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Kim Dotcom Extradition to Go Ahead, But Not on Copyright Grounds


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The New Zealand High Court today ruled that Kim Dotcom can be extradited to the US, but it won't be on copyright grounds. After months of deliberation, Justice Murray Gilbert agreed with the US Government's position that this is a fraud case at its core, an offense that is extraditable. Dotcom says he will fight on.

dotcom-laptop.jpg

 

Following an extradition hearing lasting 10 weeks back in 2015, a New Zealand District Court judge ruled that Kim Dotcom and his former Megaupload colleagues could be extradited to the United States to face criminal charges.

 

Dotcom immediately announced an appeal to the High Court, which took place over four weeks last September. Justice Murray Gilbert handed down his decision today, one that’s both thought-provoking and controversial.

 

At the very center of the US Government’s case against Dotcom and former colleagues Mathias Ortmann, Finn Batato and Bram van der Kolk, is the notion that the quartet engaged in criminal copyright infringement. Indeed, it was stated on numerous occasions that their case is the biggest copyright infringement case of all time.

 

However, in his 363-page ruling (pdf), Justice Gilbert found that there is no equivalent copyright crime in New Zealand that would allow Dotcom and his co-defendants to be transferred to the United States under the extradition treaty.

 

“One of the central issues in the case is whether copyright infringement by digital online communication of copyright protected works to members of the public is a criminal offense in New Zealand under the Copyright Act,” an announcement from the Court reads.

 

“The High Court has held that it is not, contrary to the conclusion reached in the District Court. The appellants have therefore succeeded with one of the main planks of their case.”

 

While this might initially sound like the best possible news for Dotcom and his colleagues (and it may yet prove useful), that’s not the full picture. The US Government wants to extradite the quartet to face trial on a total 13 counts, which include allegations of conspiracy to commit racketeering as well as money laundering and wire fraud.

 

So, while the copyright infringement charges have now been ruled out as grounds for extradition, the other charges remain.

 

In today’s ruling, the High Court found that while the District Court’s decision of December 2015 was flawed in detail, its conclusion that the extradition of Dotcom and his colleagues can go ahead still stands, “because there are available pathways for extradition” on each count.

 

“[T]he High Court has confirmed that Mathias Ortmann, Bram van der Kolk, Kim Dotcom, Finn Batato (the appellants) are eligible for extradition under section 24 of the Extradition Act 1999,” the Court’s summary reads.

 

According to Justice Gilbert, the core of the case deals with a conspiracy to defraud – an extraditable offense – but in comments this morning, Dotcom said that even that shouldn’t be applicable.

 

“I’m no longer getting extradited for Copyright. We won on that. I’m now getting extradited for a law that doesn’t even apply,” he wrote.

 

“The U.S. Supreme Court has ruled that copyright charges can’t be fraud charges. Let’s just ignore that minor detail over here in New Zealand.”

 

In a statement, Dotcom’s barrister Ron Mansfield said that having won the copyright infringement argument, it is “extremely disappointing” to have a negative outcome overall, but all is not lost.

 

Supporting Dotcom in his assertion that the US Supreme Court has ruled that copyright infringement is not fraud, he explained that the situation in New Zealand doesn’t support it either.

 

“The High Court has accepted that Parliament made a clear and deliberate decision not to criminalize this type of alleged conduct by internet service providers, making them not responsible for the acts of their users,” he said.

 

“For the Court to then permit the same conduct to be categorized 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.”

 

It will be of little surprise to learn that despite this ruling, the battle isn’t over yet. Mansfield confirms that this “politically charged and misunderstood case” will now head off to 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 favor in a manner consistent with Parliament’s intent, international law and, importantly one might think, the United States’ own law,” he concludes.

 

So what next for this epic case?

 

In the short term, it’s expected that both sides will challenge aspects of Justice Gilbert’s ruling at the Court of Appeal. Depending on the outcome there, the case could conceivably move to the Supreme Court and from there into the hands of the Minister of Justice. All of that could take another two years – or more.

 

 

Source: TorrentFreak

 

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Operating a file host site, even a huge one like megaupload should not mean "conspiracy to commit racketeering as well as money laundering and wire fraud" so to have an opinion about this, the reasons behind these charges should be made public.

Not criminalizing internet service providers, making them not responsible for the acts of their users, sounds logical as a protection for most Internet users. A strict interpretation of copyright laws might penalize anyone making a mention of any commercial product in any Internet media, something like the interpretation of some rogue anti-virus anti-malware providers suing legitimate sites where users are commentig and expessing opinions,  explaining other users why they shouldn't use certain fake products.

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2 hours ago, luisam said:

Operating a file host site, even a huge one like megaupload should not mean "conspiracy to commit racketeering as well as money laundering and wire fraud" so to have an opinion about this, the reasons behind these charges should be made public.

Not criminalizing internet service providers, making them not responsible for the acts of their users, sounds logical as a protection for most Internet users. A strict interpretation of copyright laws might penalize anyone making a mention of any commercial product in any Internet media, something like the interpretation of some rogue anti-virus anti-malware providers suing legitimate sites where users are commentig and expessing opinions,  explaining other users why they shouldn't use certain fake products.

 

You are obviously not familiar with the law.  If you intentionally further the carrying out of a crime, in this case theft of copyrighted materials, then you become part of the conspiracy.  So providing a website, that would not otherwise exist, and securing monetary profits from that site are evidence of that conspiracy.  ISPs have been exempted from prosecution because they cannot police how their users use the data paths that they provide.  ISPs have been sued when they have been notified of criminal acts of their clients and they have not taken action to suspend those individuals access.  These cases are still going through the court system.  Going back many years, to the 1920's, when Al Capone could not be arrested for all the murders he had committed because the witnesses died and there was no evidence, they arrested him for income tax evasion, something they could prove.  In this case, fraud may be something they can actually prove where there exists no reason under the extradition treaty nor New Zealand's laws that would prohibit extradition, since fraud is a universal criminal act.

 

As far as your second point goes, concerning Enigma Software's suit against Bleeping Computer, there is a fine line between telling the truth and libelous statements.  Enigma is playing on that fine line.  The problem with this suit is, depending on the outcome, it could make any reviewer of any product who does not give a favorable review, susceptible to prosecution for libel. In the meantime, I don't see how the suit has produced any favorable results for Enigma since it has brought the unfavorable review to the attention of millions of people who had no prior knowledge of it.  I wasn't aware of the review, but then I knew from years ago that Enigma did not produce any software I would recommend or put on any computer, so I never searched for anything on Enigma specifically that might have brought up that review.

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4 hours ago, straycat19 said:

 

Who cares. another 2 years ?  I already know hes a crook and in the health hes in he will be lucky to live another 2 years.. I  got tired reading about this snitch in 2012 and here it is 2017 and I'm still reading about him. LOL

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Quote

 

New Zealand First leader Winston Peters demands Kim Dotcom inquiry

 

 

New Zealand First leader Winston Peters has called for an inquiry into the entire Kim Dotcom saga to give taxpayers answers about how the affair became a plague on government institutions.

He said he was not speaking in support of Dotcom, who he believes should not have been allowed into New Zealand to live originally.

"There's far more to this than meets the eye. It has so many permutations. Nothing is as it seems."

Peters' comments were sparked by a new High Court judgment that found Dotcom and his three co-accused were eligible for extradition.

 

While an unsuccessful appeal by Dotcom, the judgment appears to show the entrepreneur was originally arrested on a charge for which he can't be criminally prosecuted or extradited.

Peters said the public deserved answers over the entire debacle.

"We ended up doing Hollywood's bidding ... It was more like Third World than First World," said Peters, who also used the term "banana republic".

Examples included the "bizarre" police raid, with New Zealand's elite anti-terrorist police squad sent in by helicopter at dawn. "We've got an absolute circus going on."

 

Although Dotcom lost his High Court appeal against extradition, he says at least two years of legal battles remain before he faces the prospect of a plane ride to the United States.

 

In contrast to Justice Murray Gilbert's overall finding, Dotcom declared the decision a victory because criminal copyright violation could not be a cause for extradition. He said New Zealand did not allow it.

Instead, Justice Gilbert ruled that extradition was justified because of US arguments the copyright violation was actually a "fraud".

Dotcom, Mathias Ortmann, Bram van der Kolk and Finn Batato face decades in a US prison after a 2012 raid brought down the Megaupload file-sharing site they set up and ran. They have always maintained their innocence.

 

The actual evidence of the case has not been argued in New Zealand courts. Legal debate here has been over matching the crimes Dotcom and others are charged with to the crimes listed in the Extradition Act.

 

In an interview with the Herald, Dotcom said the decision did not mean he would be getting on a plane to the US. There was an appeal to file and probable further legal action.

"We'll be looking at a seven-year total timeframe before there is a final resolution ... I am now more confident than ever that we will prevail."

That would mean two more years of legal struggles before the case worked through the courts.

 

 

Both sides are expected to challenge aspects of the ruling before the Court of Appeal -- and eventually the Supreme Court, if it accepts the case. If the Supreme Court upholds the decisions of the District and High Courts, the Justice Minister can then sign the extradition order -- which itself can be challenged in court.

Dotcom said the ruling was a "major victory" because it stated there was no New Zealand equivalent to the US criminal charges of copyright violation.

"The major part of this litigation has been won by this judgment -- that copyright is not extraditable.

"They destroyed my family, destroyed my business, spied on me and raided my home and they did all of this on a civil copyright case.

 

 

Quote

We have won. We have won the major legal argument. This is the last five years of my life and it's an embarrassment for New Zealand.

Kim Dotcom

 

 

Yesterday's ruling has created an unusual bureaucratic contradiction: the warrant when Dotcom was arrested on January 20, 2012, said he was charged with "copyright" offences. Likewise, the charges he will face in the US are founded in an alleged act of copyright violation.

Dotcom said there were plans to take a separate court action over the warrant, given it showed he had been arrested for a crime that effectively did not exist in New Zealand.

"My arrest warrant, the document that kicked everything off in New Zealand, is not for fraud. In my arrest warrant, there is nothing about fraud."

Instead, it cited a section of the Copyright Act that dealt only with civil matters.

The Crown Law Office, which is acting for the US, said yesterday it was considering the judgment.

 

By  David Fisher a senior reporter for the NZ Herald

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11804329

 

 

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"...EXPRESSIONS OF PERSONAL OPINION WHICH ARE NOT STATEMENTS OF FACT DO NOT CONSTITUTE FRAUD..." SCOTUS...

 

"...DECEIT IS A SPECIES OF FRAUD..." SCOTUS...

 

"...EVEN AN EXPERT MAY BE GUILTY OF NEGLIGENCE IN DOING WHAT, AT THE TIME, HIS JUDGMENT APPROVES ..." SCOTUS...

 

 

:)

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