New Zealand Judge Won't Rubberstamp Kim Dotcom Extradition; Orders US To Share Evidence

from the not-so-easy dept

Once again, it appears that the US prosecution of Kim Dotcom and the other Megaupload folks suggests that US federal prosecutors have been acting like they have a slam dunk case, whereas every time anyone digs into the details, all of the important infrastructure is missing. The latest is that the US seemed to assume that as long as they kept going on and on about the "mega conspiracy" and the "money laundering" involved (even if that "laundering" appeared to be normal payments to service providers), that New Zealand would rubber stamp the extradition request without reviewing any of the evidence.

No such luck.

The New Zealand judge is raising significant questions about the US's case while also ordering the US government to provide copies of the evidence it is using to Dotcom's lawyers -- something the US insisted was not necessary. What's clear is that the US really thought that New Zealand would just roll over and hand over Dotcom because they sprinkled the indictment with scary phrases like money laundering and conspiracy. But, as the judge notes, the US seems to be taking a somewhat extraordinary interpretation of copyright infringement -- using civil copyright infringement as the basis for a criminal copyright charge... and then pumping up that criminal copyright charge into conspiracy and money laundering charges. And that's important, because New Zealand won't extradite someone if the case is really just about copyright infringement.

The distinction between civil and criminal copyright infringement is an important one -- and confusion over this point is one that the US government has been relying on in seizing various domain names for the past couple of years. It's good to see that the judge here was not at all confused by this, and seemed to get to the heart of the matter pretty quickly.
As I have already observed this is a case that is more complex than many. There is a complex factual matrix and the justiciable issues are complicated by the fact that the United States is attempting to utilise concepts from the civil copyright context as a basis for application of criminal copyright liability which necessitates a consideration of principles such as the dual use of technology or what they be described as significant non infringing uses.

The existence of criminal copyright charges is a keystone to providing the unlawful conduct element of the racketeering, money laundering and wire fraud charges...
Separately, the judge was not at all persuaded that it would be too difficult to do discovery for the extradition phase of this case, because the evidence is all in electronic form. Yes, the US argued that going through a discovery process to share evidence with Dotcom and his lawyers would be too difficult. But the judge is having none of that:
During the course of arguments the issue was raised as to the difficulty of effecting disclosure given that so much material is in electronic format. During the course of argument I reminded counsel of recent amendments to the High Court Rules relating to electronic disclosure and what is a widespread and growing practice of the use of computer equipment and specialised search techniques to swiftly recover relevant material, to eliminate irrelevant or repetitive material and to utilise a number of search techniques including keynote searching, concept searching, clustering technology, predictive coding or document prioritising technology, email threading and near duplicate identification. It may not be necessary under the circumstances to engage, at this stage of the process, in native file review but there are procedures available and that are utilised within the civil arena that will enable the prompt disclosure of relevant information.
Perhaps I'm mis-translating my New Zealand, but I sense a certain hint of sarcasm in that statement. The US government is really claiming that finding the relevant documents for disclosure is too difficult because it's in electronic format? Really? Thankfully, it appears that the judge in New Zealand isn't as technologically clueless as US prosecutors expected him to be.


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    Josh in CharlotteNC (profile), May 30th, 2012 @ 7:52am

    Digital is hard!

    The US government is really claiming that finding the relevant documents for disclosure is too difficult because it's in electronic format? Really?

    Of course it is harder to deal with electronic documents. Think what it would take to get those documents back to New Zealand and Dotcom's lawyers:

    First you have to print it out (and toner is expensive!).
    Then you'd have to fax it to New Zealand (international long distance charges! and that's only if you can manage to get it through those fax machines and the horrible paper feeders that jam!)
    Once in New Zealand, you need someone to put it in an envelope or something (paper cuts!).
    Then you'd have to hire a courier to get it to the lawyer (and that's after exchanging real money into that fake looking stuff you foreigners use!).

    Complicated! Remember how much trouble it was to get Senators' campaign contributions into an electronic form? This is even harder!

    I suppose you'll tell us to use some internet service for sharing files. But those are the ones we're shutting down!

    Signed
    -US Government

     

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      gorehound (profile), May 30th, 2012 @ 8:54am

      Re: Digital is hard!

      Fuck You USA Government ! Soon you may feel the wrath of the American People who are waking up more and more to the fact that you are spitting on our Constitution and trashing what our Founding Fathers have said so many years ago.
      "History is Doomed To Repeat Itself" .
      Throughout History we have seen just what happens when a Government takes advantage of the people, cozies up to Church, and takes as much Money in as they can.And need I have to say jailing Citizens on trumped up charges which we have also seen.
      your day will come so enjoy all your money and power now because there is another saying everyone knows, "The Bigger They Are The Harder They Fall" .
      Kiss My Ass Washington DC ! I hate your whole corrupt system.

       

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      Hiding12, Jul 10th, 2012 @ 9:15am

      Re: Digital is hard!

      Or you could try suggesting a compromise by trying to get leave to provide the documents in electronic form. Transferring between servers, ofcourse it would still be costly but really you can't compromise justice.
      Is 1 out of 22million documents reasonable?

       

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    identicon
    Anonymous Coward, May 30th, 2012 @ 8:02am

    I would say that the judge sort of missed half the law, ignoring the criminal copyright laws of the US entirely. New Zealand has similar laws regarding resale of copyright goods without permission, I am not sure why he is missing the boat.

    Makes me think someone knows which door to slide the fat envelope under!

     

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      ComputerAddict (profile), May 30th, 2012 @ 8:06am

      Re:

      "...the United States is attempting to utilise concepts from the civil copyright context as a basis for application of criminal copyright liability..."

      Yea its like he never even mentioned the criminal charges.... oh wait, nevermind.

       

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      Anonymous Coward, May 30th, 2012 @ 8:22am

      Re:

      "Makes me think..."

      Judging by the rest of your post, I doubt it.

       

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      fairusefriendly (profile), May 30th, 2012 @ 8:24am

      Re:

      you do realize you just made an argument for not granting extradition.

      If NZ has similar laws and "crime" was committed by a citizen within his own country, there is no need to cart him off to another country to be prosecuted.

       

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      G Thompson (profile), May 30th, 2012 @ 8:24am

      Re:

      I don't think you understand the concepts of jurisdiction and procedural fairness do you.

      Stop trying to portray US-centric laws and other irrelevant legal bullshit onto what New Zealand and other countries actually do. Also you need to understand even though the current New Zealand Government might roll over for the USA, the Judiciary is not beholden to the Government and has a long history of actually not taking the USA (or other jurisdictions) at their word and instead requires procedures like evidence to be fully complied with.

      Oh and Judges in NZ and AU are quite ofey with the intricacies that go with handling digital evidence nowadays.

      Also I would be very hesitant if I was you in actually going any further with that allegation of bribery, the defamation laws in NZ are quite clear and your constitution will not protect you As Gutnick proved.

       

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        Anonymous Coward, May 30th, 2012 @ 9:18am

        Re: Re:

        "ofey"?
        Context suggests you meant 'au fait' french words,
        like entrepreneur, machines and competition.

        and shills are always convinced the other side must be trying to use the tricks their favorite organisations engage in. When you live in a sewer, naturally you think everything smells of sewage and everybody is covered in it too.

         

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          G Thompson (profile), May 30th, 2012 @ 9:43am

          Re: Re: Re:

          oops.. yep meant au fait. Seems Techdirt for some reason doesn't have the autoconverter macro that I use in MS Office to change my easy spellings into French.. There should be a law! ;)

          Yes I know I'm lazy! Though in my defense it's 2:42am here at moment :(

           

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      Anonymous Coward, May 30th, 2012 @ 8:26am

      Re:

      "I would say that the judge sort of missed half the law, ignoring the criminal copyright laws of the US entirely. New Zealand has similar laws regarding resale of copyright goods without permission..."

      Citation, please, boy?

       

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        TtfnJohn (profile), May 31st, 2012 @ 8:55pm

        Re: Re:

        "resale of copyright goods without permission."
        I'm assuming after the first sale from a book or record store, or web site of a physical good such as a book, recording, movie DVD or such like where the content provider has been paid and where, one day if the gods of creative accounting and last quarter earnings approve, the artist may but just may get their royalty that resale of said item is currently illegal? Not that I've heard.

        But if you're right then the biggest pirates around aren't on the Internet and never have been. They're at the charities, churches, scout and guide rummage and garage sales, Salvation Army sales and on and on it goes.

        So I, too, am interested in a citation for your startling statement, young fella, me laddie.

        I know the MPAA/RIAA types have wet dreams about this but it's not illegal yet, as far as I know.

         

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      Duke (profile), May 30th, 2012 @ 8:55am

      Re:

      Actually, having a quick skim through New Zealand's Copyright Act (which is fairly similar to the English one, so I'm assuming the legal terms mean more or less the same thing), while there is a criminal offence on selling infringing goods, there doesn't seem to be one on reselling, nor on distributing online files (rather than physical objects).

      This would explain why the money laundering etc. parts are so important - if there's no copyright-related criminal law in New Zealand to cover what Dotcom is accused of doing, they're not going to extradite him for that.

      [Similar reasoning to why the US are trying to extradite Richard O'Dwyer from the UK using conspiracy to defraud rather than copyright infringement - copyright infringement probably won't stick here.]

       

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        Anonymous Coward, May 30th, 2012 @ 12:15pm

        Re: Re:

        Well, let me give you some techdirt logic back:

        a copy is the same as the original, except it is a copy, and they still have the original. Charging for access to something is a "sale", not a resale. Mega was (apparently) selling access to infringing material, and they were doing it knowingly.

        There is enough there for any good lawyer to work from. Remember, for extradition, they don't have to find him guilty in New Zealand. They only have to show a reasonable case (and I think it is fair to say they have it).

         

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          A Non-Mouse, May 30th, 2012 @ 12:45pm

          Re: Re: Re:

          If Mega is guilty of "selling access to infringing material" then so is Comcast, AT&T, and every other ISP on the planet.

          Real-world logic, right back at ya.

           

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            Anonymous Coward, May 30th, 2012 @ 1:10pm

            Re: Re: Re: Re:

            Umm, no. Failure.

            ISPs are only blank connectivity providers. They charge for general internet access. They don't market all the latest movies for free or anything like that. They don't play 60+ minutes of a pirated movie for free and then force you to get a membership to see the rest. They don't give you restricted download speeds or limited file counts to try to lead you to buy a "download pass" to get at infringing content.

            Your logic doesn't add up.

            However, you have successfully shown why the "service provider" terms of DMCA are overly broad and allow for business models predicated on infringement "until they are caught".

             

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              The eejit (profile), May 30th, 2012 @ 1:23pm

              Re: Re: Re: Re: Re:

              Um, no. That's not what Mega did. Comcast own NBC Universal, and as the Jay Leno Show shows, it's one rule for us and another for them. They infringe on copyrights all the time on that show, so why have none of them been arrested and charged with criminal copyright infringement?

               

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              Anonymous Coward, May 30th, 2012 @ 1:45pm

              Re: Re: Re: Re: Re:

              Obviously you never used Megaupload. I did, hint it wasn't for piracy, it was to download freely distributed ROMs for Android and developer created apps.

              "They don't market all the latest movies for free or anything like that."

              Megaupload NEVER marketed all the latest movies for free. Or anything like that. HOWEVER, users did upload movies to the site and may have shared those links with others or put them up elsewhere. However, Megaupload is NOT able to control what it's users may or may not do using it's services. It can however take action if brought to it's attention.

              "They don't play 60+ minutes of a pirated movie for free and then force you to get a membership to see the rest."

              Again, Megaupload NEVER did that. I have a friend who used to visit Megavideo to watch tv shows and movies, I'd be at his house when he'd say check this out. Not once did a video stop playing after 60+ minutes and then force you to pay to see the rest. It was free from the get go. The links that led to it were placed in various places by some users.

              "They don't give you restricted download speeds or limited file counts to try to lead you to buy a "download pass" to get at infringing content."

              And this last one is major BS. I never once paid to get an account to Megaupload. Why? Because the speeds were anything but restricted. Which is the reason why many XDA Developers used Megaupload to distribute their ROMs and software. The speeds were very good (300+ kb/s). Heck, at that speed you can get about 700 MB of data in an hour or so (assuming constant continuous speed).

              As for limited file counts, well, that's BS. Unless you mean free users could ONLY download one file at a time, in which case that is true. But not once did I have to wait to get another ROM immediately after downloading one. The moment one ROM finished downloading I'd fire up another one.

              "Your logic doesn't add up."

              Funny, yours adds up even less. In fact, yours is nothing but outright lies based on my own (as well as others) personal experience.

              I do love your comment though. It's comments like those that make it easy to take people like you less seriously. Someone with any basic knowledge of something (in this case use of Megaupload) can easily rip it apart for others, who may not know how full of it you are, to see.

              Oh and as for "Umm, no. Failure." What are you, 10? The only people who write things like "sorry, fail" are trolls and pre-pubescent (and idiotic) boys. I think you may fall into both categories.

              This schooling brought to you by me, an AC with a clue.

               

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              Karl (profile), May 30th, 2012 @ 3:39pm

              Re: Re: Re: Re: Re:

              They don't play 60+ minutes of a pirated movie for free and then force you to get a membership to see the rest. They don't give you restricted download speeds or limited file counts to try to lead you to buy a "download pass" to get at infringing content.

              Leaving aside whether Megaupload did this, it is true that there are plenty of sites that do these things.

              Not once has any one of these activities ever been found unlawful in a court of law.

              There's a good reason for this: none of these things are (nor should be) considered charging for content. They work exactly the same no matter what is transferred.

              you have successfully shown why the "service provider" terms of DMCA are overly broad

              If you think "service provider" should be an ISP, then you're going to have a really, really hard time explaining why 512(c) ("Information Residing on Systems or Networks At Direction of Users") or 512(c) ("Information Location Tools"). The former clearly applies to sites like Megaupload (among many, many others); the second clearly applies to search engines.

              You're also going to have to explain why your definition of a "service provider" explicitly only applies to 512(a), and Congress purposefully added a second definition in 512(k)(1)(2), which applies to all sections, in which a service provider includes "a provider of online services."

              The terms are exactly what Congress intended, and have been interpreted by judges exactly as they should be. They are not "overly broad" in the least.

               

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          TtfnJohn (profile), May 31st, 2012 @ 7:57pm

          Re: Re: Re:

          "Remember, for extradition, they don't have to find him guilty in New Zealand. They only have to show a reasonable case (and I think it is fair to say they have it)."

          Then why is it so difficult to take part in discovery? In any other case I'd say they don't have a reasonable case, or reasonable cause once they start to balk on that one. So, in fact would Dotcom's lawyers and so, in fact, would most judges hearing and extradition request.

          Not even the United States gets an extradition granted just by asking for it and trying to duck minor details like discovery. Unless, of course, these days, they're asking England for one of it's citizens for doing something perfectly legal there.

          Extradition requests also require that the country making the request have a high probability of conviction not just "enough there for any good lawyer to work from" which, in any event, in a criminal case they do not from what we all have seen so far.

          Remember that selling access to a site and it's contents isn't unusual or, in and of itself, evidence of criminal activity or the Wall Street Journal and New York Times must be among the biggest crooks in the United States behind their paywalls.

          Also, "apparently" isn't the test of a criminal conviction which is "beyond a reasonable doubt" in both New Zealand and the United States. You may think they have a reasonable case. By not revealing that case in discovery I'm forced, so far, to say that they have nothing. Or less than that.

           

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      Ninja (profile), May 30th, 2012 @ 9:44am

      Re:

      New Zealand has similar laws regarding resale of copyright goods without permission

      Except Megaupload never sold any copyrighted work and had DMCA procedures even though it wasn't under US jurisdiction. Troll harder, you can do it!

       

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        Anonymous Coward, May 30th, 2012 @ 9:49am

        Re: Re:

        "New Zealand has similar laws regarding resale of copyright goods without permission"

        "Resale" indicates that the copyright holder has already been paid for the product.
        Once it is sold, it can be resold for as much or as little as the current owner wants for it.

         

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      Anonymous Coward, May 30th, 2012 @ 10:01am

      Re:

      If anything, the fat envelope would be coming from the USA... so, argument failure. But I see you did your troll job.

       

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      Loki, May 30th, 2012 @ 11:51am

      Re:

      More like you are the one who missed half the law.

      The judge is asking for the relevant document showing that actual criminal copyright took place, for which extradition is allowable, as opposed to just civil copyright, for which extradition is not allowable.

      I find their assertions of "we have more than enough proof, trust us" to be about as reliable as their assertions they had more than enough proof of weapons of mass destruction in Iraq.

       

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        silverscarcat (profile), May 30th, 2012 @ 1:58pm

        Re: Re:

        At least for Iraq, they had the sales receipts for those WMDs.

        The fact that they couldn't get a refund on sales from the 1980s isn't relevant.

         

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      Karl (profile), May 30th, 2012 @ 12:26pm

      Re:

      ignoring the criminal copyright laws of the US entirely

      Every single thing the judge said applies to U.S. copyright law as well. Even if the government's allegations are true, none of "Dotcom's" actions have ever been considered criminal infringement in any U.S. court of law.

      New Zealand has similar laws regarding resale of copyright goods without permission

      Unfortunately for you, that this is not remotely what Megaupload was doing.

       

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      Acslawarecrooks, May 31st, 2012 @ 12:36am

      Re:

      Why was this comment flagged, I thought that the idea of this site was to discuss things. This commenter made a point that I am sure not many agree with, but he did not indulge in ad hominid attacks just presented the issues as he saw them. So rather than hide his comment why not refute it. We should only flag posts that are personal attacks not if we disagree. We do after all believe in FREE SPEECH not just speech we agree with

       

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        Anonymous Coward, May 31st, 2012 @ 7:41am

        Re: Re:

        I think the comment was flagged because it's one of the usual trolls. When a ruling is in his side's favor, the law is just and infallible and sucks to be the rest of us thieving pirates. When a ruling is against his side or a judge smacks down a copyright troll or copyright holder for overreaching or something, then the law is wrong and the judge has been paid and obviously the laws need to be changed to reflect whatever it is his side wants them to reflect (which is something he has actually said, assuming it's the same troll I suspect it is).

        I do agree that we should only flag posts that are personal attacks or just outright trolling, but there comes a point where some people come here only to be disruptive and it's worth noting that the comment is still there. It may be flagged but it's easily viewable. In fact, it says "Click here to etc." Let's not ruin things by saying, "So rather than hide his comment why not refute it. We should only flag posts that are personal attacks not if we disagree. We do after all believe in FREE SPEECH not just speech we agree with" because all that's doing is setting up the stage for the other troll AC to show up and start conflating a flagged comment with outright censorship ala SOPA (the difference between the two has been pointed out and explained to the point of being an annoyance).

         

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      TtfnJohn (profile), May 31st, 2012 @ 7:40pm

      Re:

      I don't think he missed the boat at all. He's more concerned that US prosecutors missed it or ignored it completely.

      Discovery is normal in any legal proceeding which you seem to want to ignore. Even more so in extradition hearings. Dotcom's legal council and the judge seem to want to see what the United States has that would justify an extradition that they have said it's unnecessary for him and his court to see because it would be too "difficult".

      That alone will make a judge snarky, particularly one who who sees an attempt to elevate a civil case to a criminal one improperly simply to get an extradition. The lecture on how to do discovery of electronic records follows that observation to show those representing the United States how this is done. One that has the blessing of the New Zealand High Court.

      Put another way he's told then you WILL do this and this is HOW. Whether or not U.S. and New Zealand criminal copyright laws are the same is immaterial. Though it appears they're not.

      And he's reminded them that he is not about to extradite someone on grounds of civil infringement so, again, he says "my court, my country, you do it my way."

      The only one, as usual, missing the boat is you.

       

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    Anonymous Coward, May 30th, 2012 @ 8:08am

    I would say that the judge sort of missed half the law

    Yes you would. You are a trolling.

     

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      Anonymous Coward, May 30th, 2012 @ 8:43am

      Re:

      A trolling what?

      Dickbag

      Cuntfarmer?

      Asshole

      Bitchcheese?

       

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      identicon
      Anonymous Coward, May 30th, 2012 @ 8:43am

      Re:

      A trolling what?

      Dickbag?

      Cuntfarmer?

      Asshole

      Bitchcheese?

       

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    fairusefriendly (profile), May 30th, 2012 @ 8:11am

    see i was thinking the issue with electronic documents was the conditions of bail. Didn't kimDot have a restriction against using computers as part of his bail conditions.

     

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      :Lobo Santo (profile), May 30th, 2012 @ 8:22am

      Re: Provisio Injuctis!

      Are his defense attorneys under the same restrictions?

       

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        fairusefriendly (profile), May 30th, 2012 @ 8:25am

        Re: Re: Provisio Injuctis!

        probably not, but i would figure they would have to show him the documents to get his input (ala the upload link that he only used to test, which was never published so anyone other then him could see).

         

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      G Thompson (profile), May 30th, 2012 @ 8:32am

      Re:

      That condition of bail was removed, also it's irrelevant in a court procedure since counsel has no restrictions as Lobo above states.

      This is the whole problem, the US Governemnt is denying the rights of a defendant to know fully all charges with all evidence presented so that they can fully and fairly rebut allegations with no bias.

      This is called "Procedural fairness" (you might now it as natural justice) and is the cornerstone of the legal system in Commonwealth countries.

       

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        Jay (profile), May 30th, 2012 @ 9:40am

        Re: Re:

        Hmmm. America's laws don't reflect that procedural fairness right now. That has to do with the prosecutors having so much power they are near immune to poorly thought out prosecutions.

         

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          Anonymous Coward, May 30th, 2012 @ 10:08am

          Re: Re: Re:

          Our "procedural fairness" laws are 200 year old amendments to the Constitution. Being such, their original context is deemed an inscrutable mystery and therefore have been made obsolete in favor of the more ethical justice afforded by the Wars on Everything We Don't Understand.

           

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    wallow-T, May 30th, 2012 @ 8:26am

    Doesn't matter if the case against Kim Dotcom falls apart, though it would be a bit of an embarrassment.

    Megaupload was destroyed. Mission accomplished!

     

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      Justin Olbrantz (Quantam), May 30th, 2012 @ 8:31am

      Re:

      Not true. The mission isn't just to destroy MegaUpload, it's to hang, draw, and quarter Kim Dotcom as a terrifying example to other would-be site admins.

       

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        :Lobo Santo (profile), May 30th, 2012 @ 8:35am

        Re: Re: Bah!

        The mission was fear, pure and simple.

        The United States in one terrorist act scared shitless all of the file locker sites on the internet.

         

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        Logo, May 30th, 2012 @ 11:04am

        Re: Re:

        I'd say what has already happened to Kim Dotcom is a terrifying example. 2 Months in jail, a not so pleasant police raid, and the effective destruction of his business and source of income (other than investments/savings).

         

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      Atkray (profile), May 30th, 2012 @ 8:39am

      Re:

      On the surface yes, but I think they want to make sure it stays destroyed and send a message to others. To do that they need to ruin everyone associated with it. Permanently

       

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      •  
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        That Anonymous Coward (profile), May 30th, 2012 @ 5:28pm

        Re: Re:

        Sadly no. The idea that it is remotely possible for an anti-terrorism team to swoop into your home and hold your family at gun point anywhere in the world did what it was supposed to to. It scared the crap out of cyberlockers.
        Several have folded, more will follow as they have removed file sharing features.
        Cyberlockers needed to take a huge hit because 6 strikes can not detect downloads from them.
        The fact that members of the cartel were reaching out asking to have material posted on Mega's holdings really should be a wake up call that this is bogus.
        But it boils down to trying to use fear to remove what you dislike when you can't purchase laws to stop it.

         

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      Anonymous Coward, May 30th, 2012 @ 8:55am

      Re:

      Reading Dotcom's story and flamboyantness... I wouldn't doubt if that the first thing he would once he is deemed innocent or the case is dismissed is calling the service providers, paying the bills, and putting all the Mega Services back online as fast as possible.

       

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      techflaws.org (profile), May 30th, 2012 @ 9:05am

      Re:

      Mission accomplished!

      Right, piracy has stopped.

       

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    •  
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      WDS (profile), May 30th, 2012 @ 9:39am

      Re:

      "Megaupload was destroyed. Mission accomplished!"

      Wasn't that announced from the deck of an aircraft carrier???

       

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    That One Guy (profile), May 30th, 2012 @ 8:31am

    Please tell me there was some head explosions when the RIAA/MPAA branch of the government was actually told 'No' for once.

     

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      Anonymous Coward, May 30th, 2012 @ 8:39am

      Re:

      I don't know about explosions, but I'd like to see some very public tantrums, posted in media, about how the judge is refusing to cooperate with the case.

       

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        G Thompson (profile), May 30th, 2012 @ 8:45am

        Re: Re:

        The interesting thing with that is that talking about New Zealand citizens be they government employees, Judges, or otherwise your Government and media have to be very cogent on New Zealand's defamation laws..

        And Yes I know you all have the 1st amendment etc, it doesn't mean squat and neither does the latest bill about Forum shopping (which was only really for UK anyway). Also the USG doesn't particularly want NZ'ers pissed off at em.

        This is not going to end well for the DoJ no matter how they spin this

         

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        •  
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          Chargone (profile), May 30th, 2012 @ 7:27pm

          Re: Re: Re:

          heh. NZ does have an 'unfortunate' history of standing up to the USG at awkward moments.

          there's reason US warships don't come here, for one :)

           

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      G Thompson (profile), May 30th, 2012 @ 8:40am

      Re:

      Probably not but reading the Appendix of documents and other evidence that needs to be now disclosed ESPECIALLY parts (a) and (b) the RIAA/MPAA/, ICE, and DoJ will be going apeshit.

      I think they will balk and try to appeal or just claim they were lost or that they are commercial property like they did in the iiNet original court hearing. Especially part (a)

       

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        Chargone (profile), May 30th, 2012 @ 7:29pm

        Re: Re:

        i have a sneaking suspicion (not that i'm a lawyer or anything) that such tricks would get their case thrown out, or at least significant parts of it rendered inadmissible...

        (well, maybe not an appeal, but who knows how far that would actually get?)

         

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        TtfnJohn (profile), May 31st, 2012 @ 9:56pm

        Re: Re:

        I'm not at all sure they can balk on the list of items to disclose. They can go apeshit all they want.

        Parts 1(a) and 1(b) are standard disclosure documents that are being ordered. In short, just is your case even for civil infringement? And are is that extraditable in New Zealand? Part 1(c) tells them to establish that it is criminal infringement and to disclose their evidence backed up by the documents they have supporting order to disclose 1(d). The orders contained in 2, 3 and 4 are pertaining to evidence and documents concerning things like racketeering, wire fraud and money laundering backing the extradition claims for those.

        All this after citing case law from New Zealand's Bill of Rights, Australian law and case law and precedent originating from the Canadian Charter of Rights and Freedoms. All insisting on natural justice and the right of the accused to be confronted with all the evidence against him. Something going back to Magna Carta which applies to the United States as much as it does to Commonwealth countries.

        Put another way "produce the documents or no extradition". At which point Dotcom goes free unless there's an appeal. Reading through the ruling the judge has tried to make sure that there isn't a possible appeal by covering all the bases he can find, including relevant United States law.

        In short, Dotcom has the right to see the documents the judge has ordered disclosed by rights granted and guaranteed since the 13th Century. For the life of me I can't see an appeal on that basis denying those rights being successful in any Commonwealth country that makes any pretense of being democratic.

        This ought to be fun. :-)

         

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          Chargone (profile), Jun 2nd, 2012 @ 9:49pm

          Re: Re: Re:

          "...any Commonwealth country that makes any pretense of being democratic."

          which Should be all of them.

          Fiji (i'm not misremembering which country i'm talking about am i?) got it's membership suspended for screwing up on that note.

           

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    WDS (profile), May 30th, 2012 @ 8:45am

    I love it

    Not only is this judge not technology illiterate, but understands the lingo well enough to use it to bitch slap the US prosecutors making ridiculous arguments.

     

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      Anonymous Coward, May 30th, 2012 @ 9:03am

      Re: I love it

      Exactly. The judge is good at his job, which seems to be quite a slap in the face for the US prosecuter.
      Next move is on the prosecuter and it suddently turned from an easy victory towards a diplomatic crisis for him. Next step will be very important for the future of international cooperation with the US legal services.

       

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    Anonymous Coward, May 30th, 2012 @ 8:55am

    trying to figure out how anyone can defend themselves against charges, even though the charges themselves are known, when the evidence being used is kept secret. oh! i forgot! in typical US law enforcement style, no one is supposed to be able to defend themselves, particularly when the charges are over copyright infringement (with a smattering of money laundering and extortion thrown in to make the case sound sooooo much worse!), instigated by the USA entertainment industries, through a complete fit of jealousy because their business model is lacking in success compared to Megaupload's! bribing some top law enforcement official or other (who probably just happens to have ties to the industries) to do the dirty work for you rather than compete against someone is a real cowards way out! here's hoping this comes back to seriously bite all from US law enforcement and the entertainment industries involved in this fiasco in the arse and Dotcom is well compensated for what has happened, along with all those people that had personal files held on the 'Mega' servers. to get those people involved 'named and shamed' will perhaps make them think twice before continuing this kind of vendetta. i somehow doubt it though!!

     

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      That Anonymous Coward (profile), May 30th, 2012 @ 5:32pm

      Re:

      what evidence?
      Material offered to a Grand Jury has no one questioning its validity or if its even admissible in court.
      Then there is the little hurdle of not being able to serve a foriegn corporation, which kinda sorta hurts the whole 'conspiracy' idea as they claim Mega is the conspiracy.
      They seized data of innocent bystanders, and were going to allow it to be deleted to punish them, violating citizens rights.
      It seems violating the law is ok when your job is to uphold it.

       

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        TtfnJohn (profile), May 31st, 2012 @ 10:18pm

        Re: Re:

        Thing is that the American grand jury system has no standing outside of the United States. The U.S. has learned better than to try that dodge when requesting an extradition from Canada. The answer has always been the legal version of "so what? produce it anyway."

        That the US DoJ has, along with ICE and others, gone way over the line on this one is fairly well known. Which really has no bearing on the case in New Zealand. What does is that Dotcom has the right to be confronted with the evidence and documentation to be used against him before it is used. That's what discovery is all about. You may be able to hide that sort of thing behind an ancient and creeky Grand Jury system, the United States being the last English style justice system I'm aware of that still used that relic of the Star Chamber, but it doesn't work outside the United States.

         

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    Greevar (profile), May 30th, 2012 @ 8:57am

    Next step,

    is to replace that judge with a more amenable that will rubber-stamp the extradition.

     

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  • This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, May 30th, 2012 @ 9:01am

    Torrentfreak "reports" and Techdirt repeats. Snorezville, Pirate Mike. We all know how worried you are about your pirate friend Kimmy D.

     

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      techflaws.org (profile), May 30th, 2012 @ 9:05am

      Re:

      Boring troll is boring.

       

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      Anonymous Coward, May 30th, 2012 @ 9:06am

      Re:

      Quotation marks or not it still references the judge's decision. U mad?

       

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      The eejit (profile), May 30th, 2012 @ 9:17am

      Re:

      Kimmy D is a bad DJ. Stop it, you naughty, naughty infantile wheezebag of an assmonkey.

       

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      rubberpants, May 30th, 2012 @ 9:18am

      Re:

      *yawn*

       

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      Ninja (profile), May 30th, 2012 @ 10:00am

      Re:

      I'll bite.

      Actually, I am worried about Kim. If such blatant abuse of authority and ignorance of due process is allowed to go unbarred we could sooner or later see the tactical anti-terrorism squad kicking our very doors down over suspicion of terrorism. I know you Americans already swallow it and are apparently willing to take some in your arse too (NDAA/CISPA/etc) but please, keep it within your borders.

      Disclaimer: I have nothing against the Americans in general but this troll seems to be the typical mainstream spoon-fed peon that pretty much every1 in the world hates. As for the other Americans, and I know some awesome ppl in America, I can only wish you luck with this type of shill there.

       

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        Franklin G Ryzzo (profile), May 30th, 2012 @ 11:09am

        Re: Re:

        I know you Americans already swallow it and are apparently willing to take some in your arse too

        Don't forget the TSA... they take your statement quite literally... lol

         

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        Anonymous Coward, May 30th, 2012 @ 11:28am

        Re: Re:

        Mashes Sad and Insightful buttons repeatedly!

         

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        Karl (profile), May 30th, 2012 @ 12:33pm

        Re: Re:

        this troll seems to be the typical mainstream spoon-fed peon

        This troll is an anti-Techdirt, pro-big-media shill. Not only does he not represent most Americans, "mainstream spoon-fed peons" or otherwise, he doesn't even represent most American artists.

         

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    identicon
    Anonymous Coward, May 30th, 2012 @ 9:37am

    In a scenario where Dotcom manages to win this and gets to name his compensation, i say ask for one years access to all copyrighted material from all the compnanies involved, or an insane amount of money as an alternative.

    Recouporate his looses by bringng megaupload back online with access to said content.

     

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      Ninja (profile), May 30th, 2012 @ 10:04am

      Re:

      Actually, if it's true he had 150 million in his accounts, we should hope the jdges in New Zealand are as fast as they are wise (or seem to be with this kind of approach) and he has enough money in the end to bring everything back in order. I do believe the US will "accidentally" damage a lot of equipment though, this will cost a bit and will result in a pretty lengthy lawsuit in international courts...

       

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      The eejit (profile), May 30th, 2012 @ 10:23am

      Re:

      OR better yet, full access to all archived material, including deleted scenes.

       

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    •  
      identicon
      Anonymous Coward, May 30th, 2012 @ 10:34am

      Re: Treble damages... 3 years for 'willful prosecution'?

      This was a definite 'willful' act by the parties involved, using their own 'laws', shouldn't any punishment they receive be triple the 'statutory' amount?

       

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      Anonymous Coward, May 30th, 2012 @ 11:34am

      Re:

      If Kim gets any compensation from this, it would be great if he could take a bite out of the MAFIAA's warchest, though I'm sure they are too well shielded for that.

      Money is the lifeblood of parasitic middlemen/gatekeepers like the MPAA/RIAA. Deny them that, and you deny them the ability to buy the kind of political clout that lets them turn the FBI into their private police force.

      Note that a lot of this money comes from people that go to their movie theaters and purchase their DVDs, CDs, and Blu-rays. Everyone reading this can help by refusing to buy anything associated with the MPAA/RIAA, and by explaining the situation to friends that are less technically or politically knowledgeable.

      2012 was the year the cold war between the MAFIAA and the Internet turned hot. We're now going to have to choose between legacy Big Media or the Internet. You can't have both--the mission statement of the former is to destroy the latter, and one effect of the latter is to make the former increasingly irrelevant.

       

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        The Logician (profile), May 30th, 2012 @ 11:45am

        Re: Re:

        The difficulty with a boycott lies in the fact that they are often disorganized, and for any meaningful amount of monetary damage to be inflicted, hundreds of millions of people must participate simultaneously and for a sustained period of time. The damage must be severe enough and immediate enough that these organizations are crippled beyond the ability to recover. Inflicting any less than multibillion dollar damages upon them within a short time frame still leaves them with the ability to function. In other words, what you believe would happen to these companies and organizations if they suddenly and without warning took a 50 billion dollar loss?

         

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        That Anonymous Coward (profile), May 30th, 2012 @ 5:37pm

        Re: Re:

        Mega was poised to hurt the cartels alot.
        The music sales site for artists scared the crap outta the labels. Mega takes a flat 10% manages the whole backend and send the rest to the artist. No accounting tricks or games in contracts.
        Imagine a world where you could find music you like, not just the music the cartels focus groups decided you should like. Imagine being able to buy a track or 10 and know for sure your actively paying the artist, not some cartel.
        Imagine them having to count the Mega platform in the Billboard sales, just because its to big to ignore.
        The cartel fears artists connecting with fans and reaping the benefits, Dotcom was creating a platform to make it easy.

         

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      Karl (profile), May 30th, 2012 @ 12:45pm

      Re:

      i say ask for one years access to all copyrighted material from all the compnanies involved, or an insane amount of money as an alternative.

      Since this is a criminal investigation, he would have to sue the U.S. and N.Z. governments. The actual people behind it (RIAA/MPAA) would be untouchable.

       

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        The eejit (profile), May 30th, 2012 @ 1:25pm

        Re: Re:

        However, if he can prove a conspiracy involving specific people, he could probably get them on fraud, omney-laundering and bribery charges. Seems like a plan to me.

         

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        G Thompson (profile), May 30th, 2012 @ 9:35pm

        Re: Re:

        There are a few avenues open to the defence if an acquittal or similar is given especially if "with privilege".

        Things like criminal negligence, malicious prosecution (crim), mal/non-feasance, tortuous interference, etc

        Also costs of recovery, legal expenses, loss/damage of property, loss of business, plus other equitable remedies are fully available to them. The NZ govt could hypothetically claim innocent party to conspiracy involving the DoJ (USA) and USA firms and act as a friend of the court to fully make sure all of the above are carried through to conclusion. Would really piss of the USG but be very much showing to the NZ people and other countries that the rule of law is absolute and they will not kowtow nor pander to USA interests.

         

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          Chargone (profile), Jun 2nd, 2012 @ 9:58pm

          Re: Re: Re:

          the NZ public would Love that.

          the current NZ government? not so much... then again, the current NZ government likes making things up wholesale to cover their arses, then creating new fabrications when that comes back to bite them...

          (yeah, it's not as popular as it looks. while it wont the election, whatever the leadership occasionally comes out with, it has NO mandate. (when your coalition of 'everyone who hasn't outright refused to work with you' barely squeeks 50%+1 when 1/4th of eligible voters... didn't... and you had to go to court to resolve numerous 'within teh margin of error' seats AND had an actual Draw in one electorate (later resolved by 'special' votes, ie, people who were out of the electorate on election day and had to submit their votes through other methods) ... you don't get to claim a mandate from the people, and people will start looking at you funny if you start going on about the 'mandate of heaven'... those who even know what you're talking about would go 'umm... noooo... note monarchy. note Monarch. you don't get that.')

           

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    Anonymous Coward, May 30th, 2012 @ 11:04am

    MEEEEEEEEEEEEEEEEEEEEGA :)

     

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    anon, May 30th, 2012 @ 11:35am

    compensation

    America is so pathetic they cannot admit they have slipped up here and they are going down, this is a good lesson to the rest of the commonwealth how not to let America bully you into action, it could cost you dearly, and America definitely will not have your back, they are a bunch of woosies who cannot take responsibility for there actions. I am starting to understand why America is so hated in almost every country in the world, and no it has nothing to do with there freedoms they lost those on 9/11.

     

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    Rekrul, May 30th, 2012 @ 12:43pm

    So if the extradition falls through, where does that leave the case?

    I can't see the US just dropping the charges and returning all his assets just because they can't get their hands on him?

    As I see it, the most likely outcome, assuming that they can't extradite him, is that the charges stand, even if he's unreachable, and the US files forfeiture proceedings for everything that they seized. This will be decided by a US court, who will almost certainly grant it, since Dotcom won't be there to argue against it. Even if his lawyers are present, forfeiture cases rarely go in favor of the person whose property has been seized.

    So as I see it, while he may not be found guilty in a criminal trial, the US will probably keep his money, leaving him with no way to pay to put the company back together, or pay for his normal lifestyle.

    I hope I'm wrong, but somehow I can't see the US government just rolling over because they can't bring him to trial.

     

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      That Anonymous Coward (profile), May 30th, 2012 @ 5:41pm

      Re:

      They won't want to give it back, but the material they stole was owned by a corporation they can not by law serve.
      They have no case.
      They created a catch 22 for themselves, and if it manages to get damaged in turning it back over or they drag their feet any further they will look like the total bought and paid for lackeys of the cartels.

      Funny when a drug cartel buys off a government, people are outraged around the world. Why could entertainment cartels be looked on any differently?

       

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        Rekrul, May 30th, 2012 @ 8:07pm

        Re: Re:

        They created a catch 22 for themselves, and if it manages to get damaged in turning it back over or they drag their feet any further they will look like the total bought and paid for lackeys of the cartels.

        They don't care what they look like. Everyone already knows that they're bought and paid for.

         

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    Andrew (profile), May 30th, 2012 @ 2:43pm

    Judge Harvey

    FYI, the Judge dealing with this case literally wrote the book on technology law in New Zealand:

    http://www.wheelers.co.nz/books/9780408718134-internet-law-nz-selected-issues/

    http://www.med ialawjournal.co.nz/?p=150

     

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    Anonymous Coward, May 30th, 2012 @ 2:44pm

    I think it best for NZ to just quietly unfriend the USG and smile and nod at them whenever they come around, like you would with a dotty old neighbor.

     

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    Sambo, May 30th, 2012 @ 3:11pm

    This case looks watertight

    So apparently US Prosecutors have just admitted that even they can't find the documents for disclosure....

    They are just following the old 4 steps to save the MPAA/RIAA strategy.

    How does it go again?

    1. Find/arrest 'bad guy/Straw man etc?'.
    2. Make some stuff up and shout loudly and incoherently (Pirates, no seriously, Pirates!!!) and assume everybody else will go along with it (PIRATES!!!!!)
    3. ?????
    4. Hooray! We've stopped file sharing!

    That damn step 3. Get's em every time.

     

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      That Anonymous Coward (profile), May 30th, 2012 @ 5:43pm

      Re: This case looks watertight

      They also don't want to turn over the hard drives containing video of the raid that somehow were handed over to the Americans without the court being informed.
      They claim they had to bring them to the US to duplicate them...
      Maybe hiring all those former RIAA/BSA lawyers to work for DOJ was a really bad idea.

       

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        Chargone (profile), May 30th, 2012 @ 7:41pm

        Re: Re: This case looks watertight

        I'm wondering how long it'll take for the entire case to fall through.

        and after that, how long it'll take the US to just go with the 'covert ops' team to grab Dotcom Anyway.

        ... and whether they'll get busted the same way the French agents who blew up the Rainbow Warrior did... even if the enforcement of the sentence was then bungled.

        (it's unlikely, because that was something of a fluke, but it was a pretty epic fluke. Random Citizens ftw!)

         

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          That Anonymous Coward (profile), May 31st, 2012 @ 8:55pm

          Re: Re: Re: This case looks watertight

          The case is on life support at this point.
          They will not run a hit team to get Dotcom, he isn't worth the hassle.
          The game was never to actually have a trial, it was to devastate the cyberlockers.
          Can't go after Rapidshare.
          The HotFile case blew up on them, as they were caught by their own admissions committing copyfraud on a regular basis.
          So target Mega, one of the dominate players in the game, and scare the crap outta everyone else.

          Now it is just a matter of the DoJ behaving like spoiled brats trying to still "win" despite the fact they violated the law on several occasions.
          It all is kinda depressing, the best anyone can offer to justify this entire clusterfook is well Dotcom is a fat douche. So is Limbaugh and he isn't facing bogus charges.

           

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    slarabee (profile), May 30th, 2012 @ 7:46pm

    Difficulty of Disclosure

    "During the course of arguments the issue was raised as to the difficulty of effecting disclosure given that so much material is in electronic format."

    Now I am no lawyer but I have had some experience with the law and trial and I do not recall disclosure as being an optional legal obligation or premise and even if it was would the excuse "that it is too difficult" be acceptable? I think not.

    But then I also thought that if in fact their evidence is so hard to find then does not that undermine their argument that MU was facilitating copyright infringement on a massive scale? Because if government prosecutors with all the data analysts they have working for them cannot find the evidence quickly, how then did the average uneducated internet end user find it?

    It's a heads scratcher.

     

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    mm777 (profile), May 30th, 2012 @ 8:25pm

    ctrl+alt+F1
    sign in
    find /dir/ect/ory -name 'name_of_file'

    or

    ctrl+F name of relevence

     

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    Anonymous Coward, May 31st, 2012 @ 8:42am

    Again, if somehow they do manage to get megaupload up and running however unlikely, if possible they should try and get some legal protection from third party companies not giving them the same treatment they would get if they were any other organisation, i.e. wikileaks and the visa fiasco

     

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      Chargone (profile), Jun 2nd, 2012 @ 10:06pm

      Re:

      heh. if this blows up in the current NZ government's face badly enough it probably would be possible to set it up here with Kiwibank (NZ government owned back, unlike all the others with "New Zealand" in their names which are owned by Australians...) to handle direct bank transfers... internet banking is shiny like that. a bit more awkward, but entirely doable.

      (though... kiwibank does offer Visa debit cards, and losing that would annoy people...)

      i wouldn't expect that to actually Happen, mind you, as our governments rarely put anything short of 'widespread public revolt and/or garanteed loss of the next election' above anything that MIGHT lead to a 'free trade deal' with the USA. (which, incidentally, is Stupid, as our main US imports are, so far as i can tell, grains, and IP related stuff. and all these 'free trade' deals actually further restrict the IP stuff... and given the Problems with the grain (over refined, among other things) and our current agricultural sector we'd be better off encouraging our own farmers to shift from excessive milk production to grain (the land's better suited for it anyway) to replace the Import rather than trying to sell more Milk...)

      all very silly, really.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    ChrisH, Jun 1st, 2012 @ 2:58am

    I'm glad significant questions are being asked instead of just regular questions.

     

    reply to this | link to this | view in chronology ]


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