Kim Dotcom extradition case looming

There never were any grounds but that would not get in the way of either this government or the Americans. Now the judiciary is compromised by this government I would not be surprised if things go the way of the authorities.

No grounds to extradite Kim Dotcom, says Harvard Law professor Lawrence Lessig

One of the world's leading experts on copyright has reviewed the Kim Dotcom case and says there is no basis for extradition.

NZ Herald,

17 September, 2015

Harvard Law professor Lawrence Lessig has weighed into the Megaupload prosecution with a legal opinion which condemns the prosecution case against the filesharing website.

In an opinion released by Dotcom's lawyers, Professor Lessig said the allegations and evidence made public by the US Department of Justice "do not meet the requirements necessary to support a prima facie case that would be recognised by United States federal law"

Professor Lessig is internationally regarded as an expert in copyright and fair use. He co-founded the nonprofit Creative Commons and has written widely in articles and books on copyright, law and the internet age. The US-based Electronic Freedom Foundation said he had "played a pivotal role in shaping the debate about copyright in the digital age".

It comes ahead of the Megaupload case finally heading to court next Monday for an extradition hearing in which New Zealand government lawyers will argue Dotcom and three others should be sent to the United States to face charges of criminal copyright violation, conspiracy to violate copyright, money-laundering and operating as an organised criminal conspiracy.

Megaupload was a file storage website which claimed one billion users and 4 per cent of the world's internet traffic when it was shutdown by the FBI in January 2012.

The FBI charged seven people involved in the company, arresting its founder Dotcom in New Zealand, along with programmers Mathias Ortmann and Bram van der Kolk and advertising manager Finn Batato. The men face decades in jail if found guilty in the United States.

Professor Lessig said the US case against the Megaupload defendants was a collection of "facts from multiple sources and over a wide span of time" which had been organised "to create an impression of coherence and substance".

But he said study of the US indictment which detailed evidence and charges - the same case to be presented in NZ courts - showed the actions were "not prohibited by criminal statutes of the United States".

"Filings of the DOJ attempt to create a false impression of criminal guilt and are not reliable."

Professor Lessig said it was accepted the US was unable to extradite on the charge of copyright violation which meant the conspiracy claims had a central importance.

However, he said the copyright charges were the underlying legal foundation on which the rest of the case was built. He pointed to a finding from he said NZ district court judge David Harvey which said the case would "hang upon the establishment of criminal copyright infringement".

But Professor Lessig said "no individual Megaupload defendant is shown to have so 'willfully' or criminally copied or distributed a copyrighted work".

He said there was no legal basis for Megaupload staff being held criminally responsible for a third-party copyright violation. "A crime of conspiracy requires an agreement with criminal infringers. No such agreement is shown."

His total review of the case concluded with the finding there was no legal basis for extradition.

It is not the first time Professor Lessig has dissected an FBI case. He marked his appointment as Professor of Law at Harvard with an address on the case of Aaron Swartz, the brilliant young entrepreneur, programmer and online activist who took his life while under federal indictment for taking a database of scholarly journals. Professor Lessig - who knew Swartz well - attacked the FBI for its prosecution of a case which threatened to jail the young man for 35 years.

New twist in Kim Dotcom case

NZ Herald,

17 September, 2015

The managers of the nation's finances were kept at arm's length when the Kim Dotcom case required Kiwi taxpayers to underwrite a potential future legal suit from the internet entrepreneur, a new document shows.

Instead, then-police commissioner Peter Marshall signed the "undertaking in respect to costs and damages" - the agreement which would allow Dotcom to sue New Zealand if it emerged the FBI case against him was unfair and unfounded.

It was the first time that the Crown was required to give an "undertaking" in a case where the property of someone facing charges was seized and was because the charges were brought by a foreign agency.

The need to provide an "undertaking of liability" emerged after police seized the tycoon's cash and property without notice. The law required Dotcom have the chance to challenge the seizure and be given formal notice of his right to sue the Crown.

The need to provide an undertaking in March and April 2012 surprised the Crown and the Herald sought details of the debate and consideration over the risk to which NZ was exposed through the Official Information Act in July 2012. Treasury refused to supply the information sought so the Ombudsman was called on to investigate.

After three years of deliberation, Chief Ombudsman Dame Beverley Wakeham found there was a "public interest" which would be met by releasing a summary, which Treasury sent to the Herald this month.

The summary showed there were meetings "to discuss the case and how to inform ministers" were held Crown Law, police, the Ministry of Foreign Affairs, Ministry of Justice and Treasury.

On March 22 2012 Finance minister Bill English was told he "did not have a role in approving or signing off this kind of undertaking". Instead, it was the Commissioner of Police's role under the Criminal Proceeds (Recovery) Act.

While Mr English was kept briefed - including a briefing from Mr Marshall and Attorney General Chris Finlayson - there was no process established through which he was able to be formally involved in the undertaking.

Under the Public Finance Act, Mr English is responsible for matters which might impact on Crown accounts. Dotcom has claimed the loss of Megaupload cost him more than $2 billion although others have argued the impact is far less.

The summary provided to the Herald said there had been a review of the mutual legal assistance framework of which Treasury was a part. It "intended to use the forum to recommend the establishment of a consultation process and set out criteria for issuing undertakings".

The requirement to give an undertaking to the court to meet any damages was a factor which put Sony off joining a civil case seeking to claim Dotcom's assets, emailed hacked and released last year revealed. Sony's top copyright lawyer, Aimee Wolfson, said it was "not at all unimaginable" Dotcom would avoid extradition or even successfully defend himself in the United States.

The studio is not a participant in a case in NZ courts with discussion in the emails showing potential exposure to a legal suit from Dotcom concerning executives.

The risk to which New Zealand is exposed was underscored by a legal opinion released today from Harvard University's professor of law Lawrence Lessig, one of the world's leading experts on copyright law. He said the FBI charges would not stand up in US courts and there was no basis in law for Dotcom to be extradited

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