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].

(Dotcom and) Ortmann v The United States of America

High Court media release on a judgment on the extradition of Mathias Ortmann, Bram van der Kolk, Kim Dotcom, Finn Batato to the United States.


Result

In a judgment released today the High Court has confirmed that Mathias Ortmann, Bram van der Kolk, Kim Dotcom, Finn Batato (the appellants) are eligible for extradition under section 24 of the Extradition Act 1999.

The United States Government has been seeking the appellants’ extradition to face trial on 13 counts including allegations of conspiracy to commit racketeering; copyright infringement; money laundering and wire fraud since 2012.

The High Court has found that the District Court decision in December 2015 finding that the appellants are eligible for extradition was flawed but that the errors in the judgment were immaterial because there are available pathways for extradition on each count.

The key legal questions

In extradition proceedings the primary role of the Court is to determine whether the requested persons are eligible for surrender in relation to the offences for which surrender is sought. Broadly speaking, this requires the Court to follow a two-step approach.

First, the Court must be satisfied that the alleged conduct constituting the essence of the offence for which surrender is sought correlates to an “extradition offence”. In this case, because there is an extradition treaty, this will depend on whether the conduct correlates to an offence listed in the NZ-US Treaty or deemed to be listed in it by the Extradition Act.

Second, if the Court is satisfied that the offences for which surrender is sought are extradition offences, it must then determine whether the evidence relied on by the requesting State (the US) is sufficient to justify a trial if the offence had been committed in New Zealand. This is what is commonly referred to as a prima facie case – is there sufficient evidence for a properly directed to jury to convict?

Contents of the judgment

The essence of the United States’ case is that the appellants, as officers of Megaupload, were party to a conspiracy to profit from copyright infringement by users of Megaupload’s services.

One of the central issues in the case is whether copyright infringement by digital online communication of copyright protected works to members of the public is a criminal offence in New Zealand under the Copyright Act. The High Court has held that it is not, contrary to the conclusion reached in the District Court. The appellants have therefore succeeded with one of the main planks of their case.

However, the High Court has found that a conspiracy to commit copyright infringement amounts to a conspiracy to defraud and is therefore an extradition offence listed in the USNZ Treaty. Further, other extradition pathways are available for all counts because of their correlation to a number of serious crimes in the Crimes Act. These offences are deemed to be listed in the Treaty by a provision in the Extradition Act, subject to various criteria being met.

The High Court has confirmed the conclusion reached by the District Court that the evidence relied on by the United States for the purposes of extradition does satisfy the prima facie case test against each appellant on each count. The High Court has also confirmed that the District Court was correct to dismiss the appellants’ applications for a permanent stay of the extradition proceedings for alleged abuse of process.

Decision

The District Court judgment finding that the appellants are eligible for surrender to the United States on all counts in the indictment is confirmed.


The full High Court judgment is here: Ortmann v The United States of America

High Court: Dotcom and co-accused eligible for extradition

The High Court has just released a decision saying that Kim Dotcom cannot be extradited for copyright infringement, but there are grounds for extradition on “general criminal law fraud provisions”.

NZ Herald: Kim Dotcom and co-accused eligible for extradition to US, says High Court

In the High Court finding released today, Justice Murray Gilbert upheld a decision by the District Court that there were grounds for the quartet to be extradited,

But the judge has also supported an argument made by Dotcom’s legal team that he and his former Megaupload colleagues cannot be extradited on copyright infringement grounds.

He said that was because “online communication of copyright protected works to the public is not a criminal offence in New Zealand”.

He said it meant the accused could not be extradited to the US on copyright grounds.

Instead, Justice Gilbert said there were “general criminal law fraud provisions” which covered the actions of the accused and they could be extradited on that basis.

He said he agreed with District Court judge Nevin Dawson that there was enough information to make the decision based on accepting a “record of the case” put forward by the US which detailed the evidence it claimed to hold against the Megaupload accused.

Dotcom’s lawyer is claiming a victory.

Dotcom’s lawyer Ron Mansfield claimed victory from the ruling, 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.”

That may be so, but if Dotcom can be still be extradited that is hardly a victory.

And it probably won’t be the last attempt to prevent extradition. I presume there are appeal steps yet to come.

NZ Herald has an interview with Dotcom on this: Kim Dotcom legal saga: Extradition to US over Megaupload still on cards but he claims court ruling is a ‘major victory’

What about Internet Party 1.0?

Dotcom’s Internet Party, combined with the Mana Party, failed to get close to the 5% threshold in the 2014 election, getting 1.42% of the vote (34,094), and with Hone Harawira failing to hold his Te Tai Tokerau seat so they missed out on getting into Parliament.

After the election Laila Harre resigned as leader – she recently indicated she had joined Labour and wanted to stand in an electorate for them.

Since then the party has maintained an online presence but with no sign of who is running the party and with a very low profile – Dotcom seemed to desert it.

Since the election in the monthly Roy Morgan poll the Internet Party has had no result (less than 0.5%) in every poll except for getting 0.5% in June and October this year.

They still have a website but there appears to be little new, and there is no sign of any people being involved – perhaps it’s become a robot party.

They keep things ticking over on their Facebook page. After Trump won the US election they posted:

Internet Party was feeling optimistic.
9 November ·
If Britain can get Brexit
and America can get TrumpNew Zealand can get the Left into power in 2017

That got 288 likes so there is still interest in the party. In early December:

We are stoked, of course.

But we still need people to write good articles for us, the Internet Party, the Infomation Party, the one which is genuinely about a better future in all aspects … as much as ever. Please put the word out to the good investigative journalists that you know, or who are friends of friends and so on …

Mid December:

KDC is being given a bad rap from radio announcers since Laila Harre joined the Labour Party. Laila is a great person but small parties never served her well. We are delighted to see anyone with her vision and passion achieve a position of influence and we sincerely wish her great success in achieving this.

While The Internet Party has an identity, a life and policies all of its own – KDC started this good work, and the fact that this party even exists with it’s awesome policies is completely down to him.

I am no spokesperson, but all of the positive things that our members can say about the Party or KDC will help. Speak it, write it, show your support, every bit helps.

Thank you 🙂

For political parties to have identities they need people, and there is no sign of who is involved.

They have a Twitter account but it’s not very active, with the last tweet in February. The account is authorised by Fred Look, from Colville on the Coromandel Peninsula.

The Internet Party Constitution & Rules on Elections.Org.NZ states:

10 PARTY LEADER

10.1 The Internet Party will have a Party Leader. The Party Leader is responsible for managing the Internet Party’s Parliamentary affairs, should it be represented in Parliament.

10.2 The Party Leader is an automatic member of the Executive Committee with full voting and speaking rights.

10.3 Should the Internet Party not be represented in Parliament, the Party Leader will be either:

10.3.1 The candidate ranked number 1 on the Party List by the Executive Committee in an election year; or

10.3.2 A Full Member of the Internet Party approved by 75 per cent of the Executive Committee

Harre was ranked number 1 on the party List in election year and has resigned so that provision no longer applies.

I’m not aware of a new Party leader being approved by the Executive.

I thought that the original constitution gave special power to the party founder but can’t see any reference to that now.

The party received 16 donations in 2015 totalling $676.65
internet_party_return_of_donations_and_loans_2015.pdf (PDF 11.29 MB).

That’s in contrast to 2014 donations of $3,500,000 from Kim Dotcom (and no other donations)
Internet_Party_return_of_donations_and_loans_2014.pdf (PDF 10.12 MB)

Both those returns were signed by Fred Look, who seems to be the only person publicly associated with the party now.

I presume that Dotcom’s money and input would be welcomed again but I also presume that would have to go through a democratic process.

Getting credible candidates and especially a credible and high profile leader could be a challenge.

The Auckland revolutionaries seem to have moved on from the Internet Party and are quietly taking over the Labour Party.

Perhaps Labour will do a Memorandum of Understanding with the Internet Party – involving money for influence?

Internet Party 2.0

After the failure of the Internet Party in the 2014 election – and their dragging down of the Mana Party with them – Kim Dotcom acknowledged that his brand was toxic.

So why has he floated the idea of another tilt at political ego?

That vote is meaningless – if Andrew Little asked his Twitter followers if he should stand next year he’d get a few positive votes as well. So would John Key, probably far more than Dotcom and Little combined.

It’s hard to know what sort of game Dotcom is playing here.

He is unlikely to get Mana or any other party wanting him to piggy back off their electorate chances.

He would have to find a high profile person to lead the party, and Laila Harre is unlikely to do it again, she recently said she wanted to stand for Labour.

Perhaps Dotcom thinks he could emulate Donald Trump’s success.

Like millions of people wanting to be the Nek Minit in social media, it seems that many people are trying to emulate Trump’s success. Winston Peters fancies his chances despite being the opposite of Trump in political experience, and even Little has dabbled.

But New Zealand politics is very different to US politics.

I would be very surprised if Internet Party 2.0 could become a serious contender next year – especially if Dotcom was prominent, and it’s hard to see him not being prominent if he tries to reboot his political ambitions.

But this could be just game playing by Dotcom. Is he trying to leverage his influence with another party?

Labour would love the sort of financial support he could provide, but any Dotcom association would be higher risk than the Memorandum of Understanding with Greens, which has so far been unsuccessful.

Just before Christmas Dotcom tweeted:

Perhaps he sees an opportunity from that. Earlier in December:

Perhaps he is just trying to stir things up.

 

Dotcom claims leaked data for election

On Twitter Kim Dotcom has been hinting at disruption and another attempted hit job on next year’s election in New Zealand, and claims there is a mass of emails waiting to be leaked that were the reason for John Key’s resignation, and will be seriously damaging for the National Government.

National looks in a very strong position, especially compared to the alternatives.

Is he claiming to have been responsible for all of those?

Really? That was an overplayed embarrassing fizzer for Dotcom and is likely to have contributed to the poor election result for the Internet Party.

I think he is overrating his influence a bit there.

Yesterday the Spin Bin posted Bombshell Kim Dotcom Exclusive: 2TB of Leaked Govt Data Will Stun New Zealand In 2017 which included:

You have tweeted that an expected release of government information will take down the National Party in the next general election in 2017. What types of material can we expect to see?

Kim Dotcom: Why do you think John Key resigned? This wasn’t about his family. It’s more likely about the next election and 2 terabytes of emails and attachments that were taken from New Zealand government servers. I heard from a reliable source that the Podesta emails seem like cotton candy compared to the amount of disgusting dishonesty the National government will see leaked at the next election.

Why would ‘a reliable source’ tell Dotcom about this (if it is true)?

Key must know. He’s taken the parachute. He can’t stomach the kind of embarrassment that Clinton had to endure with daily releases of dirty emails. And this time even his media cronies couldn’t have saved him. The Internet and alternative media of reputable truth-telling websites are taking over. Leaks are the new political reality. Over time this will be the cure against dishonest politicians. They just can’t survive in this new environment of information.

So hackers and political activists will decide elections, including next year’s New Zealand election?

Despite the drip feeding of emails by WikiLeaks into the US election it was still a close win for trump, and that was probably swung by James Comey’s intervention.

Many people believe that Donald Trump may be of the same ilk as Hillary Clinton. Would a Labour-led coalition government in New Zealand really be a material difference to your case or any significant improvement for the wider public in general?

Current polls suggest that Labour is nowhere near credible as an alternative government. Dotcom/Wikileaks/whoever would have to seriously discredit National and Winston Peters to ensure a Labour+Greens win.

And there would be a good chance of it backfiring, as happened last election where despite Nicky Hager’s book and Dotcom’s ‘Moment of Truth’ the Internet Party flopped and Labour dropped to a record low.

Kim Dotcom: Donald Trump and Brexit are the punishment the elites deserve. Will the Donald drain the swamp? We will have to wait and see. The swamp is exactly what led to the unlawful destruction of my business and the military-style raid and illegal spying against my family.

A Labour government in New Zealand would have no incentive to drag out the monstrosities committed by John Key and his Attorney General Chris Finlayson against my family.

If so what good would it do helping Labour into power? Dotcom just wants to disrupt everything?

The Attorney General is using every tool of power at his disposal to prevent the unavoidable legal victory that is coming my way. He will fail and he might end up in jail himself.

I won’t stop until the truth about the real Mega conspiracy is fully unearthed. And I expect a Labour government will want an independent inquiry into my case which will see the National Party in disarray and embarrassment for years to come.

That’s contradicting his “no incentive” claim – unless he intends giving Labour an incentive via some generous donations?

This will be a brutal and costly experience for New Zealand but it will also be necessary so that something like this can’t happen again.

Something like Dotcom’s legal and extradition problems?

It appears as if he is prepared to ‘disrupt more than ever’, be brutal and inflict a ‘costly experience’ on New Zealand for his own purposes. I’m not sure how voters would view that but I doubt they will play his game for him.

Dotcom lost credibility last election and failed. On election night he admitted his brand was a significant problem with voters. I don’t think that has changed – all that has changed are his tactics.

I don’t know how he will engineer an electoral swing as big as his ego.

Dotcom planning for 2017 election

Kim Dotcom:

I’m getting ready for 2017 NZ election. This time I’ll spend far less, corrupt media won’t stop me, will change Govt with brilliant plan!

dotcomelection2017

which should be NOT to get involved! Didn’t you learn that last time?

The beauty about my new plan is that media bias and character assassination won’t work. I figured out how to get the youth to vote in 2017
🤓

I’m extremely competitive. I hate losing. When I lose I don’t stop learning until I can win. I may lose a few times but in the end I’ll win.

I don’t know if that is serious or just stirring or posturing.

He might have trouble getting a party of any note together. The Auckland left seem to be trying their luck with Labour now.

Yeah but you need to get them to vote *for you*

No. Youth votes for fairness. Their minds are not yet polluted with greed. They care about others & the planet. NZ Greens might get a boost.

Youth mostly don’t vote.

I’m not sure the Greens would be keen on getting some help from Dotcom.

why did you lose in 2014, do you think? Was it solely down to “corrupt media”?

Mostly media. John Key & National have the mainstream media under control. I underestimated that. This time the media spin won’t help them.

Thats the good thing about learning. You keep getting better. I was a political amateur. Now I understand their game & how to win. Watch me!

Sounds like he’s got a lot to learn yet.

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.