Dotcom to appeal after High Court judgment

As expected Dotcom will appeal.


Media Statement From Dotcom Legal Team.

This case is no longer the “largest criminal copyright case”, 1 at least as far as New Zealand is concerned. As we have said all along, there is no such offence under our Copyright Act. We were right. However, this afternoon the High Court judgment 2 was issued and, ultimately, although it concluded we are right, 3 the Court concluded that Kim is still eligible for surrender.

To win the major plank 4 of the case but to get that outcome is extremely disappointing. However, we are far from defeated. It is hard to accept the logic that, if the conduct that all accept at its heart relates to assertions of breach of copyright is not an offence under that Act, how it can nonetheless be massaged into a general fraud offence. In fact, that thinking has been rejected outright in the Supreme Court in the United States.

The High Court has accepted that Parliament made a clear and deliberate decision not to criminalise this type of alleged conduct by internet service providers, 5 making them not responsible for the acts of their users. For the Court to then permit the same conduct to be categorised as a type of fraud in our view disrupts Parliament’s clear intent. The High Court decision means that Parliament’s intended protection for internet service providers is now illusory. That will be a concern for internet service providers and impact on everyone’s access to the internet.

The last hurdle to what we say is the correct outcome – no extradition – will now need to be determined by the Court of Appeal. We remain confident that this last point, which would prevent extradition in this complex and unprecedented legal case, will be resolved in Kim’s favour in a manner consistent with Parliament’s intent, international law and, importantly one might think, the United States’ own law.

Whilst many have struggled to get beyond the United States’ hype in this politically charged and misunderstood case, an objective observer will now realise that there is much more to this case than they were previously informed of from the District Court judgment.

Whether Kim has committed an offence under New Zealand copyright law has finally now been answered in his favour; he has not. Whether our law should still permit him to be extradited to the United States under an Act that has no interest in copyright, is the question that remains now to be answered by our Courts. We say no and we are confident that this must be right.

Whether you are a supporter of Kim’s or not, these are important principles of law for us all and the very issues that we need our justice system to grapple with if we want a credible and safe process for extradition to any requesting country, including those with whom we have a close commercial and political relationship.

Ron Mansfield, Barrister

Dotcom Legal Team

1 https://www.justice.gov/opa/pr/justice-department-charges-leaders-megaupload-widespread-online-copyright-infringement

2 Ortmann & Ors v United States of America [2017] NZHC 189.

3 See paragraphs [169]-[192] (in particular [192]).

4 See paragraph [591].

5 See paragraph [183].

65 Comments

  1. Blazer

     /  February 20, 2017

    very important principles of law…unfortunately the degradation of such principles seems govt policy …these days.

    • How do broad sweeping generalities calling the government for “degradation of principles ” assist the issue. The only conspiracy here on the part of Dotcom. Conspiracy to avoid justice! KDC is to me the worst sort of bully – a coward, one that won’t face the music. He has a comprehensive history of fraud and criminality, is up on heinous charges and he lied in his residency application. One way or another he’ll leave our shores. My fervent hope is that he’ll be wearing an organ jumpsuit and face the scores of charges of fraud and money laundering in the USA.

  2. Conspiratoor

     /  February 20, 2017

    This is the last desparate throw of the dice by a legal team who know the cause is lost and are appealing direct to a sympathetic pubic to sway the judiciary. Sorry Kim, most New Zealanders judged you a long time ago and just want you gone. The game is …up

    • Kitty Catkin

       /  February 20, 2017

      Up, up, up, in a puff of smoke….

      ‘Why does he want to stay in a place of which he has such a poor opinion ?’ she asked innocently.

  3. BLAZER, fraud is fraud, and Dotcom et al are complicit according to our Appeal Court. His interference in the politics of New Zealand as an alien resident is also a contempt of the NZ sovereignty. His support of division in Maori-Non Maori means it is time to go Fatty Arbuckle, but you are going to a more accomodating US more the pity. Hone Harawira is learning more each day about the way in which NZ politics works. It is a pity that Little is surrounding himself with personally selected feminist progressive and former hard line Unionists and academics who are guilty of sabotaging the elementary thinking of our children and their children in the tertiary arena. Another area that needs to be addressed so we do not see a repeat in NZ of the hate speech in formerly well respected Universities in the US and UK.
    Think I am joking, do a bit of research about what is going on in the established US and UK universities and the possible consequences to free speech and freedom of expression. Time is running out people!

    • Blazer

       /  February 20, 2017

      accusing someone of a specific fraud who has not been tried yet,is quite defamatory ,as you are well aware Col.Calling Dotcom childish names detracts from any opinion you may have Col.As for your allegations about Labour…quite..preposterous.Academics are always feared and loathed by the neo lib,right wing.

      • PDB

         /  February 20, 2017

        “Calling Dotcom childish names detracts from any opinion you may have Col”

        Like you saying ‘Natz’ all the time?

        • Blazer

           /  February 20, 2017

          thats a common abbreviation ,in wide use on blog sites.

          • PDB

             /  February 20, 2017

            Nowadays a silly reference to ‘Nazi’ predominantly used by left-wing sites, the ‘Nats’ as in ‘young Nats’ has no ‘z’.

      • Roscoe Conkling “Fatty” Arbuckle (March 24, 1887 – June 29, 1933) was an American silent film actor, comedian, director, and screenwriter. Starting at the Selig Polyscope Company he eventually moved to Keystone Studios, where he worked with Mabel Normand and Harold Lloyd. He mentored Charlie Chaplin and discovered Buster Keaton and Bob Hope. Arbuckle was one of the most popular silent stars of the 1910s, and soon became one of the highest paid actors in Hollywood, signing a contract in 1920 with Paramount Pictures for US$1 million (equivalent to approximately $13,000,000 in 2017 dollars .
        Using his name in the quote was in humour. I did not accuse Dotcom of a specific fraud, merely pointed out that the Judge’s ruling on why he should be deported for train was for fraud. I made no judgement but it appears you have. Let the US Courts decide as is the proper use of the law in this case. We do have a Treaty on this matter with the US.

        • Blazer

           /  February 21, 2017

          your sidestep is hopeless and your have dropped the ball….facts Col,not assumptions…please.

          • No Blazer, not a sidestep, and I played hooker, so never had the ball in hand to drop. It is interesting though to see, in your haste to put me down, you did not utter one word to persuade me and others that what I said was anything other than factual. I did not expect anything more than a knee-jerk response from you, such is your credibility. Time for your Baarf?

    • duperez

       /  February 20, 2017

      “… Feminist progressive and former hard line Unionists and academics who are guilty of sabotaging the elementary thinking of our children and their children in the tertiary arena…”

      Care to be more specific?

        • duperez

           /  February 21, 2017

          Most who are asked about what they did about it when they claimed their children were being subjected to “leftwing Marxist brainwashing,” have no answer. Your description and the activity you claim has the ring of glib generalisation.

          Now if you were D Trump at a public rally of supporters and said the same to them, followed by, “And I’m going to sort that out and make America great again,” there would be raucous applause.

  4. Nelly Smickers

     /  February 20, 2017

    As my grandma used to say…..*You can’t fight City Hall*

    And this from the *Urban Dictionary*….. ‘It’s useless to clash with a politician or the establishment – it’s foolish to fight a battle you know you can’t win’

    But, it’s ‘Election Year’….*we live in interesting times* 😎

  5. Gezza

     /  February 20, 2017

    Gilbert J remarked with a smile during the hearing of this case that, whatever his decision was, Mr Dotcom’s fate was obviously not going to be determined by his Court.

  6. Kevin

     /  February 21, 2017

    “This case is no longer the “largest criminal copyright case”, at least as far as New Zealand is concerned.”

    Yeah, well it’s still the largest criminal copyright case as far as the Americans are concerned.

  7. dezz

     /  February 21, 2017

    hes had his 15 minutes.. next 😀

  8. I wonder when the relook at his failure to complete his visa application by stating all of his convictions will be completed by the Minister of Immigration. I note that Indian students are being deported for factually incorrect applications so why is Dotcom being treated differently? Or has he done someone an important favour? Just asking like Lurch does.

    • Nelly Smickers

       /  February 22, 2017

      Had this country treated KFC correctly right from start, he could have done an *awful lot* for New Zealand ❗ As Wayne sez, “It’d be a hell of a lot more than any of those getting in here from the subcontinent ever would”. 😡

    • Blazer

       /  February 22, 2017

      he has PR does he not?Take a look at Bill Lieu ,either one of them,and then talk about applications.Realistically what has Dotcom done wrong in NZ other than upset Natz supporters?The raid on his home was OTT,the whole vendetta driven by U.S corporations,ably assisted by a grovelling govt is farcical.

      • His permanent residency is subject to re-examination on grounds that he did not state accurately his situation, this places his status in jeopardy. If you want all the facts try asking the Minister for Immigration Affairs under the Official Information Act for a read out of action relating to his immigration status. Me, I have better things to focus on.

        • Blazer

           /  February 22, 2017

          on that basis there would be thousands if not 10’s of thousands whose applications need revisiting.The present govt is known for gaming OIA requests ,and it seems an effective tactic…for them and their abandonement of principles.

        • Nelly Smickers

           /  February 22, 2017

          They’ve got nutthin’ bjM….other than that he failed to tell them about a *speeding conviction* he incurred soon after his arrival in the country. You can bet JK and the ex MoJ Simon Power are both pleased to be out of it.

          It’s one of the *biggest productions ever* to come out of Hollywood ❗

          • Nelly, actually it was a “Dangerous driving” charge at the serious end of the scale, if the truth be known. However he signed off on the same sort of documentation that was presented by the Indian students and they are being deported. We should deport him to Germany and let him compete with the Muslim refugees and economic migrants. He has wasted too much of the NZ Judicial resources and cost us as tax payers a fortune. Let him be gone.

            • Nelly Smickers

               /  February 22, 2017

              I understand you’re an *ex-military man* bjM…..in hindsight, do you think if *you* had led this raid on his family home with a warrant to arrest for *Breach of Copyright*, you might have done things any differently ❓

            • I left GCSB before the warrant was produced. Believe me, I knew what KDC’s status was as a NZ Resident through contact with Wikileaks and would have made the point to my colleagues that he was not able to be intercepted. That didn’t happen to my regret, because some very intelligent people were subjected to crappy media comment that they did not deserve. They were genuinely patriotic, law abiding Kiwis who were trashed by political crap artists like KDC.

            • Blazer

               /  February 22, 2017

              the F.B.I should pick up the bill and….the greedy Hollywood executives .

            • Blazer, we are in NZ, no FBI or Hollywood. Relax mate.

            • patupaiarehe

               /  February 22, 2017

              He has wasted too much of the NZ Judicial resources and cost us as tax payers a fortune. Let him be gone.

              To be fair BJ, I don’t imagine his defence team ‘work for love’ either. He hasn’t been claiming legal aid for them, unlike some other ‘oxygen thieves’ such as Tony Robertson. Nelly makes a good point above, in that copyright infringement hardly justifies a home invasion , where the supposed ‘good guys’ point semi-automatic firearms at the alleged offenders.

            • Missy

               /  February 22, 2017

              BJ, I could be wrong, but I seem to recall reading somewhere that DIA are waiting for the extradition case to be settled before going ahead with the immigration case. I have it in mind it is because it is likely the immigration case would be settled more quickly, and if he is found guilty he would have to be deported back to Germany, and the US case would have to start again.

            • patupaiarehe

               /  February 22, 2017

              I suspect Missy, that once the charges against him are dismissed, a deal will be struck where he gets to stay, in exchange for agreeing not to sue.

            • Missy

               /  February 22, 2017

              I don’t think the charges will be dropped, they have been brought by the US, the only thing that may happen from a NZ perspective is that he will not be extradited, and I hope that doesn’t happen, however IF it does happen I hope he doesn’t try and do some deal, it makes more of a mockery of our immigration process than recent cases already have. NZ Permanent Residency & Citizenship should be a privilege and not something for someone like Dotcom to show such contempt for, he is not a good citizen of NZ and should not be allowed to remain.

            • patupaiarehe

               /  February 22, 2017

              he is not a good citizen of NZ and should not be allowed to remain.

              Why isn’t he, & why not?

            • Gezza

               /  February 22, 2017

              The way things are working out I think the government has already concluded he was a luxury we couldn’t really afford.

            • patupaiarehe

               /  February 22, 2017

              The way things are working out, the govt might have to figure out the cheapest way possible to accomodate someone who already has permanent residency, wants to stay, and has an admission from the govt that they are liable for $2,000,000,000 in damages. I’m picking that our portly german friend, will most likely settle for far less… 😀

            • His problem actually starts because he used an alias when charged with danger ous driving.
              Check this:
              “156 Deportation liability if visa held under false identity
              (1)
              A person is liable for deportation if—
              (a)
              the person is convicted of an offence where the identity of the person is established, and that identity is different to the identity under which the person holds a visa.”

              This is our Immigration Act section that applies to him. As for the $2 billion you claim the Government has admitted liability for, when and who made the admission, it is a farcical figure!

            • patupaiarehe

               /  February 22, 2017

              http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11763071
              I’m picking that no-one in the judiciary would admit to that deal ‘setting a precedent’, with $43,000,000 buying immunity from prosecution. All KDC needs to do, once he wins, is point out what he could do, then just say he wants to be reimbursed for what he has spent on his defence. And why. As much as some people don’t like him, he is far from an idiot. Quite the opposite, really. He may be a little tubby, but no-one is perfect 😀 What happened to him & his family was completely wrong. In NZ, the police aren’t supposed to point guns at people who have allegedly stolen intellectual property. They are supposed to only use lethal weapons, against those who pose a real physical threat against another person. Which is why there is something seriously wrong with this whole situation….

            • Yes, the way the raid was handled was not in the best traditions of NZ Policing, and sadly shows the extent that “Rambo” tactics inherited from US TV affected the psyche of our Tactical Policing team approach. The British approach in all of these situations is to use Minimum Force and be as low profiled as possible. Police Tactical units should only have small arms pistols except for trained snipers whose deployment should be a last resort depending on the situation. Those snipers should be required to train at least once a week and re-qualify as a marksman monthly, so they are really professional. If they are deployed, they must be instructed to shoot to kill once the target is identified.
              As much as I dislike his personality , Cameron Slater has an interesting legal point of view in his Whaleoil article today about how KDC is caught by N and US law.
              Yes lethal force must only be used in Policing as a last resort in circumstances where lives are in imminent danger, that assessment needs cool heads not combat rage.

            • patupaiarehe

               /  February 23, 2017

              This is our Immigration Act section that applies to him. As for the $2 billion you claim the Government has admitted liability for, when and who made the admission, it is a farcical figure!

              I’d agree that it’s a farcical figure BJ, it came from KDC himself.
              http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=11514563
              As for the legal view on WO, while some of it may be good news for Cam Slater, the last part that supposedly puts KDC on the next plane to the US, is a bit of a stretch IMHO.

  9. Alan Wilkinson

     /  February 22, 2017

    If he is to be extradited for fraud, where did he commit this fraud? Surely he should be prosecuted wherever that was?

    • Blazer

       /  February 22, 2017

      allegations are not proof of anything.

      • Alan Wilkinson

         /  February 22, 2017

        They only have to prove a prima facie case for extradition, but they should have to prove jurisdiction for it.

        • Anonymous Coward

           /  February 22, 2017

          If putting copyright material on the internet isn’t illegal then where was the fraud?
          When something has no copyright protection anyone can profit from it.

          • Alan Wilkinson

             /  February 22, 2017

            It is illegal but it is not extraditable. I don’t know what the fraud allegations are.

            • Anonymous Coward

               /  February 22, 2017

              No, the court found that there is no law against it in New Zealand.
              But will Hollywood get the law changed before the movie and music sites set up shop in NZ.

  10. patupaiarehe

     /  February 22, 2017

    It just keep getting better…. 😀
    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11805415

    Dotcom expected the new court action to be filed with the High Court by April. It would seek a ruling that the case against him and the three other accused – Finn Batato, Bram ven der Kolk and Mathias Ortman – was unsound because Dotcom had been arrested on a civil matter.
    “The raid, the search and the arrests were all based on the Copyright Act and what the judge has now done is give us a really powerful tool to attack again where it started.
    “If I win on this, the whole thing falls over. And we can now not lose on that.”

    The documentation which led to the arrest of Dotcom and his co-accused relied on the Copyright Act and money-laundering in its argument to the judge who signed it off.
    Dotcom said money-laundering was “never a stand-alone charge”.
    “It is always connected to the underlying crime. Obviously [there is] no money-laundering without criminal copyright infringement.”
    Dotcom said he believed the Crown changed the language it was using in court in 2013 to shift from speaking about “copyright violation” and to start speaking of fraud.
    “They knew for years they had ****** up. I think New Zealanders deserve to know that was part of the case.
    “The entire raid was for civil copyright infringement and that is in their own documents. I was in jail for a month for a civil copyright claim, that is what the arrest warrant said. This thing will go all the way to the Supreme Court itself.”

    • Nelly Smickers

       /  February 22, 2017

      A tale of 2 *Martin’s* 😎 😎

      • patupaiarehe

         /  February 22, 2017

        Interesting read Nelly. This is a link from the above article.
        http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=11514563

        • Blazer

           /  February 22, 2017

          game,set and match to Dotcom according to that article.Naieve NZ govt politicians,so keen to be U.S lapdogs, have created a huge liability for NZ taxpayers.What a legacy John the quitter Key leaves behind.

          • PDB

             /  February 22, 2017

            You would believe everything you read Blazer……..

            • patupaiarehe

               /  February 22, 2017

              Don’t let your hatred for our fuller figured german friend, get in the way of seeing a valid legal argument, Pants… 😛

            • PDB

               /  February 22, 2017

              Lawrence Lessig is a political activist of similar leanings to dotcom – you should research more as his opinion could well be biased in this particular case towards an outcome he supports. I’d rather see the other side of the case before jumping to conclusions like yourself Patu……

              “Lessig is a proponent of reduced legal restrictions on copyright, trademark, and radio frequency spectrum, particularly in technology applications”.

              https://en.wikipedia.org/wiki/Lawrence_Lessig

            • patupaiarehe

               /  February 22, 2017

              I guess time will tell how useful his opinion is Pants..

        • Nelly Smickers

           /  February 22, 2017

          Cheers patu!

          Wayne reckins *Tremain* sort of sums up the prevailing attitude fairly well 😄

          (must rush….*MAFS Oz* starts in 10mins ❤ )

          • Pete Kane

             /  February 22, 2017

            And how is young Wayne these days? Trump happy?

            • Nelly Smickers

               /  February 22, 2017

              He’s good thanks, PK…..keeping busy. I picked this up on my travels to keep him off my back since I got home o_O

            • Missy

               /  February 22, 2017

              Nelly, that one is probably a lot easier and less frustrating than the Ikea one! 🙂

            • patupaiarehe

               /  February 22, 2017

              Ahem! Missy, why isn’t he, & why not???