December 20, 2018

NZ top court to hear extradition appeal from Megaupload Founder on copyright charges


On December 20, the Supreme Court of New Zealand stated that it would hear an appeal from Megaupload Founder Kim Dotcom in his years-long fight against extradition to the United States on copyright charges. Notably, Dotcom is attempting to overturn an earlier ruling by the New Zealand appeals court which had agreed on his extradition to the United States to face racketeering and copyright charges.

The Supreme Court stated that it had jurisdiction over the appeal and granted leave for the case to proceed.

In this regard, Ira Rothken, a lawyer representing Dotcom, said, “We are pleased that the New Zealand Supreme Court granted review of the U.S. extradition case against Kim Dotcom.”

On the other hand, lawyers representing US authorities stated that the case didn't qualify for a Supreme Court hearing under New Zealand law but failed to persuade the justices. In response, the SC said, "Given the significance of extradition, there is no reason to suppose that the parliamentary purpose was to exclude a right of appeal to this court."

In July 2018, a New Zealand appeals court had agreed with a lower court judge that Dotcom was eligible for extradition under New Zealand law, taking Dotcom a step closer to facing justice in the US.

In 2012, Dotcom's rented mansion in the Auckland area was raided by US authorities. Notably, Dotcom’s company called Megaupload was then a popular platform for illicit sharing of copyrighted movies.

According to US authorities, Dotcom and his staff knowingly and deliberately promoted the use of the platform for copyright infringement, which resulted in movie studios running at a revenue loss of nearly hundreds of millions of dollars.

However, for the purpose of putting Dotcom under trial, the US government had to get Dotcom to the United States.

The Appeals Court had agreed with a lower court that Dotcom could be extradited to the United States to face charges there.

However, Dotcom's lawyers had then argued that he shouldn't be extradited as New Zealand’s law doesn't provide for criminal prosecution for online file sharing.

Stating the fact that New Zealand’s law criminalizes distribution of an "object" that is "an infringing copy of a copyright work", Dotcom's lawyers argued that movie files stored on a server are not "objects" for purposes of New Zealand law, and therefore, the operation of Megaupload couldn't be criminal copyright infringement.

In a lower court ruling in 2017, the judge had accepted this argument but argued that Dotcom was eligible for extradition anyway, stating that "willful infringement of copyright can properly be characterized as a dishonest act." Therefore, the judge had then concluded that running Megaupload amounted to conspiracy to defraud, which was a criminal offense eligible for extradition.

Notably, the Appeals Court also agreed the same, arguing that the lower court had read the word "object" too narrowly.

Also, Copyright law long predates the Internet, so it necessarily focused on physical copies in its early years. The court thus concluded that "object" should be interpreted broadly, to encompass digital files as well as physical copies.

The Appeals Court had therefore concluded that New Zealand had serious criminal offenses corresponding to several of the charges the United States brought against Kim Dotcom and his colleagues and hence that the group could be extradited to the United States.

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