Dotcom extradition appeal closing

The Kim Dotcom extradition appeal seems to have dropped off the local media radar. If it wasn’t for Nelly prodding away here it would just about have been forgotten.

The closing arguments were heard in Court in Auckland this week.

Reuters: Dotcom’s appeal against extradition to U.S. winds up in New Zealand, ruling likely weeks away

Lawyers for German entrepreneur Kim Dotcom, wanted in the United States on copyright infringement and money-laundering charges over his file-sharing website Megaupload, argued on Wednesday there was not enough evidence to show he conspired to commit a crime.

The Auckland court heard closing arguments in Dotcom’s four-week appeal against a lower court’s decision to extradite him to the U.S., the first New Zealand court proceedings to be broadcast live on the internet.

The appeal took place nearly five years after dozens of black-clad police rappelled into the flamboyant entrepreneur’s New Zealand mansion and cut him from a safe room.

U.S. authorities say Dotcom and three co-accused Megaupload executives cost film studios and record companies more than $500 million and generated more than $175 million by encouraging paying users to store and share copyrighted material.

The four deny wrongdoing and are on bail.

The case has been closely watched by the media industry and developers in the file-sharing business for signs of how far the United States is willing to go to protect copyright holders.

The appeal set a precedent when the judge gave permission for the hearing to be streamed on YouTube, but legal experts at the time had warned that appeals hearings tend to be similar to “watching paint dry”.

Rodriguez Ferrere said the “monolithically boring” nature of the entire proceeding “turned everybody off”.

The final afternoon’s proceedings only attracted around 100 viewers online, according to YouTube.

If it wasn’t for Nelly’s efforts here it may have been far fewer.

“Given the stakes of this case, the losing party will likely appeal any adverse judgment to the Court of Appeal,” said Ira Rothken, a lawyer representing Dotcom, in an email.

Unless the US pulls the plug on proceedings it is likely to limp on for years.

Nelly can switch to watching grass grow while she waits for the ruling. At least it’s spring.

*DAY 7* of Kimmie’s *Extradition Appeal Hearing*

Unlike the media (or if they have I’ve barely noticed it) Nelly has been busy keeping us up to date with Kim Dotcom’s extradition appeal.

*DAY 7* of Kimmie’s *Extradition Appeal Hearing* live-streaming from 10am this morning.
And especially for the group, here’s a FAB photo of the *Man himself* taken yesterday with his beautiful daughter Kaylo …….*HAPPY 9TH BIRTHDAY KAYLO* from all of us here at YNZ ❤
https://twitter.com/KimDotcom/status/773781003215052800?lang=en

It may be day 7 of the live streaming but the live streaming links show that it must be day 10 of the extradition hearing, as yesterday’s Youtube link was Ortmann, Kim Dotcom, van der Kolk & Batato v USA & NSDC – High Court, Auckland, NZ, Day 9 8/9/2016

While Nelly is a Kimmie fan there are three others involved, Ortmann, van der Kolk and Batato (the Youtube posts give Dotcom’s full name but just the surname of his 3 co-appealers.

Numbers of viewers so far:

  • Day 3 morning – 20,531
  • Day 3 afternoon – 18,548
  • Day 4 – 12,172
  • Day 5 – 5,842
  • Day 6 – 5,768
  • Day 7 – 3,604
  • Day 8 – 6,125
  • Day 9 – 4,285

Did Nellie Promotions Inc have a day off on Tuesday?

I can’t find a story on the appeal at the herald this week, the last one I can find is Monday August 29 – Kim Dotcom extradition appeal: Lawyer argues for live-streaming

That lack of interest seems to be worldwide – perhaps the live streaming has backfired as a means of getting publicity.

A search in Google news for the last 24 hours for Kim Dotcom only gets these hits:

kimdotcomextraditionappeal

Nothing on the appeal. I find that amazing. Even going back a week and there is sparse coverage.

 

Dotcom appeal live streaming

While the High Court judge dealing with Kim Dotcom’s (along with co-defendants) extradition appeal complained about their late application to have the proceedings live streamed Justice Murray Gilbert has allowed them to do it, starting from tomorrow.

RNZ: Dotcom given go ahead to livestream appeal

Prior to the appeal starting, Mr Dotcom’s lawyer Ron Mansfield made an application to livestream the entire proceeding, under the in-court media guidelines.

“This is a case of the internet age and as such has attracted significant academic and media interest,” Mr Mansfield said.

The issues being discussed could set both national and international legal precedents, he said.

“However … the chances of such interest being satisfied by the necessarily brief footage by television or radio is negligible.”

I think this is fine – where possible justice should be as open as possible.

The Crown opposed the application on behalf of the US.

A livestream could pollute a potential jury pool in the United States if the men ended up standing trial there, Crown lawyer Christine Gordon said.

“There will be extensive submissions made in this court about matters that may well be inadmissible and irrelevant in any future trial,” she said.

The chances of the potential US jury pool watching all the coverage, or any of it,  is likely to be minimal. In any case in the Internet age trials have to be able to deal with the possibility of jurors having some prior exposure to aspects of a trial. They have to decide based on the evidence put in front of them at trial.

There are conditions – it has to be delayed by 20 minutes in case suppressed information needs to be filtered out, live comments on the stream have to be disabled, and footage has to be removed once the trial has finished.

That last condition is likely to be ignored by those who want to capture and store video of proceedings but I don’t see any problems arising from that. Weeks of court proceedings is unlikely to be compelling viewing.

Chris Keall at NBR thinks Genius move: Live-stream file-sharing chaos will play into Dotcom’s hands

When the eight-week extradition appeal hearing wraps up, there is zero chance that all of this video will be removed.

At that point, Dotcom will be able to say: “If a High Court judge can’t control video uploaded to a legal file sharing service, then why am I being vilified for a handful of infringing files on Megaupload?”

Dotcom and his lawyers have long argued that file sharing is a neutral technology. Like, say, the VHS in the 1990s or the cloud in the 2010s, it can be used for good or ill. Megaupload was sometimes used for piracy but you could say that about YouTube and other services (which are absolved from responsibility for casual copyright infringement under the US Digital Millennium Copyright Act), they say. Unauthorised trial video floating about on dozens of sites and file sharing services will gel with that argument quite nicely – and it will help him as he heads to the Supreme Court (the inevitable next phase of this multi-year wrangle, whichever side wins this High Court appeal).

I don’t see much chance of a stunt like this working, if it is a legal stunt and not just attention seeking.

Keall also summarises the case:

The US government, through Crown Law, maintains that intercepted Skype conversations prove Megaupload wasn’t just another file sharing site. It used cash incentives to reward members who uploaded popular content, some of which was copyright infringing (and unlike, say, YouTube which has at times benefited from ads around infringing material, it did not offer to share revenue with artists or rights holders).

It claims that, contrary to their public statements, the Megaupload crew conspired to make infringing content readily discoverable.

Dotcom and his co-defendants also face racketeering and money laundering charges.

From what I’ve seen the prosecution may have a reasonable case – if they can prove incentives to share content illegally.

The defence has asked for a stay of proceedings due to serious flaws in the proceedings. From RNZ Dotcom extradition appeal begins in High Court:

They asked for the stay because of what they argued was unlawful behaviour by the US before and after their arrests in 2012.

Mr Van der Kolk and Mr Ortmann’s lawyer, Grant Illingworth, told the High Court that the district court had “displayed extraordinary disinterest” in the men’s arguments for both the stay application and against their extradition.

Crucially, the court had not let the men present evidence of unlawful US behaviour, he said.

“[That includes] a massive search and seizure, manufacturing a situation of urgency in order to get procedural shortcuts … covering up the unlawful activities that preceded the [arrests], downstream attempts to cover that up including a police officer giving incorrect information to this court, [and] unlawfully sending clones of hard drives overseas.”

The district court failed to give any of those issues “meaningful judicial assessment” and its decision to throw out the stay application should be quashed, Mr Illingworth said.

“It was a most serious breach of the judge’s duties and that alone should cause this court the deepest concern.”

The only remedy was to stay the extradition attempt indefinitely, he said.

There has certainly been problems with the investigation and arrest, but I have no idea whether it \has been bad enough to justify a stay – that’s up to the Court to decide.

Dotcom starting court appeal

Kim Dotcom is back in the High Court today to begin what is scheduled to be a six week appeal of his extradition to the US.

He has also been appealing for sympathy around the world.

Newshub: Dotcom’s mega battle returns to court

Kim Dotcom is set to return to court today as he appeals a decision to allow his extradition to the United States.

A judge ruled in December there was overwhelming evidence the 42 year old and three co-accused had criminal charges to face over their part in running file-sharing website Megaupload.

The US government argued last September Dotcom and the others earned nearly $240 million by running a website funded largely by revenue from publishing copyright-infringing files.

During the 10-week extradition hearing last year, lawyers for the US said Megaupload had paid people to illegally upload copyright-infringing files and then charged others to watch them.
But Dotcom’s lawyer, Ron Mansfield, said the website was protected by a “dual-use” defence – where a company couldn’t be responsible for the illegal use of products with other legitimate purposes.

The four men have been locked in a protracted legal battle over the case since Dotcom was dramatically arrested in a Hollywood-style raid on his Coatesville mansion in 2012.

They face charges of conspiracy to commit racketeering, conspiracy to commit money laundering, wire fraud and two kinds of criminal copyright infringement based on an FBI investigation going back to 2010.

Dotcom has been actively promoting his case on Twitter, including:

@KimDotcom
Essential reading about my case:

1. The corruption: http://Kim.com/whitepaper.pdf

2. Harvard Law Prof expert opinion: http://www.techfirm.com/professor-less

And:

@KimDotcom
OMG! The US Government is scared of LIVE STREAMING!

RNZ: Dotcom seeks extradition case live-stream

Kim Dotcom is asking a High Court judge to allow his appeal against extradition to the United States to be live-streamed over the internet.

He said he wanted the public to see his lawyers “smash” the US case.

Mr Dotcom said the US government opposed the idea of live-streaming the case.

I don’t know if the judge has ruled on live streaming yet, I presume that will be done at the start of court proceedings today.

And I don’t know if the court is set up for live streaming.

How many people will be interested in six weeks of legal arguments, apart from the attention seeking Dotcom? The court will make it’s decisions regardless of Dotcom’s social media campaign to win world wide sympathy.

More on live streaming from RNZ: US fears only reason to reject Dotcom livestream – lawyer

The only reason Kim Dotcom’s extradition case would not be live-streamed is if the United States is afraid their case is not good, his lawyer says.

Mr Dotcom’s lawyer Ira Rothken said the appeal was about whether a cloud storage provider could be responsible for the acts of its users.

He said it had worldwide relevance.

“People in New Zealand, as they do in the United States, are entitled to walk into the courtroom and sit down,” he said.

“This case has great importance across the globe. We don’t understand why it can’t be that anybody could watch this anywhere in the world.

“It only has to be because the United States is afraid that their case is not good, and it will be scrutinised, and they’re trying to avoid it.”

Mr Rothken said he was asking High Court Justice Asher to consider the idea.

So while Rothken takes a swipe at the US over live streaming all he is doing is asking the judge “to consider the idea”. It sounds like the US Government has no involvement in whether it will be live streamed or not.

I doubt that Judge Asher will be swayed by Rothken’s attempt to get world wide publicity.

A Harawira comeback?

It looks like Hone Harawira is going to attempt a political comeback.

Source from the North: Hone Harawira WILL contest the 2017 election in Te Tai Tokerau, for the Mana Movement

If he stands in Te Tai Tokerau it will be interesting to see how Labour deals with the campaign there. Kelvin Davis won the electorate off Harawira in 2014, much to the annoyance of Mana and Internet Party supporters who needed an electorate win to make it into Parliament.

There was also quite a bit of annoyance that Mana got on board with the money man, Kim Dotcom. There will be memories of that.

While Mana supporters have remained active the Party has virtually disappeared with their website gone and only spasmodic activity on Facebook.

They seem to have tried to re-brand themselves as a ‘movement’ but there hasn’t been much sign of it.

Dotcom not John Doe

I didn’t think the John Doe who claims to have hacked the Panama papers would be Kim Dotcom, but it seems that some do. It’s certainly being talked about.

Both & are speculating this morning that “John Doe” may be . Interesting theory. would know.

Theories have been circulating suggesting the mysterious figure behind the Panama Papers leaks may in fact be the NZ-based internet entrepreneur. The Spiniff begins its fearless mission to unmask John Doe by asking, is it you, Kim Dotcom?

Rare is the day when the two most voluble and entertaining thought leaders of the New Zealand blogosphere agree, but so it is on the matter of the identity of the Panama Papers’ “John Doe”, the name adopted by the person behind the massive information leak.

Both Cameron ‘Whaleoil’ Slater and Martyn ‘Daily Blog’ Bradbury – along with various other novice online sleuths – have been speculating that John Doe is Kim Dotcom, the Mega-founder being sought for extradition from New Zealand by the US Justice Department.

But Bradbury responded that “I’m not speculating it is Kim” but ” oh I certainly believe it’s political”. The last two sentences Hooton referred to :

I wonder who had the skills to hack and desire for vengeance against Key?

I’ve always believed that vengeance is a dish best served 18months into the election cycle.

That’s quite vague. Incidentally Bradbury does seem to think that this could, at last, be what what triggers the revolution (John Doe had saiD that the next revolution would be digital):

This week is looking very difficult for John Key and his right wing rich mates. Mass surveillance lies didn’t wake sleepy hobbits up. Dirty Politics didn’t wake sleepy hobbits up. Looks like Key building Tax Havens and getting caught might just wake them up.

He might be right one day, but his accuracy average won’t be flash.

Meanwhile Slater didn’t actually come out and say it was Dotcom but he did all but. He posted a ‘comment of the day’ and bolded these words.

illegally hacked

paymaster
German

It’s a whole lot easier for the hacker, the paymaster and the intermediaries to be close so what is discovered can be discussed and assimilated.

“John Doe” appears to have a better knowledge of NZ politics than a lot of kiwis

Am I joining the dots or do I just need to loosen the tinfoil ?

Slater accusing Dotcom is nothing new. He might be right once too and might actually front up with evidence to prove it. But then he posted:

I suspect Key will have second thoughts about cutting me adrift and feeding me to the wolves at the same time as doing absolutely nothing to try and identify the criminal hackers, the complicit media working with criminals, and the people in the Labour Party that are funding, facilitating and abusing the fruits of crime.

Sorry to say, I don’t have a lot of sympathy for Key over this.  He threw me under the bus.  He threw Ede under the bus.  He’s thrown Whitney under the bus.  None of us broke the law.

Key threw Slater and Ede under a bus? Or did he just distance himself from a train wreck?

Nevertheless it sounds like Slater has more on his mind than who John Doe is. His comment is full of irony, self-sorriness, and some trepidation.

Oh, and Manhire asked Dotcom if he was the Panamanian John Doe and Dotcom denied it, saying “I’m not John Doe, Satoshi Nakamoto or Rawshark.” Of course he doesn’t have to be them.

Conclusion: I’m suspicious of Manhire trying to deflect attention onto everyone but him. I don’t think he is John Doe either but which journalist writes about Slater and Bradbury these days. And in the same post!

Dotcom and modernising extradition laws

Stuff recently reported that Kim Dotcom extradition appeal to be heard in August

Following the judgment in December they immediately launched an appeal and Justice Raynor Asher called a case review conference on Tuesday where he set a date for the appeal for August 29.

That would give him time to consider his decision and have a judgment ready before the end of the year, he said.

This was despite the United States asking for an earlier date, saying the appeal was of a matter of urgency.

No sign of urgency here, it is four years since Dotcom’s arrest.

Judge Nevin Dawson ruled the Mega moguls be eligible for extradition shortly before Christmas, following a lengthy nine week hearing at the North Shore District Court at Auckland.

He ruled the US had a “large body of evidence” which supported a prima facie case, and that Dotcom and his co-accused “fall well short of undermining the case.”

Dotcom and his Mega co-founders were back in the High Court at Auckland on Tuesday launching an appeal against an earlier District Court decision that he and his co-accused Mathias Ortmann, Fin Batato and Bram van der Kolk, were eligible for extradition to the United States on copyright charges.

David Fisher wrote Kim Dotcom might enjoy another summer

The charges relate to Dotcom’s Megaupload website, which was shut down in a global raid in 2012.

Yes, that’s four years ago.

The delays to this point have, to a great extent, been understandable. The Crown failed to cover itself in glory from the outset, and genuine questions needed judicial answers over discovery, illegal spying and search warrants.

The Crown today pushed for an earlier hearing but was defeated. The issues, said Dotcom’s team, were very complex and needed time to air. The High Court penciled in a date when the first signs of spring are starting to show.

Everyone can again display their expertise at length after the High Court scheduled the appeal for eight weeks from the end of August. That means it is scheduled to wander through to mid-October. Expect further appeals after that.

Guilty or not, liable for extradition or not, whatever — Dotcom looks likely to welcome in the 2017 New Year in New Zealand.

The Law Commission refers to the lengthy Dotcom extradition process in making recommendations for changes. The Herald reports Law change needed to tackle cross-border crime.

The growing problem of cross-border crime means the law should be changed to ensure New Zealand does its part, a review by the commission has concluded.

The report, released today, contains three key recommendations:

  • Requests from the vast majority of countries should be processed in the same way. Currently, the formal extradition steps vary considerably depending on which country is making the request, and treaties in place that are mostly over 100 years old.
  • Tailor-made rules should guide extradition proceedings. There should be a single appeal route, rather than the current regime that enables multiple and separate appeals and judicial reviews.
  • A new central authority should be created to manage all extradition requests. It would consider whether to commence an extradition proceeding, a call that would involve assessing the likelihood of success.

The Law Commission said making the extradition process more straightforward could be done at the same time as protecting the rights of the person sought.

The Law Commission has recommended that the court be given sole responsibility for deciding on nearly all of the grounds for refusal, with only a few grounds reserved for sole consideration by the Minister of Justice.

These recommendations won’t affect the Megaslow Dotcom case but if they are adopted they may speed cases up in the future.

It would help if the police didn’t cock things up in investigating and arresting people as well.

The Law Commission report: Modernising New Zealand’s Extradition and Mutual Assistance Laws

Journalist or not?

I referenced this recently but it’s worth a look at this full post last week by Privacy Commissioner John Edwards:

When is a journalist not a journalist?

Last week’s decision of Clifford J in the Wellington High Court found that in the context of the Evidence Act, Nicky Hager was a journalist in relation to the publication of Dirty Politics, and was therefore entitled to assert privilege under s.68 of the Evidence Act 2006.

The High Court decision to classify Hager as a journalist echoes my office’s decision to do the same, in a complaint made against him by blogger Cameron Slater. This is important because the Privacy Act only applies to agencies – and the definition of “agency” excludes “ in relation to its news activities, any news medium.”  Journalists working in their capacity in the news media do not come under my office’s remit.

However, if we accorded Hager the news media protection, why did we flip-flop in another case and deny it to journalist John Roughan?

We don’t usually make public comment on cases that we have investigated. But apparent inconsistencies in approach have been picked up by parties and questioned. Those questions are legitimate, and important, so I’m happy to try and explain, by discussing elements of the complaints to our office that have been placed into the public domain by the parties.

There are three other relevant cases, all with familiar parties:

Dotcom v Attorney-General

The Crown (being sued by Kim Dotcom) asked the Court to force Kim Dotcom to produce documents held by a journalist (David Fisher), who he’d fully co-operated with when Mr Fisher wrote the biography The Secret Life of Kim Dotcom. This is a process called discovery. Usually, one party can ask the other party to give up all relevant information that is within their control. If a third party has information relevant to the proceedings, there is a special process by which they can be compelled to produce information for the proceedings as well. This is called “third party discovery”.

The Crown argued that because Kim Dotcom had a right under the Privacy Act to access personal information held by an agency, any such information was within his control, and therefore he should exercise his right to procure and produce it.

David Fisher was, they said, an agency under the Privacy Act, and Kim Dotcom could get all the information held by him. The Court considered whether David Fisher was an agency, given he was a journalist, working for a major NZ daily newspaper, who had regularly written news articles about Kim Dotcom.

Then Chief High Court Judge, Justice Winkelmann concluded that in David Fisher’s capacity as an author of a book, he was not “news media” as the definition refers to “articles”, not “books”. The result seemed to be that Mr Fisher would not be subject to the Privacy Act for an article published in the New Zealand Herald, but if a collection of such articles were published as a book, he would be.

Cameron Slater v Nicky Hager

Nicky Hager received a hard drive from an unnamed source with a significant amount of personal correspondence to and from blogger Cameron Slater. He then used that information as source material for his 2014 book Dirty Politics.

Mr Slater made a complaint to my office that the means by which Mr Hager obtained his private communications, and then subsequently published them, breached his privacy

The matter the High Court was addressing in Dotcom v Attorney-General was based on an individual’s right of access (that is, information privacy principle 6). The question we faced in the Slater v Hager complaint was about the means by which an investigative journalist collected and disseminated information (that is information privacy principles 1-4, and 11), so there were differences in the basic facts of the case.

We, and others found the High Court decision in Dotcom troublesome from a number of perspectives, not the least being that it effectively puts my office in the position of having to form a view on what information parties are entitled to have access to for court proceedings, but I have no power to order the production of the information. If the Privacy Act is to be the means for providing third party discovery there will be significant delays in cases before the courts as parties come through my office, and then on to the Human Rights Review Tribunal before going back to the court hearing their dispute.

When lawyers find a precedent case inconvenient, they seek to “distinguish” it from the facts of other cases it might otherwise apply to.

In determining whether Mr Hager was ‘news media’ for the purposes of the publication of a book, my senior investigating officer decided the facts of the complaint were quite different from those in the Dotcom case. He was obliged to take into account s.14 of the Privacy Act which requires that in performing functions under the Act, we have to have due regard for the protection of important human rights and social interests that compete with privacy.

And he had to think about s.6 of the New Zealand Bill of Rights Act 1990 (NZBORA)  which provides “Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning“.

Section 14 of the NZBORA provides for “freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form”.

And so we made the decision that the writing and publication of Dirty Politics was the collection and dissemination of news, by a journalist, and that as such we had no jurisdiction to consider a complaint that its publication or research that lead to it, was a breach of the Privacy Act.

Roughan v Prime Minister John Key

So if Nicky Hager is a journalist when he writes a book, why isn’t John Roughan when he does?

Mr Roughan wrote a book about Prime Minister John Key.  Lawyers for Bradley Ambrose, the cameraman suing Mr Key for defamation as a result of the “teapot tapes” events asked the Prime Minister for discovery, including material held by his biographer John Roughan. They were asking him to exercise his right under the Privacy Act to access personal information about him, so it could be produced to the Court. Lawyers for the Prime Minister obliged and made the request of Mr Roughan, who refused on the basis that he was a journalist.

Here, we had a case that was “on all fours” with the earlier decision of Justice Winkelmann. A journalist working for New Zealand Herald writes a book about a well known individual who is a party to legal proceedings. I made the decision that as a statutory officer faced with a case with identical facts to those directly ruled on by a senior judicial officer, I was bound by that precedent. There was simply no “wiggle room”.

Privacy, freedom of press and the courts

A freely functioning press is vital to a healthy democracy. Press freedom, and freedom of expression are not absolute values, and are like other rights, subject to limitations. That’s why we have defamation laws, laws against incitement, and limits to protect  privacy.

This is also why Nicky Hager ultimately succeeded in his judicial review of a warrant to search his property for evidence that might identify the source of the information Hager used for his book Dirty Politics.

I agree with critics that consistency in the law and its application is an important value. With the Government committed to reform of the Privacy Act, it could be timely to take the opportunity to clarify the position of journalists, privacy, discovery and the Courts.

  • Privacy Commissioner John Edwards

‘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.

 

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