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MegaUpload extradition order stands, says court, though Kim Dotcom claims victory

By | Published on Monday 20 February 2017

MegaUpload

The High Court in New Zealand has rejected an attempt by MegaUpload founder Kim Dotcom to stop his extradition to the US to face charges of copyright infringement, money laundering and racketeering. Though the man himself claims that the specifics of the ruling actually help his case, which still has further stages of appeal to go through before Dotcom can actually be forced into an American courtroom.

As much previously reported, the US government has being trying to extradite Dotcom and three of his former colleagues ever since it shut down MegaUpload on copyright grounds in 2012. Those extradition attempts have been caught up in a flurry of technicalities, but in December 2015 the New Zealand courts finally said Dotcom et al could be extradited to America. The four men then appealed, and re-presented their arguments – and a whole load more technicalities – last September.

The judge considering the case, Murray Gilbert, revealed his latest judgement earlier today, concluding that there were indeed grounds to extradite Dotcom under New Zealand’s extradition treaty with the US. However, Gilbert specifically ruled that those grounds were not based on the allegations of copyright infringement made against the former MegaUpload execs, but because of the accompanying claims of fraud.

That clarification was welcomed by Dotcom – who will appeal the ruling – because he says it confirms his side’s argument from the off, ie that copyright infringement alone was not sufficient to extradite the MegaUpload team to the US. Though, while the original arrest warrant issued against Dotcom did cite copyright crimes, at both first instance and on appeal the prosecution focused much of its efforts on arguing that the copyright infringement undertaken by MegaUpload was sufficient to constitute fraud.

It’s not unknown for prosecutors targeting copyright infringers to push for a conviction for fraud, sometimes to circumvent ambiguities in copyright law regarding the defendant’s liabilities, and sometimes because the law usually provides tougher sentencing for fraud compared to infringement. Though a charge of conspiracy to defraud requires the prosecution to present evidence beyond the mere distribution of copyright material without licence, and at the next stage of appeal Dotcom’s people are sure to argue that insufficient evidence has been supplied in this case.

Either way, Dotcom told the New Zealand Herald that this ruling constituted a “major victory” for his side, despite the extradition order still standing. “The major part of this litigation has been won by this judgment – that copyright is not extraditable”, he told the newspaper. “They [the authorities in New Zealand] destroyed my family, destroyed my business, spied on me and raided my home and they did all of this on a civil copyright case. We have won. We have won the major legal argument. This is the last five years of my life and it’s an embarrassment for New Zealand”.

He continued: “Now they’re trying through the back door to say this was a fraud case. I’m confident going with this judgment to the Court Of Appeal”.

Those further stages of appeal will likely take at least another two years to go through the motions, something Dotcom himself noted when he added: “We’ll be looking at a seven year total timeframe before there is a final resolution on this matter. I am now more confident than ever that we will prevail”.

If the whole matter ever does get to an American court, the US government’s case will likely focus more on copyright matters than the fraud allegations, which would make it an important trial for the music and movie industries, as Dotcom et al will plead safe harbours. That trial, therefore, would be another high profile test of the safe harbour protections provided to technology companies under US copyright law.



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