New Zealand’s Court Of Appeal has declined to block the extradition to the US of Kim Dotcom, founder of the long defunct piracy-enabling file and video sharing platform MegaUpload.
Dotcom faces charges in the US of criminal copyright infringement in relation to his role running MegaUpload before it was shut down by the FBI and US Department Of Justice in 2012. The NZ appeals court has now concluded that the country’s Justice Minister Paul Goldsmith went through the correct processes before approving Dotcom’s extradition.
That includes the minister’s consideration of whether Dotcom might face a “disproportionately severe sentence” if found guilty of his alleged crimes in the US - a disproportionate sentence being in conflict with the New Zealand Bill Of Rights Act.
Dotcom could face jail time of anything from 30 to 150 years if he is found guilty in the US. While that might seem disproportionately long, Goldsmith decided that - given the alleged scale of MegaUpload as a facilitator and promoter of piracy - a lengthy jail term would not “shock the conscience of properly informed New Zealanders”, which is the required legal test.
As part of his fight against extradition, Dotcom raised issues with the way Goldsmith employed that test, but those claims were rejected by the NZ High Court last year. And now the appeals court has done the same, confident the consciences of those informed New Zealanders would not be shocked too much by a 30 year plus jail term.
More than fourteen years have now passed since MegaUpload was shut down by the US authorities following complaints from the American music and movie industries. Prosecutors in the US began proceedings to extradite Dotcom and other MegaUpload execs almost straight away, accusing them of racketeering, money laundering and fraud, as well as copyright infringement.
That prompted years of legal wrangling. First Dotcom tried to fight extradition through the NZ courts, all the way up to the Supreme Court, but without success. Then Goldsmith had to approve the extradition in his role as Justice Minister and his decision to do so could then be challenged again through the courts, resulting in another round of legal battles. Which are still ongoing.
Along the way two of Dotcom’s former colleagues, Mathias Ortmann and Bram van der Kolk, agreed to plea deals, pleading guilty to various crimes, but within New Zealand, meaning they were convicted and served time there rather than in the US.
That prompted Dotcom to argue that his case should also be shifted out of the US to New Zealand, but the New Zealand Police have so far refused to charge him to allow that to happen. That decision by the police was also part of Dotcom’s complaint at the Court Of Appeal.
However, judges said that NZ Police were justified in not pursuing the case against Dotcom directly, because he was refusing to plead guilty, meaning taking on the case would be a much bigger undertaking. Plus US prosecutors wouldn’t agree to drop their charges against Dotcom even if charges were pressed in New Zealand.
And so, as next year’s fifteenth anniversary of the MegaUpload shutdown approaches, the US efforts to extradite Dotcom will continue, with a final appeal to the NZ Supreme Court now likely.
Earlier this year, Dotcom took to his account on X to argue that the bombshell US Supreme Court judgement in the major labels v Cox Communications copyright battle should result in his criminal case being dropped.
The civil copyright infringement case involving Cox and the criminal copyright infringement case involving MegaUpload both relate to internet services that enabled other people to pirate content - which legally speaking constitutes ‘contributory infringement’. Which is why Dotcom reckoned the Cox judgement was relevant.
“Because of the US Supreme Court decision in Cox”, Dotcom wrote, the US government has an obligation “to DISMISS the indictment against me”, because the “US Supreme Court decision renders all counts in the indictment invalid/unlawful”.
The Cox ruling narrowed the definition of ‘contributory infringement’ in the US, so that it only applies if an internet service primarily exists to facilitate copyright infringement or actively induces users to infringe. Dotcom has long argued that MegaUpload was nothing more than a cloud storage platform that allowed users to upload and share large files.
It’s definitely true that the Cox ruling is having a big impact on the music and movie industries’ legal manoeuvres against online piracy.
However, record labels, movie studios and US prosecutors would argue that it has no impact on the Dotcom case, because MegaUpload is accused of running an incentives scheme that encouraged users to upload copyright infringing content. In other words, it did induce the infringement.
Which means, if it can be proven in court that the MegaUpload incentives scheme did indeed encourage users to private music and movies, Dotcom could still be held liable for contributory infringement, even with the narrower definition of contributory infringement post-Cox.
