‘US the place for Dotcom to argue case’

While some online still defend Kim Dotcom and make unsubstantiated and outlandish claims about New Zealand’s justice system main stream media have had a good look at the evidence presented in Dotcom’s extradition hearing and there seems little dispute about the weight of evidence.

Today’s NZ Herald editorial does further, saying US the place for Dotcom to argue case:

Judge Nevin Dawson has found prima facie breaches of copyright on a massive scale in Dotcom’s operation. It is important to note that prima facie findings are not proven guilt; they mean simply that the evidence offered by the prosecution is strong enough to support his extradition. Dotcom and his co-accused offered alternative explanations for the alleged offences but these can be considered only at a trial.

To avoid extradition, their lawyers had to show that the evidence against them was unsound, or the application faulty. They did not do so.

Dotcom and his co-accused should now take their explanations to a trial in the US.

It has taken nearly four years for the case to come this far. We may expect years more to pass at each stage of appeal. And all the while it is costing this country a fortune in court time and expenses.

The district court hearing took nine weeks and it followed countless procedural hearings since Dotcom’s arrest in an almost paramilitary police operation in January 2012.

New Zealanders ought to be able to find Judge Dawson’s 271-page decision online as easily as they can download movies and music and other copyrighted material.

Here it goes: https://www.courtsofnz.govt.nz/cases/united-states-of-america-v-dotcom-and-ors/at_download/fileDecision

It explains the methods allegedly used by Dotcom’s Megaupload site to store such material and even reward those who did so. It is said to have provided multiple URL links to the same material and when it received a take-down notice from a copyright owner, it is said to have removed only the offender’s link, not the material.

It may be that these sort of practices are technically legal but it is in the interests of content providers and users that we find out. We cannot find out until Dotcom goes to the US and faces trial. He should go now.

It’s looking inevitable that Dotcom will have to go to the US to face the charges, eventually. He has the financial resources to fight extradition in every way possible, and he even went as far as pouring millions of dollars into the Internet Party to try and engineer a change of Government. That was unsuccessful. In fact it may have strengthened support for the governing party, National.

But it looks like Dotcom is prepared to pour money into legal delays.

Not so one of those originally accused along with Dotcom. Andrus Nomm decided it wasn’t worth living with the charges hovering over him and gave himself up to the US. He was convicted and has just been released from prison.

Dotcom: ‘Inside man’ told of copyright concerns

Detailed testimony from the FBI’s “inside man” in the Megaupload case has been released, with evidence from within the company about how copyright rules were broken, according to court documents.

Former Megaupload programmer Andrus Nomm told the FBI “his co-conspirators were aware that they were making money directly from reproducing and distributing copyright infringing content”.

The details are now able to be reported after a decision in the extradition case of Kim Dotcom and three others triggered the release of court documents filed by the United States.

Nomm has just been released from a US federal prison after serving less than a year in prison after making a plea deal to testify against his former colleagues at Megaupload.

Documents filed with New Zealand courts by the US stated Nomm would testify that Megaupload’s content auditing team in the Philippines was “not very effective and that many of the auditors did not even know what copyright was”.

The court document stated: “Nomm specifically advised Dotcom and (co-defendant Mathias) Ortmann about the legality of the files being hosted. At some point after he was hired, Nomm realised the group’s reliance on and benefits from illegal copyright infringement and yet he continued to work with them. He believed they were likely to be sued civilly at some point.”

Dotcom has previously said Nomm had decided to make the deal after years of unemployed isolation in the Netherlands, away from his son in Turkey. “I can understand why Andrus did it. But it doesn’t change the fact that he is innocent.”

But Nomm admitted guilt and was convicted.

Dotcom is obviously not prepared to admit guilt. He is not yet prepared to test this in a US court. If he was convinced of his innocence he may not be so reluctant to out that to the legal test.

But if he keeps fighting his extradition he may be putting off the apparent inevitability of a trial.

The evidence as presented – including evidence supplied by Nomm – certainly seems strong enough to justify a trial. That doesn’t mean a conviction will eventuate, but as the herald editorial says, it’s important that it tested in a US court.

But…

We just call it the ‘copy/paste’ or ‘get this off my desk’ judgement. A struggle to avoid any real legal or context analysis. Easy appeal.

Appealing may be easy for someone with his financial resources. Winning an appeal may not be so easy.

 

Dotcom’s response

Kim Dotcom has responded via Twitter to the guilty plea and subsequent sentencing of one of Megaupload’s programmers, Andrus Nõmm – see Mega-admission of Megaupload guilt, rapid sentence for Nomm.

@KimDotcom:

The US Justice system: An innocent coder pleads guilty after 3 years of DOJ abuse, with no end in sight, in order to move on with his life.

I have nothing but compassion and understanding for Andrus Nomm and I hope he will soon be reunited with his son.

The good news: After 3 years the German government is releasing the assets of defendants and my mother will get her car back 🙂

“I would sign anything to get out of this mess.”
– Andrus Nomm Source: A witness for the defense.

We are back in court in New Zealand and Hong Kong soon to get funds unfrozen for lawyers so the DOJ can’t force us into fantasy plea deals.

The long legal battle looks set to continue. And also the PR battle:

Top 3 list of safe career choices:

1. Bankster
2. CIA Torturer
3. Racist Police Officer

Source: Department of Justice

And…

Top 3 list of dangerous career choices:

1. Journalist
2. Whistleblower
3. Cloud Storage Provider

Source: Department of Justice

He presumably classifies himself and Megaupload as ‘Cloud Storage Provider ‘.

His problem is that Nomm has admitted guilt to not just providing cloud storage but also to encouraging the uploading and downloading of copyright material, in particular movies and sings.

The name differentiates Dotcom’s business focus from other cloud storage providers.

It wasn’t called Megastorage, it was called Megaupload – with a big emphasis on encouraging uploading and downloading. They offered financial incentives to people who uploaded material that was popular to download.

The big question is whether they knowingly encouraged the upload and download of copyright material or whether they were ignorant of the content that made up a lot of their traffic.

Nomm’s admissions and guilty plea deal will make the defence of ignorance Megadifficult.

Nomm to testify against Dotcom

After giving himself up in the USA, admitting guult and being sentenced – see  Mega-admission of Megaupload guilt, rapid sentence for Nomm – Andrus Nõmm is also set to testify against Kim Dotcom and co-defendants if/when they are extradited.

NZ Herald calls it Blow to Dotcom as co-accused pleads guilty.

Kim Dotcom’s long-running legal battle has suffered a blow after one of his co-accused pleaded guilty – and will now testify against his former colleagues.

In one of the biggest developments since Dotcom’s Coatesville compound was raided three years ago, computer programmer Andrus Nomm pleaded guilty to internet piracy in a Virginia court on Friday.

The 36-year-old struck a plea bargain deal with the US Justice Department, admitting he personally downloaded copyright-infringing files. Nomm will serve a year and a day behind bars.

As part of Nomm’s plea bargain, he agreed his co-accused, including Megaupload founder Dotcom, knew Megaupload.com and other sites the group operated contained copyright-infringing materials and they were making money from it.

Nomm said he brought up copyright infringement to colleagues, noting files he was sent to review for errors had FBI piracy warnings.

Dotcom and his lawyer Ira Rothken are trying to play down this development.

His attorney, Ira Rothken, told the Herald on Sunday the guilty plea did not serve as a precedent.

“If Mr Nomm testifies in a truthful manner … we expect that his testimony will help the defence.

“It’s a plea bargain of convenience and the Department of Justice seems to have used this as a Hollywood-style publicity stunt to try to elevate the status of their case.”

But it’s also a plea-bargain of significant inconvenience to Dotcom’s defence. It may also put pressure on other defendants.

Mega-admission of Megaupload guilt, rapid sentence for Nomm

After surrendering to the US authiortities in Virginia last week – see A plea deal against Dotcom? – ex-Megaupload programmer Andrus Nõmm has pleased guilty and been sentenced to a year and a day in prison.

This isn’t a good sign for Kim Dotcom and the other accused who are still fighting extradition.

Ars Technica reports: Megaupload programmer pleads guilty, sentenced to a year in prison

Andrus Nõmm “was aware that copyright-infringing content was stored” on-site.

Federal prosecutors have achieved their first guilty plea and prison sentence in the Megaupload criminal case that has dragged on for over three years.

Andrus Nõmm—who was arrested this week in Virginia after years of fighting extradition in the Netherlands—pleaded guilty to felony copyright infringement. He was sentenced to a year and a day in federal prison, according to a press release issued by the Department of Justice on Friday.

American criminal charges against the six co-defendants related to Megaupload, including Kim Dotcom, still remain pending. All of the Megaupload defendants (most notably founder Kim Dotcom) have been battling extradition and fighting the government’s case from outside US borders. (Ars profiled Dotcom’s extradition efforts last month.)

Prosecutors also added that Nõmm “agreed to waive his extradition hearing in the Netherlands, where he was arrested in January 2012, and plead guilty in the United States.”

And Nomm has agreed with prosecutirs that he knew that Megaupload were knowingly flaunting copyright. The Department of Justice press release details:

In court papers, Nomm agreed that the harm caused to copyright holders by the Mega Conspiracy’s criminal conduct exceeded $400 million. He further acknowledged that the group obtained at least $175 million in proceeds through their conduct.

Megaupload.com had claimed that, at one time, it accounted for four percent of total Internet traffic, having more than one billion total visits, 150 million registered users and 50 million daily visitors.

In a statement of facts filed with his plea agreement, Nomm admitted that he was a computer programmer who worked for the Mega Conspiracy from 2007 until his arrest in January 2012.

Nomm further admitted that, through his work as a computer programmer, he was aware that copyright-infringing content was stored on the websites, including copyright protected motion pictures and television programs, some of which contained the “FBI Anti-Piracy” warning.

Nomm also admitted that he personally downloaded copyright-infringing files from the Mega websites. Despite his knowledge in this regard, Nomm continued to participate in the Mega Conspiracy.

Even a year in prison for someone not previously acquainted with criminal processes is a major penalty, but if Dotcom is extradited and charged and found guilty he coukld expect a heftier sentence.

It can be guessed that Nomm has plea bargained to reduce his sentence, probably in return for hammering the bigger fish.

A plea deal against Dotcom?

An interesting development in Kim Dotcom related legal issues – a co-accused appears to have given up fighting extradition and voluntarily gone to Virginia to be arrested. Stuff reports in Ex-MegaUpload exec arrested in US

News agency AP reported that Estonian software programmer Andrus Nomm, who was described in a US indictment in 2012 as the head of MegaUpload’s software development division, had been arrested by US police in Alexandria, Virginia, yesterday.

Nomm was originally arrested by Dutch police in Rotterdam days after New Zealand police raided Dotcom’s rented Coatesville mansion in 2012.

He had been fighting extradition to the US and initial reports did not make clear whether he had travelled to Virginia voluntarily, sparking speculation of a possible plea bargain.

The charges against him include copyright infringement and conspiracy to commit racketeering.

Nomm had his own counsel and was hardly mentioned in the original US grand jury indictment of Dotcom and his co-accused, he said.

Nomm could be just trying to front up and get things over with. He would be have been severly restricted in what he could do and where he could travel.

Or he could be also be helping investigators with their inquiries.

More detail from The daily Courier (Canada) – Estonian man indicted in Megaupload case 1st to face charges in US

U.S. District Court records indicate that Andrus Nomm was arrested Monday in Alexandria, Virginia, where he is one of seven men indicted three years ago in the Megaupload case. He was initially arrested in the Netherlands in 2012 and had been fighting extradition.

A transfer to the U.S. under these circumstances can sometimes indicate that a plea deal has been struck, but there was no indication of that in court records. A spokesman for the U.S. attorney’s office had no immediate comment.

Nomm is the first of the seven to be brought to the U.S. to face charges. Megaupload’s founder, Kim Dotcom, has been fighting extradition from New Zealand since 2012, publically criticizing the case against him and mocking prosecutors as Hollywood lackeys for shutting down his site under pressure from the film industry.

Nomm’s public profile does not match that of the flamboyant Dotcom or some of the others charged in the Megaupload case. The indictment describes him as a programmer and head of Megaupload’s software development division. It says he was paid more than $100,000 by Megaupload in 2010. The charges against him include copyright infringement and conspiracy to commit racketeering.

The indictment says Nomm is an Estonian citizen but a resident of both Estonia and Turkey.