Extraditing Kim Dotcom
However much of a prat he might seem to some, Kim Dotcom’s relevance goes far beyond his self generating hyperbole and
excessive enthusiasm. In the legal battles of extradition and how services on the Internet matter, Dotcom, resident in
New Zealand, remains a person of importance. So important, in fact, that the US Department of Justice has been on to him
and three associates since 2012.
His arrest in January 2012, along with associates Mathias Ortmann, Bram van der Kolk, and Finn Batato, demonstrated how
the US state prioritises economic interest. Most terrorist suspects, actual or otherwise, get the drone treatment,
airstrikes and the like. Dotcom got dozens of agents, some heavily armed, and two police helicopters. As Wired noted in
perplexed wonder, it was the sort of “paramilitary assault reserved for drug lords, murderers, and terrorists, not
copyright infringers.” The seizure covered 18 luxury vehicles, 150 terabytes of data, and NZ$11 million in cash.
His special treatment was further highlighted by the bugging exploits of the New Zealand intelligence services, the
Government Communications Security Bureau, something for which the country’s prime minister found himself apologising
In September 2012, the Inspector-General of Intelligence and Security, Paul Neazor, found that the GCSB exploits had
been illegal, having relied on incorrect police information about Dotcom’s residency status. Instead of taking this to
heart and preventing a repeat of such behaviour, Prime Minister John Key pressed ahead with seeking to enlarge GCSB’s
powers to spy on New Zealanders to ostensibly to prevent cybercrime.
Dotcom’s claim to notoriety lies in being the main figure behind the online storage locker Megaupload, a creation that
consumed more bandwidth than either Dropbox or Box. It was an operation that generated $175m in what are claimed by US
prosecutors to be illegal profits. According to those authorities, the downloads of pirated movies and music through the
site in its heyday generated 4 percent of global internet traffic.
On Tuesday, a New Zealand district court claimed that Dotcom could be extradited to the United States to stand trial for
money laundering, copyright infringement, racketeering and wire fraud facilitated via the file-sharing service. The US
indictment comprised 13 counts in total, a strategy that was developed because copyright infringement alone is a
non-extraditable offence between NZ and the US. The defendants had, it was contended, been members of “a worldwide
criminal organization whose members engaged in criminal copyright infringement and money laundering of a massive scale”.
It is claimed that the value lost in terms of copyright violation was “in excess of $500 million,” covering movies,
music, television programs, electronic books, and entertainment software. Such content, as the indictment outlines, “is
not searchable on the website, which allows the Mega Conspiracy to conceal the scope of its infringement.”
In the words of Judge Nevin Dawson, outlined in his 271-page ruling, the US had gathered what the court considered
“overwhelming” evidence against the defendants. The respondents had failed to show that the evidence had fallen “well
short of undermining the case” being made.
This was an odd suggestion, given that the judge generally accepted, at face value, the veracity of the prosecution
claims. Repeated efforts to get the US authorities to show what this “overwhelming” evidence consisted of failed to bear
fruit. In a troubling way, it seemed that the legal pull was taking place outside the court, and off NZ shores.
The defence effort had comprised an attempt to show that Megaupload operated along the lines of other Internet Service
Providers (ISPs), similar to cloud-based operations. The defendants also suggested that take down notices were abided by
in cases of infringements.
Again, the judge refused to accept those arguments, when he should have been cognisant of the fact that an improper use
of a platform does not compromise it. YouTube operators, for instance, do not tend to find themselves in the slammer
when copyright protected film and music is placed on the site. The infringing material is simply removed.
Nor did the judge consider that Dotcom’s team may have undertaken several measures to ensure that infringement was made
less likely (one reason for making material non-searchable) and invulnerable to legal challenges precisely because they
were attempting to stay within the confines of the law.
This is by no means it for the Dotcom team. The extradition ruling can be appealed, and one of the defence attorneys
responsible for the case, Ira Rothken, suggested that the ruling on the US request for extradition will be reviewed in
the High Court. Rothken’s broader feeling here is that ISP copyright safe harbour rules have been rendered a fiction.
“Justice was not served today.”
Dotcom’s case provides a good if bitter foretaste of something far more sinister in the world of copyright policing,
largely centred on such countries as the US. New Zealand should know – it proved to be an engaging, and sometimes
significant demurrer during the Trans-Pacific Partnership Agreement negotiations with their larger counterpart. But the
reach of US justice, in its hard fisted economic guise, will become even wider, serving, as it does all too often, the
Hollywood entertainment complex.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.