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Prosecution delivers closing arguments in MegaUpload extradition hearing

By | Published on Monday 23 November 2015


The prosecution today presented its closing arguments in the long running MegaUpload extradition hearing in New Zealand, with defence lawyers having yet one more attempt at halting the proceedings.

As much previously reported, the US government wants to extradite MegaUpload founder Kim Dotcom and three of his former colleagues at the defunct file-transfer company to face charges of money laundering, racketeering and rampant copyright infringement.

The defendants’ lawyers have spent much of the already many times delayed extradition hearing arguing that the whole matter should be further postponed, because, they say, restrictions on how their clients can spend former MegaUpload funds are depriving Dotcom et al from getting a fair hearing.

That argument was presented before the court case began, on the first day, and when it got to the case for the defence, though the judge overseeing the proceedings, Nevin Dawson, has refused to postpone matters any further at every turn.

If it ever gets to court in the US, the MegaUpload case will in no small part revolve around those pesky safe harbours in copyright law, which say that tech firms cannot be held liable for infringement that occurs on their networks providing they have a content takedown system in place for copyright owners.

During the extradition hearing, defence lawyers argued that MegaUpload fulfilled its obligations to secure safe harbour protection in both the US and New Zealand, which means that if it could be held liable for infringement now, that would set a dangerous precedent for all tech players, including YouTube, Facebook and Twitter.

Which may or may not be true, though at this stage the key issue is not whether Dotcom et al are actually liable for the infringement of their old customers, but whether [a] the US government has a sufficient case against the MegaUpload men to justify extradition and [b] whether the crimes they are accused of are covered by the extradition treaty between New Zealand and the US.

That latter point is perhaps most important, because straight copyright infringement is not covered. But, says the prosecution, the level of infringement that Dotcom and co encouraged and enabled constitutes “fraud”, which is covered. Why then, countered the defence, had American prosecutors charged their clients with infringement and not fraud.

Summing up, Christine Gordon, the New Zealand Crown lawyer representing the US, said the defendants had “mired” the extradition process in irrelevant and complex legal arguments by attempting to “conduct their trial defence through the extradition process”.

She then said that lawmakers in New Zealand surely intended their copyright laws to cover the actions of Dotcom and his colleagues, because “it cannot be right the biggest infringers go free, while a man who peddles CDs out of his boot at a local market gets a harsh sentence”.

According to 3 News, on the fraud point, Gordon again argued that the defendants had clearly defrauded copyright owners, before claiming that “even the respondents used that word in referring to their activities”. She then pulled out the records of more conversations between the defendants, from back when they were running their old business, in which one of the accused, Mathias Ortmann, indeed referred to his company’s actions as “fraud”.

It was Gordon’s insertion of new evidence at this stage that prompted defence lawyers to again call for a postponement of the hearing. After the Mega attorneys dubbed the late delivery of new evidence as an “ambush”, judge Dawson said he’d consider postponing proceedings just long enough for those lawyers to review the new materials.

The case continues.