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Former MegaUpload execs who did deal with the prosecution could still face a ten year jail term

By | Published on Friday 20 May 2022


The two former MegaUpload execs who reached a deal with US prosecutors earlier this month to avoid extradition to face criminal charges in an American courtroom could still face up to ten years in prison, albeit in New Zealand.

It was confirmed last week that Mathias Ortmann and Bram van der Kolk – who have been fighting extradition to the US for ten years now – had reached a deal with the prosecution in the case, meaning they’ll face charges in relation to their time running MegaUpload in New Zealand rather than in the US. The two men seemingly decided that, while that deal does not end their legal woes, it was a deal worth doing because it means they’ll avoid extradition.

The US authorities shut down the file-transfer and video-sharing platform MegaUpload in 2012, accusing its management of facilitating and encouraging rampant copyright infringement. Four of the company’s execs were immediately arrested in New Zealand, with the US authorities then beginning what turned out to be the incredibly long process of trying to extradite the accused to the States.

Lawyers for the former Mega team argued that claims of copyright infringement – even criminal copyright infringement – were not covered by the extradition treaty between the US and New Zealand. But prosecutors argued that the MegaUpload enterprise facilitated and encouraged copyright infringement at a sufficient scale to basically constitute a conspiracy to defraud the copyright industries, which is grounds for extradition.

In the main the prosecution prevailed in court, but there were plenty of routes of appeal for the MegaUpload team to pursue, and all of them were pursued. However, all appeal options within the New Zealand courts have now been exhausted without success. Although any extradition still needs to be approved by the country’s justice minister, so in theory there is one more hurdle that could still stop the US authorities getting their way.

But Ortmann and van der Kolk’s willingness to do their deal with the prosecution suggests they were anticipating that political approval of their extradition was likely to be granted.

The two men announced last week: “We have reached an agreement with the New Zealand government and the United States Of America under which we have agreed to be charged in New Zealand for offences similar to those we face in the United States. Once those charges are heard by the New Zealand courts, the United States will withdraw its extradition proceedings against us”.

Those new charges were due to be formally presented in a New Zealand district court yesterday, but the case was immediately transferred to the high court in Auckland, meaning a first hearing will now take place next month. More details about the legal proceedings Ortmann and van der Kolk now face in New Zealand will become presented at that hearing.

But, according to the NZ Herald, the two men will be charged with conspiring as part of an “organised criminal group” to unlawfully profit from copyright infringement over a period of seven years from 2005 to 2012.

There will be four specific charges each of which has a maximum jail term of ten years. Although it seems likely that even if they were found guilty of all four charges, the different jail terms would be served concurrently. Plus, by reaching a deal with the prosecution, they may be able to negotiate a much less extreme sentence.

The most famous former MegaUpload exec – the company’s founder Kim Dotcom – has not accepted any plea deal, of course. He continues to be vocal about the case – and his willingness to fight it all the way – on Twitter. Obviously he too would prefer to face any charges in New Zealand rather than the US, but he’s not willing to cut any deal with the American authorities.

In some of his most recent tweets he’s noted the news that, over in the US, a new judge has been appointed to oversee the ongoing MegaUpload criminal case, with judge Anthony Trenga replacing judge Liam O’Grady.

No official reason has been given for the change, but Dotcom says it’s because it emerged O’Grady has shares in Disney. Dotcom has long claimed that the US government moved against him and his old company at the request of the big American music companies and Hollywood studios, so the judge’s Disney connections arguably constitute bias.

In addition to Dotcom, Ortmann and van der Kolk, the fourth New Zealand based former MegaUpload exec charged back in 2012 was marketing man Finn Batato.

He was dropped from the extradition case last year when it emerged he had life-threatening cancer. His lawyers had previously argued that, unlike the three other defendants, he didn’t have any shareholding in MegaUpload and therefore had much less control over the business than his former colleagues, and should be treated different by the prosecution as a result.