New Zealand Court Releases $4.83 Million To Kim Dotcom

from the another-loss-for-the-doj dept

The US government keeps having setback after setback after setback in its legal fight against Kim Dotcom and Megaupload. If the US had its way, all of Dotcom’s assets would have been frozen, he would be stuck in jail with no opportunity to be bailed out, and New Zealand would have already rubber stamped extradition papers. But none of that has happened.

The latest is that, against the wishes of the US and the New Zealand governments, the court has granted Dotcom the use of $4.83 million out of the assets that were frozen in order to pay some of his legal expenses (though, not for his US lawyer, Ira Rothken). The order also says that the released funds cannot be used for Dotcom’s co-defendants. The ruling, embedded below, is pretty thorough and suggests (yet again) that the US-driven prosecution of Dotcom is mostly focused on trying to railroad him, rather than allow him to mount an adequate defense. He may very well be guilty, but it’s pretty shameful that the steps taken by the US and New Zealand governments seem designed to not even give him a chance to properly defend himself. At least the New Zealand court has recognized that’s not right, and will allow him access to some funds, with specific limits, so that he can put together his defense.

Mr Dotcom’s rights under the NZBORA and the International Covenant on Civil and Political Rights further tip the balance in his favour. The State’s contingent interest in the restrained property is of punitive nature and limited to depriving Mr Dotcom of the fruits of his alleged offending. In contrast, Mr Dotcom’s access to counsel is supported by his rights to natural justice, to be presumed innocent until proven guilty, and to consult and instruct a lawyer and to have adequate time and facilities to prepare a defence. It is generally assumed that the right to access defence counsel includes the right to counsel of the defendant’s choice….

Filed Under: kim dotcom, legal fees, new zealand
Companies: megaupload

New Zealand High Court: FBI Must Release Its Evidence Against Kim Dotcom

from the not-going-well dept

The US’s case against Kim Dotcom and Megaupload continues to run into significant problems. While the US Justice Department (with an assist from New Zealand law enforcement) has continued to insist that extraditing Kim Dotcom halfway around the world to the US was a mere formality, and that the evidence against him need not be shown, the courts in New Zealand have taken a rather different view. They refused to rubberstamp the acquisition as the US hoped. Then, the New Zealand High Court stepped in to review the extradition issue, making a final ruling that says that the FBI needs to reveal its evidence and that the extradition request does not comply with the law as currently written.

In other words, a complete and utter failure by the FBI in this effort.

The full ruling (pdf and embedded below) is quite an interesting read, if you’ve got the time. Basically, the court agrees with the assertion from the US that an extradition hearing isn’t meant to try the full case… but, then points out that this doesn’t mean you completely ignore the basic rights of the accused. It is still a criminal case, and as such they have certain basic rights that must be observed — and which the US was trying to deny to Dotcom. The court considers a variety of case law, including some Canadian extradition cases, and even directly notes that some past cases involved “rubber stamp” approvals of extradition (literally using that term). However, more recent cases have pushed back against that and said that the home court need not try all of the evidence, but should at least look at the evidence to see if it is defective.

The court further notes the fundamental unfairness of the argument made by the US and New Zealand: “severely restrict[ing] the ability of [one party] to file relevant evidence would not easily be characterised as ‘fair.'”

The bigger question, then, was whether or not the FBI needed to release its evidence to Dotcom, and again, the Court ruled against the US’s position. The Court notes that the law enforcement folks rely on obsolete and outdated caselaw to make their argument, and notes that “I do not find this line of authority particularly persuasive” because they really cover different issues, and (of course) the arguments made appear to be stretched from the original intentions. The judge seems to recognize that the FBI and the Crown are making ridiculous arguments, noting that there is “nothing incompatible” with revealing the evidence in New Zealand and then using it in the US case should extradition be granted.

In my view disclosure should be provided by the requesting state. The Act provides the person sought with a right to challenge whether the threshold for extradition has been met before he will be extradited. Consistent with the requirements of… the Bill of Rights Act to a fair hearing, the person sought should be given access to sufficient information to enable him or her to fully participate in that hearing on an equally informed basis. Without access to materials relevant to the extradition hearing phase, the person sought will be significantly constrained in his or her ability to participate in the hearing and the requesting state will have a significant advantage in terms of access to information.

The order lists out what needs to be disclosed, and it’s a pretty long list. Basically “all documents” relating to each of the key charges.

Separately, the judge noted that the “Record of Case” document, which the Crown (with the FBI) used to argue for extradition wasn’t up to proper legal standards in that it did not provide the necessary info to support extradition.

She also found the “Record of Case”, the document which made the argument for extradition, did not currently meet the legal requirements. She said the FBI was under an “obligation of candour” to provide any evidence which could impact on the court’s judgment of whether the extradition threshold had been met – and no information had been provided to support FBI claims. The document “did not comply”, she said.

Basically, this is the final ruling on this issue. The New Zealand government and the FBI can’t appeal it any higher and now have to actually let Dotcom and his lawyers see the evidence against him. What a concept.

Filed Under: discovery, evidence, extradition, fbi, kim dotcom, new zealand
Companies: megaupload

Video Of Dotcom Raid Revealed, As NZ Police Admit It Was 'Over The Top'

from the ya-think? dept

Yesterday we noted that government officials were seeking to suppress video and images from the raid on Kim Dotcom’s home. As a bunch of folks have been sending in all day, New Zealand’s 3NEWS has revealed some of the footage in a video interspersed with video from the courtroom hearings and a tour they did a few months ago of the room in which Dotcom hid. It’s interesting to note that, contrary to some reports of law enforcement having to “break in” to a “safe room,” the reality turned out to just be a hidden room which Dotcom left unlocked. But, much more telling is the ridiculous level of force that the government used to arrest someone for copyright infringement — which even New Zealand law enforcement admitted was “over the top.”

Other reports have noted that Dotcom’s security staff includes a police officer who could have been approached. Police also admitted that the effort was rushed and done with much less planning than they would have liked (which supports the notion floated by some that the timing was designed to happen right after the massive SOPA protests). Oh yeah, you’ll notice in the video that two helicopters (and many police vehicles) were used — but in court it was revealed that NZ law enforcement had said that “a full tactical response was not appropriate.”

Perhaps they just wanted to look good on camera for the MPAA folks who were so infatuated with going after Kim Dotcom. Certainly, Americans were on the scene. NZ law enforcement admitted that the FBI came along for the ride…

Filed Under: copyright, kim dotcom, law enforcement, new zealand, over the top, raid
Companies: megaupload

Why Are New Zealand Prosecutors Seeking To Suppress All Images & Video Of Megaupload Raid?

from the seems-sketchy dept

As lots of publications are reporting, over in New Zealand, Kim Dotcom took the stand to testify about how the police treated him during the raid on his home as part of the international effort to seize and shut down everything related to Dotcom and Megaupload. I have no idea if the claims he makes of being kicked and punched and the like are accurate. I’m sure his detractors will question how trustworthy the testimony is. Frankly, I have no idea how accurate it is.

But here’s the thing that I find most interesting. Buried all the way at the end of the Stuff article linked above is the following line:

The Crown is seeking for all images and CCTV footage from the raids to be suppressed.

To me, that seems like a point that should be made up top. If Dotcom is being inaccurate in his descriptions, then wouldn’t showing the video and images that prove him wrong basically destroy all of his credibility and help the government with their case? The fact that they’re trying to suppress that very evidence certainly lends credence to his claims, and (at the same time) calls into serious question the conduct of law enforcement during the raid.

Filed Under: details, evidence, kim dotcom, new zealand, prosecution, raid, suppression, video

US Has Ignored New Zealand Court Order To Return Data It Seized From Megaupload

from the of-course dept

There are a bunch of moving pieces in the various Megaupload legal proceedings, but if you recall, in the ruling in late June from New Zealand’s High Court, it was made clear that the New Zealand government and the US FBI broke the law in sending data from Megaupload’s hard drives overseas, and ordered them returned. Megaupload’s lawyer, Ira Rothken is out reminding the world that the US has failed to comply with the order to return the data that was illegally taken, and has shown no signs of planning to comply. Apparently, the Justice Department, who is supposed to be enforcing the rule of law, doesn’t believe such rule of law applies to its own activities.

Filed Under: data, doj, new zealand
Companies: megaupload

NZ Copyright Industry Claims New 'Three Strikes' Law Halved Movie Infringements After One Month: So What?

from the show-us-the-numbers dept

The implicit justification for various new copyright enforcement laws, such as the “three strikes” approach, is that they will encourage people to buy more authorized digital goods and thus support artists and their works. Naturally, those in favor of this logic like to produce figures that purport to show that it is working.

Here’s another example, based on the claimed results from just one month’s operation of a new three strikes law in New Zealand:

In a submission to a government review of the legislation’s efficiency, NZ FACT [New Zealand Federation Against Copyright Theft] claimed New Zealanders illegally viewed movies in the top 200 online 110,000 times in August last year — the month before the new law took effect — but only 50,000 times in September.

Of course, those figures are unverified, and might well be wide of the mark – note that they were in a submission to a review by the New Zealand government, and not something released publicly. But even accepting them for the moment, it’s significant that the same report on the Australian IT News site wrote:

Despite the drop in the first month, NZ FACT noted there had been no “discernible progress” since then.

So we have a drop followed by a plateau. The question is: what happens in the longer term? In Sweden, when the IPRED legislation against unauthorized file sharing was brought in, the Internet traffic for the country dropped by 30%, suggesting that the law had modified users’ behaviors considerably. But eight months after that, traffic was back up to the original level, indicating that whatever users had stopped doing in the wake of the new law, they were doing it again — something confirmed by more recent research. Similarly, an early report claimed that the French three strikes program had already resulted in increased digital sales — except that was not the only possible explanation, as a previous Techdirt post explored.

This pervasive uncertainty means that one month’s figures about supposed drops in unauthorized file sharing are really pretty meaningless. What we need to see is the long-term pattern. And more importantly, if there is indeed a significant, sustained fall in such sharing, we need to see an equally significant, sustained uplift in sales that correlates with that fall. Without that kind of positive effect, demonstrated with rigorous data, three strikes programs are little more than an exercise in vindictiveness.

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Filed Under: new zealand, sharing, three strikes

Megaupload To DOJ: You Don't Get To Make Up The Rules That Suit You

from the rules?-where-we're-going... dept

Yesterday, we wrote about the US Justice Department arguing that there’s no problem with the fact (which it admits) that it did not and could not properly “serve” Megaupload as a corporation, since it has no US presence, arguing that as long as it generally makes an effort to do so, and also promises to really serve the company once its execs are extradited to the US, it’s perfectly fine. Megaupload has now hit back by pointing out that the DOJ appears to be making up the rules that it would like to exist, rather than following the rules that do exist.

The Government bears the burden of proving that it has validly served Megaupload within the letter of the Rule… and effectively concedes it cannot carry it. So the Government instead urges this Court to rewrite the Rule. It specifically puts forth three alternative arguments that no federal court has ever accepted, as far as we are aware, and for which it cites not a single relevant precedent.

First, the Government argues that, because Megaupload is aware of these proceedings and purportedly had “minimum contacts” with the United States, the Rule has no application. By this argument, the entire Rule can be disregarded wherever the Government deems it unnecessary or perhaps unduly burdensome. Second, the Government contends that, even if it must otherwise conform to the Rule, it may disregard the latter portion of the corporate-service requirement and decline to mail the summons to Megaupload. With this argument, the Government would read out of existence the express mailing requirement of Rule 4(c)(3)(C). Finally, the Government argues that, to the extent it must nod at Rule 4’s mailing requirement, it may ignore the Rule’s express prescription and simply send the summons to an address of its choosing. Here, the Government goes so far as to claim it can deliver the summons to Megaupload’s address in Hong Kong, even though that approach would essentially strike Rule 4(c)(3)(C)’s requirement that the summons be mailed to the company’s “last known address within the district or to its principal place of business elsewhere in the United States.”

But… but… you don’t understand. Since the MPAA and RIAA explained to the DOJ that Megaupload is evil and Kim Dotcom is a real life super villain, the rules don’t matter, right?

Filed Under: jurisdiction, justice department, new zealand, rule of law, service, us
Companies: megaupload

Pro-Copyright Judges Never Drop Cases Over Conflicts, So Why Does Megaupload Judge Have To Step Down?

from the doesn't-make-sense dept

This isn’t a huge surprise, but yesterday, we wrote about some comments by Judge David Harvey in New Zealand concerning region coding on DVDs and the New Zealand/US negotiations over the TPP agreement. None of this had anything to do with Megaupload or the Dotcom case, but at one point he referred to a tweet that did a slight satire on the famous saying, and noted that “we have met the enemy and he is [the] US.” The press was already blowing this out of proportion — suggesting, totally incorrectly, that he had “called the US an enemy” when it came to copyright law. That’s not true at all. Beyond the fact that he was paraphrasing a common saying in a clearly hyperbolistic manner, the issue he was talking about was very specific to anti-circumvention issues related DVD region coding, and nothing, whatsoever to do with the direct issue in the case.

That said… as many people are noting, Judge Harvey, recognizing the press furor about all this has stepped down from the case and will allow another judge to pick up the extradition issue down the road. This is unfortunate, as Judge Harvey is noted as one of New Zealand’s key internet law experts, who really understood these issues at a deep level. Still, it’s unclear if this change will have a huge impact on the case. The judge taking over for Harvey, Judge Nevin Dawson, has also been involved in the Megaupload case, and was the judge who released Dotcom on bail, despite pressure from the US to keep him locked up. Furthermore, Harvey and Dawson are district court judges, and it seems likely that, in the end, this will involve New Zealand’s High Court, which is already engaged and has already ruled against the US.

But, here’s the bigger issue: we see stories of judges in big copyright cases all the time who have strong ties to pro-copyright or copyright maximalist organizations… and people shrug and move on. Let’s just say, for example, if Judge Harvey had said that he agreed with New Zealand’s efforts to join the TPP because he thought that New Zealand needed stronger anti-circumvention rules to protect DVDs, would anyone even blink an eye? I doubt it.

Furthermore, travel around the globe, and you find the exact opposite situation in many cases, where the judges did not step down. Most famously, over in Sweden, the judge who heard The Pirate Bay trial had close ties to the copyright lobby, and was a member of a few organizations that worked towards promoting stronger copyright law. It seems like that would be a much more direct and obvious conflict than Judge Harvey’s… yet that Swedish judge stayed on. Similarly, here in the US, Judge Beryl Howell, who bucked the trend in copyright trolling cases, by allowing cases to move forward on questionable theories, was just recently an RIAA lobbyist, and prior to that had helped write the DMCA, while a Congressional staffer. And, yet, she remained on the case.

It seems that there’s a pretty clear double standard at work here. If you’re strongly pro-copyright, no one blinks an eye if you are hearing copyright cases. But, if you make an offhand joking comment that’s marginally critical of US copyright policy in one specific area, totally unrelated to the case at hand… you step down.

Filed Under: bias, copyright, david harvey, extradition, kim dotcom, new zealand, region codes
Companies: megaupload

NZ Judge In Dotcom Extradition Case Speaks Out Against TPP & US Copyright Extremism

from the good-for-him dept

A bunch of news reports are highlighting a story in which New Zealand District Court Judge David Harvey supposedly called the US “the enemy,” and are pointing out that he’s the judge overseeing the extradition case for Kim Dotcom. Upon seeing the headline, I was pretty amazed as well, figuring that might cause problems with the case, but the details show that his comments were not about the US in general, or about the Dotcom case. Rather, they were in response to the TPP negotiations that we’ve been following closely — and how the TPP will take away certain rights from New Zealanders, like the ability to get around region-specific DVD players:

It is legal in New Zealand to use methods to get around these regional codes and make the DVDs watchable but Judge Harvey said the TPP would change this.

“Under TPP and the American Digital Millennium copyright provisions you will not be able to do that, that will be prohibited… if you do you will be a criminal – that’s what will happen. Even before the 2008 amendments it wasn’t criminalised. There are all sorts of ways this whole thing is being ramped up and if I could use Russell [Brown’s] tweet from earlier on: we have met the enemy and he is [the] U.S.”

His point is that the US is trying to expand copyright protectionism and curtail current rights of New Zealanders, blocking them from doing something that is currently legal and seems perfectly reasonable (getting around regional restrictions to watch legally purchased DVDs from other regions). It’s a good thing that more people are seeing the problems of American extremism on copyright law, but I wonder if this will be used (as it appears to be in the press) to hit back on him for his role in the Dotcom case.

Filed Under: anti-circumvention, copyright, david harvey, dvds, new zealand, policy, region free, tpp, us
Companies: megaupload

Kim Dotcom Offers To Come To The US, If DOJ Releases Funds For Legal Defense

from the your-move dept

We just noted how the procedural delays in the case against Kim Dotcom meant that it was more difficult for him to fight back against the US government. In response to all of this, Dotcom is offering the Justice Department a deal. He will come to the US and defend the case here if it agrees to unfreeze assets specifically to allow him to fight the case (i.e., pay lawyers and living expenses during the trial). In other words, he’s willing to skip the extradition fight and believes he can win in a US court, if they’re willing to actually let him access the money to pay for the defense. As he told the New Zealand Herald:

He said he would willingly go to the US if he and his co-defendants were given a guarantee of a fair trial, money to pay for a defence and funds to support themselves and their families.

“They will never agree to this and that is because they can’t win this case and they know that already.”

This is an interesting move, because it’s entirely possible that the DOJ will call his bluff here. Certainly, some of the strength in Dotcom’s case is that he wasn’t violating New Zealand law (which is required for the extradition to take place). A fight in a US court, against the DOJ, is a much tougher proposition — and a very risky bet. There are a lot of reasons why Dotcom may have a strong case, but the DOJ rarely loses. It happens, but it’s rare. Even in extreme cases, the DOJ is pretty good at railroading those they indict to “plea” out of a case rather than face a full trial.

Filed Under: doj, extradition, kim dotcom, new zealand
Companies: megaupload