Judge rules no copyright issue but fraud valid for extradition in Dotcom case

A judge has ruled in favour if Kim Dotcom on there being no equivalent “copyright” crime in New Zealand, but also ruled that Dotcom could be extradited on fraud charges.

NZH: Kim Dotcom legal saga: Extradition to US over Megaupload still on cards but he claims court ruling is a ‘major victory’

This latest legal milestone is this afternoon’s ruling from Justice Murray Gilbert who had been asked to overturn a decision that Dotcom was eligible for extradition to face criminal charges in the United States.

After five months of deliberation, Gilbert found that Dotcom remained eligible for extradition to the US – but not on copyright charges.

The judge found in favour of arguments put by Dotcom’s legal team, led by Ron Mansfield, that there was no equivalent “copyright” crime in New Zealand that would activate the extradition treaty.

However, the ruling also saw Justice Gilbert finding in favour of the US argument that Dotcom – and his three co-accused – could be extradited because it was at essence a “fraud” case and there was such a crime in the extradition treaty.

Dotcom, Mathias Ortmann, Bram van der Kolk and Finn Batato face decades in a US prison after a 2012 raid brought down the Megaupload file-sharing super-site Megaupload they set up and ran.

In an interview with the Herald, Dotcom said the ruling was a “major victory” because it ruled that there was no New Zealand equivalent to the US criminal charges of copyright violation.

“The major part of this litigation has been won by this judgment – that copyright is not extraditable.

It may be a major battle win, but the war against extradition could still be lost.

The ruling today has created an unusual bureaucratic contradiction – the warrant which was served on Dotcom when he was arrested on January 20, 2012, stated he was being charged with “copyright” offences.

Likewise, the charges Dotcom will face in the US are founded in an alleged act of criminal copyright violation.

Mansfield also claimed victory, saying the case was no longer the “largest criminal copyright case”.

“As we have said all along, there is no such offence under our Copyright Act. We were right.

“To win the major plank of the case but to get that outcome is extremely disappointing. It is hard to accept the logic that, if the conduct that all accept at its heart relates to assertions of breach of copyright … how it can nonetheless be massaged into a general fraud offence.”

Lawyers acting for the US began referring to the case as one of “fraud” after months of hearings.

By the time of the extradition hearing in late 2015, it was a main plank of the case with the lawyer acting for the US, Christine Gordon QC, telling Judge Nevin Dawson: “When distractions are stripped away, the evidence boils down to a central scheme of fraud. The scale of that fraud and the way it was conducted might indeed be novel. This is mainly as a result of the reach of the internet and the behaviour of mass audiences.

“Yet the dishonesty at the core of Megaupload’s operation can be expressed in straight-forward terms. The basic features do not differ significantly from earlier cases of fraud against copyright owners.

“The respondents were part of a conspiracy. They deliberately attracted copyright infringing material to their website. They deliberately preserved it, deliberately took steps to profit from that material and made vast sums of money which they applied to various purposes knowing it had been unlawfully acquired.”

Both sides are expected to challenge aspects of the ruling before the Court of Appeal – and eventually the Supreme Court, if it accepts the case.

If the Supreme Court upholds the decisions of the District and High Court, the Minister of Justice is then able to sign the extradition order – which itself can be challenged in the courts.

On that basis, there are at least two years of Dotcom hearings yet to run.

It was five years ago, in 2012, that Dotcom and his associates were arrested in an over the top raid on his ‘mansion’.

 

23 Comments

  1. Blazer

     /  December 16, 2017

    he just keeps…winning,and making Key,the NZ Police,the U.S look obsessive and ..unreasonable.

    • PDB

       /  December 16, 2017

      Sounds like a huge loss for Dotcom, not a win?

      • Yes PDB, I only hope I still fit the orange jumpsuit I have ready to wear to Auckland Airport for KDC’s departure for a penitentiary in Washington or Maryland.

      • robertguyton

         /  December 16, 2017

        “Sounds like a huge loss…”
        ’cause you have a tin ear, PDB.
        It probably sounds like National are still the Government, to you. And that Hoskings is still someone, and the Bill English is relevant.

        • Kitty Catkin

           /  December 16, 2017

          I thought that the word was spelt ‘whining’.

          John Key has long since moved on from Dotcom and Dotcom’s obvious loathing of having a Jew as PM.

          • Kitty Catkin

             /  December 16, 2017

            The fact that the law is different is hardly to Dotcom’s credit.

  2. Noel

     /  December 16, 2017

    Back in 2015 the taxpayer cost was six million and that was just for lawyers without the court costs..
    Don’t know what the total is now but if he gets extradited for the fraud he had better not start shouting claims that New Zealand didn’t help him get justice.

    • He’s a taker and an habitual criminal.

      • Kitty Catkin

         /  December 16, 2017

        Why doesn’t he just bugger off ? He seems to have a poor opinion of NZ.

        • Gezza

           /  December 16, 2017

          I dunno. He’s probably safer here from the FBI for the moment than in any other bolt hole worth heading for.

  3. Blazer

     /  December 16, 2017

    as Conrad Black will attest….very,very rare to be acquitted in a U.S court.

    • Gezza

       /  December 16, 2017

      Easy peasy if you’re a white cop who shoots a black man dead.

      • Blazer

         /  December 16, 2017

        should have added,for cases of this..nature.

        • Gezza

           /  December 16, 2017

          My fault. Sorry for the diversion. 😕

          • Kitty Catkin

             /  December 16, 2017

            Just because one person was convicted, that doesn’t mean that most others are.

  4. Alan Wilkinson

     /  December 16, 2017

    Seems bizarre it took so long and cost so much to get the obvious ruling on the copyright extradition. First they tried money laundering and now fraud to turn it into something extradictable. Seems to me Dotcom isn’t the only fraudster in this exercise.

    • Kitty Catkin

       /  December 16, 2017

      Well, no, there are the other three.

      • Alan Wilkinson

         /  December 16, 2017

        The judge seems to be simply wrong in saying it is in essence a fraud case. No, it is in essence a copyright violation case.