Media Statement From Dotcom Legal Team.
This case is no longer the "largest criminal copyright case", 1 at least as far as New Zealand is concerned. As we have
said all along, there is no such offence under our Copyright Act. We were right. However, this afternoon the High Court
judgment 2 was issued and, ultimately, although it concluded we are right, 3 the Court concluded that Kim is still
eligible for surrender.
To win the major plank 4 of the case but to get that outcome is extremely disappointing. However, we are far from
defeated. It is hard to accept the logic that, if the conduct that all accept at its heart relates to assertions of
breach of copyright is not an offence under that Act, how it can nonetheless be massaged into a general fraud offence.
In fact, that thinking has been rejected outright in the Supreme Court in the United States.
The High Court has accepted that Parliament made a clear and deliberate decision not to criminalise this type of alleged
conduct by internet service providers, 5 making them not responsible for the acts of their users. For the Court to then
permit the same conduct to be categorised as a type of fraud in our view disrupts Parliament’s clear intent. The High
Court decision means that Parliament’s intended protection for internet service providers is now illusory. That will be
a concern for internet service providers and impact on everyone’s access to the internet.
The last hurdle to what we say is the correct outcome - no extradition - will now need to be determined by the Court of
Appeal. We remain confident that this last point, which would prevent extradition in this complex and unprecedented
legal case, will be resolved in Kim's favour in a manner consistent with Parliament’s intent, international law and,
importantly one might think, the United States' own law.
Whilst many have struggled to get beyond the United States' hype in this politically charged and misunderstood case, an
objective observer will now realise that there is much more to this case than they were previously informed of from the
District Court judgment.
Whether Kim has committed an offence under New Zealand copyright law has finally now been answered in his favour; he has
not. Whether our law should still permit him to be extradited to the United States under an Act that has no interest in
copyright, is the question that remains now to be answered by our Courts. We say no and we are confident that this must
be right.
Whether you are a supporter of Kim's or not, these are important principles of law for us all and the very issues that
we need our justice system to grapple with if we want a credible and safe process for extradition to any requesting
country, including those with whom we have a close commercial and political relationship.
Ron Mansfield, Barrister
Dotcom Legal Team
20 February 2016
2 Ortmann & Ors v United States of America [2017] NZHC 189.
3 See paragraphs [169]-[192] (in particular [192]).
4 See paragraph [591].
5 See paragraph [183].