the Democrat Party administration in the USA to have him extradited from New Zealand to face prosecution in the USA,” the judge said in his 270-page judgment.

“He submits that the prosecution of him has a political motive and this court should use its discretion to stop his surrender for extradition.”

Judge Dawson said the case against the defendants saw copyright holders claiming $175 million in losses.

“That Mr Dotcom has a different point of view about the use of the internet from others, including the US movie studios, does not have the hallmarks of what is ordinarily regarded as political persecution for political beliefs. It is a difference of opinion about a business matter, the use of the internet and the application of copyright law,” he said.

That may be the crux of the inevitable appeal – a different point of view  about a business matter, the use of the internet and the application of copyright law.

The full relevant paragraphs of Judge Dawson’s ruling:

[695] Mr Dotcom through his counsel’s submissions and his affidavit filed in support of his evidence during the hearing of the stay application during this hearing, alleges that the United States movie studios provide very large sums of money to the Democrat and Republican political parties, and to the Democrat Party in particular. The present President of the United States of America is a Democrat. He alleges that highly placed US movie studio executives have often met with highly placed US politicians, including the Vice President of the United States of America, Mr Joe Biden. He says that his views on the use of the internet and its future use is very different from the views of the US movie studios and he is being attacked by them because of his views. In essence he is alleging the US movie studios have used credit they have built up with the Democrat Party administration in the USA to have him extradited from New Zealand to face prosecution in the USA. He submits that the prosecution of him has a political motive and this Court should use its discretion to stop his surrender for extradition.

[696] The primary application which is the subject of this hearing has already been found to have a legal basis as a prima facie case has been established by the applicant. The charges are not trivial in nature pursuant to s 8(1)(a) as they allegeserious misconduct involving approximately US$175 million claimed to be lost by 270 the copyright owners. As a prima facie case exists, it is proper that the copyright owners should be heard at trial.

[697] That Mr Dotcom has a different point of view about the use of the internet from others including the US movie studios does not have the hallmarks of what is ordinarily regarded as political persecution for political beliefs. It is a difference of opinion about a business matter, the use of the internet and the application of copyright law. There is a prima facie case providing a legal basis for his extradition for these issues to be heard at trial. There is therefore no basis for finding the first respondent not eligible for surrender based upon either sections 7 or 8 of the Act.

http://www.courtsofnz.govt.nz/from/decisions/judgments

David Farrar has some interesting quotes at Kiwiblog: The 271 page Dotcom judgment

Leave a comment

24 Comments

  1. I now understand why the Left in NZ support KDC so much regardless of the fact he is a ruthless business intent on accumulating “obscene” [trademark far Left activists and social justice warriors] amounts of profit.

    Property after all is Theft so KDC having allegedly breach copyright in this manner is fine as it is in accordance with the Property is Theft slogan.

    Oh and also that lovely campaigning money might have something to do with it

    KDC trying to make this political is just angling for refugee status under the old political persecution entry criteria.

    If you are so sure you did zip wrong KDC head on over to the US of A and face up to your accusers…

    Reply
    • kittycatkin

       /  24th December 2015

      Yes-why is he spending so much time, money and effort to avoid being in a position to clear himself ?

      Refugee status ? Yeah, right. If he believes that he’s being persecuted by the NZ government, why would he want to stay, anyway ? Or have I missed something ? I haven’t followed it closely at all, as I lost interest ages ago.

      Reply
    • Blazer

       /  26th December 2015

      refer to Lord Conrad Black on your chances in U.S courts!

      Reply
  2. I haven’t followed the case very closely and so probably shouldn’t comment. But what the hell, naivety hasn’t stopped me before. The crux of the matter does seem to me to be –

    “a difference of opinion about a business matter, the use of the internet and the application of copyright law,”

    The argument I’m hearing repeatedly – on and off blog – is that this is essentially a civil rather than criminal matter and hence not subject to extradition as such. Criminal charges had to be included to make the case extradictable and this is where the US and NZ governments’ activities begin to look dubious.

    Read some interesting posts and links about it over at the Standard this morning.
    I’d like to hear more opinions and learn more about it all.

    Reply
    • Kevin

       /  24th December 2015

      The case involves charges of criminal copyright hence why it’s a criminal case. It’s all explained very clearly in the judge’s decision. Essentially businesses like megaupload are immune from prosecution if they can show they had mechanisms in place to effectively deal with copyrighted material (like Youtube does). Megaupload didn’t hence the charges.

      Reply
      • Alan Wilkinson

         /  24th December 2015

        That is not the point. The point is that copyright infringement is not an extradictable offence. At least that is my understanding.

        Reply
        • Kevin

           /  24th December 2015

          Copyright infringement may not be an indictable offence, in fact it’s not even a criminal offence, but criminal copyright infringement is an indictable offence. In this instance not only are there facts to show that megaupload’s takedown tool was just one massive fraud, but there are also facts to show that megaupload actively participated in copyright infringement by not only uploading copyrighted movies themselves, but also leeching copyrighted videos from YouTube.

          Reply
      • Jeeves

         /  24th December 2015

        No- I Think he did have exactly what was required- ie- a mechanism whereby copyright holders could alert him to breaches and then those offending files would be deleted- on that score I think (he thought) he was untouchable- but it seems pretty obvious that obeying the rules was no obstacle to breaking them- so they’ve got him prima facie on conversations in emails, and the sheer volume of breaches when compared to the paltry amount deleted- not to mention the glaringly obvious rewards scheme he ran for his main uploaders.

        I guess it was a major, although valid – business risk ,to interpret his role in the mass infringement of copyright as one of a passive ‘taximan’, ‘courier’, or ‘postman’ simply delivering the goods as instructed- and turning a blind eye to their origins etc.
        He did not infringe copyright afterall- but instead of treating mega like a corporate with a difference of opinion — they’ve thrown racketeering/wire fraud/ the whole criminal gamut at him, which led to our Keystone Cops abseiling down his mansion walls in the early hours like the FBI gimps they are.

        Possibly not the fairytale ending he was wishing for.

        Reply
        • Kevin

           /  24th December 2015

          There’s at least one example of a megaupload directory personally uploading a copyrighted file in the judges’s decision (search for “Taken”).

          The stuff about the mega’s takedown tool is interesting. Basically it just removed links to the offending file but not the offending file itself. Mega’s defence was that it couldn’t delete the file because it could be a file that the person who uploaded it had the rights to upload. For example if I buy say a digital item under certain circumstances I have the right to have a backup file somewhere so long as it’s made only for backup purposes etc. Anyway, this defence is addressed by the judge in his decision and ultimately thrown out.

          Reply
  3. Kevin

     /  24th December 2015

    Just to be clear you don’t actually believe that the judge’s decision was political?

    Reply
    • Okay, I provisionally accept your assertion of the legal/illegal difference.
      Political influence? I don’t know Kevin. I really am on a steep learning curve here. From some things I saw over at the Standard, the case has left a deal of political intrigue and attrition in its wake?

      Here’s Tiger Mountain on the subject – (I don’t know TM from a bar of soap) –

      “the Nats immigration minister over ruled the security reservations on Dotcom and granted him entry, since he has seen Banksie evicted from parliament, the Prime Minister had to publicly apologise to him for illegal spying, Acts pertaining to the GCSB and NZSIS have been changed and Mr Key was shown to be a liar on XKeyscore mass data collection by Edward Snowden, so it would be a brave judge that would rub the Nats and the yanks nose in it again…”

      Do you think judges are completely immune from political influence? (Not that I think we are always talking about ‘direct’ influence anyhow. I think there is ‘assimilated’ influence too)

      Something pretty fishy occurred in the sentencing of a certain female marijuana ‘supplier’ in Kaikohe this year. (Something I’d rate as a big event of the year personally)
      Recently a repeat, long-term, male, position-of-trust (teacher) child molester got the same sentence, 2 years imprisonment? [Different judge I think?] But, anyhow, go figure?

      I smell, with my little nose, something beginning with ‘F’.

      Reply
      • Kevin

         /  24th December 2015

        As Wayne Mapp pointed out in the thread, alleging the judge was politically influenced i.e. corrupted, is a very serious charge. And if people are going to make such allegations they need to come with heavy proof.

        Reply
  4. Brown

     /  24th December 2015

    At last there is a $ amount being bandies about. I’d like to see how that’s made up but suspect its a wish list to make things look bad. When it comes to money laundering I’d ask the US how much of their aid money goes into Swiss accounts in the name of the petty tyrants crapping on their own citizens.

    While finding the initial raid appalling reality TV and suspecting its just a vendetta KDC has increasingly acted like a fat thug and my sympathy has evaporated.

    Reply
  5. I lost legitimate data in the MegaUpload take down, I was testing out terrain generation for Arma2 /VBS2 for the army sim centre, got a terrain map for Bamyan province, nearly 1 hundred hours of work all gone. 😦 https://www.youtube.com/watch?v=VxQL8jJ9LtQ

    File sharing etc is dual purpose, google is just as guilty historically of enhancing availability of copyrighted materials by having links searchable, its just they played ball with DMCA take down notices, rather than ignoring and trying to obfuscate things. In my case I had a large file and Megaupload was the best way to share it for testing. 😦

    Reply
  6. John Schmidt

     /  25th December 2015

    Is this a sign of unfairness in our legal system where a person with access to what appears to be unlimited funds is able to manipulate our justice system for his own ends. I doubt if there has been any other person facing extradition who has had or continues to have the opportunities to delay proceedings in a way that KDC has and is only been made possible because of money. That does not seem fair or right. Not advocating that everyone should have the same means I am saying using money to defeat the justice system is fundamentally wrong.

    Reply
    • Unfortunately money and justice are inextricably linked. And the reality is that in some cases the more of the former the more chance of avoiding the latter.

      Reply
      • And, perhaps, equally, the more of the former the more chance of invoking the latter, ethically or not? Under either circumstance, it is incorrect to call it “justice”.

        Reply
      • Kevin

         /  26th December 2015

        Yes and no. The more money the better the lawyer and the better the lawyer the better change he’d get you off on a technicality even if you’re as guilty as sin. There’s a story of one well known criminal lawyer who once said “he’s as guilty as anything now watch me get him off”. However “technicalities” are there for a reason, one of them being to ensure guilty verdicts are sound. It’s the whole better 1000 guilty people go free than one innocent person goes to jail.

        Reply

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