STAFF NEWS & ANALYSIS
Little Reported, Significant Issues Underlie Kim Dotcom’s Legal Struggle
By Daily Bell Staff - August 30, 2016

Judge: Kim Dotcom can livestream legal fight against the US … Internet entrepreneur Kim Dotcom wants to livestream his legal battle against the United States on YouTube.  Dotcom’s lawyers have asked if they can film his extradition appeal, which began Monday, Aug. 29, 2016,  at New Zealand’s High Court in Auckland. The U.S. opposes the plan. -BusinessInsider

Hollywood and the United States picked on the wrong fellow when they decided to send FBI agents around the world to arrest Kim Dotcom.

Dotcom has fought the mightiest empire in the world to a standstill for four years now, while forcing the New Zealand government to confess to policing and legal mistakes.

Unfortunately, the compelling drama of Dotcom’s legal battle has obscured serious, underlying intellectual property-rights issues. Little noted – at least by the mainstream (which covers Dotcom’s travails irregularly) – Dotcom has found himself at the center of deliberate Hollywood/US effort to turn civil intellectual property transgressions into criminal ones.

This is  not usually mentioned. But the way the US has gone about this process is the way it usually does, not by creating an open debate but simply by confronting an individual (Dotcom) and preparing a case that, as pursued, creates a legal precedent.

Most recently, the US government has prevailed in New Zealand in gaining court approval for confiscating Dotcom’s assets abroad. You can read a thoughtful Techdirt analysis here. You’ll find few such insights in the mainstream media.

The point mostly is to paint Dotcom as a criminal, and his transgressions as heinous ones deserving of a long prison sentence. At one point, perhaps a thousand years ago, there was no such thing as intellectual property. Then, for a long time, intellectual property was seen as a civil issue. Increasingly, as the Dotcom case shows us, apparent abrogation of such rights can trigger related criminal prosecution.

Dotcom was no doubt initially seen as an appropriate “mark” to create yearned-for, additional precedents. His girth and checkered past must have given Hollywood and US law enforcement ample certainty that Dotcom was the appropriate target.

Plans were set, then carried out. Soon enough, Dotcom was assaulted in an overnight raid, and his mighty Megaupload company with 100 million users was shuttered.  Dotcom stood accused of stealing intellectual property and faced considerable jail-time for “crimes.”

Supposedly, the US has argued, Dotcom and his partners knew their users were looking at movies and listening to music they had obtained in ways that might be considered “illegal” and therefore should have taken action to halt  it. To make matters worse, Dotcom has been loaded down with US racketeering, wire-fraud and money laundering charges as well.

When it comes to intellectual property, Hollywood wants to set precedents that creates an affirmative obligation for hosting companies to police their customers.

Dotcom has made seemingly reasonable arguments in response. Most significantly,  he has pointed out that if Hollywood would simply release its cinematic efforts all at once, most of the abuse would immediately disappear. Instead, Hollywood has rolled out its movies across the world at staggered intervals, making abuse almost inevitable.

Meanwhile, the US itself has committed seemingly obvious crimes in its prosecution of Dotcom, including the confiscation of his company’s servers. No doubt, they were deeply scrutinized in preparation for what will be little more than a show trial if Dotcom if Dotcom is extradited.

It is a show trial that US hoped to have years ago. But once released from his initial imprisonment, Dotcom embarked on a series of legal maneuvers that stymied US attempts to extradite him. Additionally, he set out on numerous commercial and political projects.

He released a music album, began an Internet file-sharing company (Mega) and even started his own political party that campaigned in the nation’s 2014 election.  But now Dotcom is back in court, and his latest extradition hearing actually started on Monday, as reported by TorrentFreak (here):

The appeal is expected to last six to eight weeks but it began without Dotcom in attendance. He arrived after the hearing began and sat at the back with girlfriend Elizabeth Donelly. NZ’s Radio Live reported that the Megaupload founder appeared “relaxed”.

The hearing began with representation from Grant Illingworth QC, the lawyer representing Mathias Ortmann and Bram van der Kolk.  Illingworth said that the hearing had been unfair since the United States had denied the defendants the opportunity to hire specialist US-based technology experts who could help to support their defense.

He said that the case against the former Megaupload operators “had gone off the rails” and their extradition should be halted since the District Court had shown “extraordinary disinterest” in their arguments at the earlier hearing.

Pointing to alleged breaches of conduct by U.S. authorities, Illingworth said that a situation of urgency had been manufactured in order to achieve procedural shortcuts.

There had been a “covering up” of unlawful activities preceding the arrests in 2012 and “downstream attempts to cover that up including a police officer giving incorrect information to this court, [and] unlawfully sending clones of hard drives overseas.”

The TorrentFreak article explains this hearing may be a “drawn out affair” and that in any case, it will, again, not be the last word. In fact, the article suggests that the case may end up in New Zealand’s Supreme Court, a process that could take years.

The larger question is why Hollywood is able to enlist the support of the US government in prosecuting a man halfway around the world for “crimes” that used to be, in the larger sense, civil offenses.

In fact, this is a question we have asked before. Why is the US taxpayer paying for Hollywood’s disgruntlement and determination to further fence-off its content. The cost to Hollywood from Dotcom’s nefarious activities has been estimated to exceed $5 billion. But these are Hollywood estimates.

One can make a cogent argument that Megaupload was actually gaining Hollywood and various music companies customers by providing a safe place where viewers and listeners could sample products and figure out their likes and dislikes. Over time, this may well result in more sales, not less.

Unfortunately, these questions will not be part of Dotcom’s extradition hearing though they are basic to what’s going on. We’ve argued (here) that it a groundswell of public agitation could help generate a significant rethink of intellectual property generally, including patent law as well as copyright.

Conclusion: What Hollywood and the US have done with Dotcom case will surely further criminalize intellectual property disputes. This has significant ramifications for Western society, creativity and innovation. The stakes are higher than Dotcom’s personal fate, but as usual the larger issues are not receiving as much coverage as they should.

 

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  • CAI

    He has has lasted longer than most thought he would and he may yet survive the onslaught of the Hollywood influenced Obama administration! Good Luck Dotcom!!!

  • Medium Fish

    Kim is not wrong in his actions, but his expectations of justice seem misplaced. He has had a good run of it and I am surprised he has made it this far.

    There are many ways to make money in the discrepancies between the elite’s promotions and the consumer’s reality. In these grey areas it is probably wise not to make one self a target. Authorities will always cull the dumbest through crude mechanics. The biggest are targeted for a symbolic victory.

    Even after obtaining a trophy like Kim’s head on a platter, authorities will not be able to pursue every publisher.

  • Nice to finally see an IP story from the DB that isn’t the usual “IP bad ban IP hurrr!” IP Commie codswallop.

    Perhaps now we can finally get to finding solutions to the money-power abuse of IP protection by co-opting justice and governance? That would be awesome, thank you.

    • You can’t get over the idea of letting the market operate instead of using the penalty of incarceration. There is no legitimate reason why taxpayers should pay for the government to enforce such monopolies. Kim Dotcom exploited the natural resentment that such monopolies cause.

      • I can’t get over the idea that DB repeated presents logical fallacies as anti-IP arguments.

        Feel free to refute the arguments as laid out here (still unanswered after all these years!) https://strangerousthoughts.wordpress.com/2010/11/14/the-economic-principles-of-intellectual-property-and-the-fallacies-of-intellectual-communism/

        Strangely enough, NOT ONCE has the DB or any IP Commie addressed EVEN ONE of the points laid out there, so long ago.

        Until you do, thinking people won’t take your arguments seriously.

        I look forward to a future DB article addressing those arguments. Ta-ta for now!

        Edit: I find it extremely amusing that you engaged in IP Commie Fallacy 17: Intellectual property relies on state privilege and protection

        https://strangerousthoughts.wordpress.com/2010/11/14/the-economic-principles-of-intellectual-property-and-the-fallacies-of-intellectual-communism/#fallacy-17

        XD

        • We don’t even understand it, much less are able to formulate a reply to it.

          Perhaps you can unpack this graf for us, below. We’re not sure what he’s saying and in any event copyright and patent law certainly does “protect” various kinds of “intellectual property.” All you have to do is look at the lawsuits being filed using US law as a basis. Whether you take our points seriously or not is up to you. But we can’t comment on something we don’t understand. Perhaps we would agree with parts of it if we understood it.

          “In fact, the economics of intellectual communism makes it impossible for it to exist in an anarcho-capitalist society as dreamed by these very same libertarian intellectual communists. For capitalist courts to provide protection to counterfeiters against intellectual property owners, the value the counterfeiters derive from counterfeiting must be great enough for them to justify purchasing protection in excess of the value intellectual property owners derive from purchasing protection on the exclusivity of their property. Because the acts of counterfeiters demonstrate how little they value the property they are counterfeiting, they would never actually purchase any protection against intellectual property owners. Intellectual property rights, from the fact that they create value, would become the law globally.”

      • EDD

        Sorry, DB, but this comment is not aimed at this article. Instead, it is aimed at the 8/31/2016 article where the comment section is closed. I often do not get to read your articles until between 5:30 p.m. and 10:00 p.m. As far as I can remember, this hasn’t happened before. Is there a valid reason the comment section was closed so early? Or has TPTB found a way to shut out reasonable dialogue?

        As a loyal reader of the DB, I find this an irritant, much like a cockle-burr getting itself stuck on my pants leg while roaming the wild. If this was done unintentionally, no harm done. But if additional comments was closed out early, it is totally irrational on your part and I believe an apology is in order. I will maintain this attitude until a reasonable explanation is forthcoming.

        Another thought occurred to me just now. Maybe your host computer recognizes my ip address and shuts me out because I tend to be long-winded at times. Talk about technotronics, is your host computer’s artificial intelligence advanced to the stage where it can determine ahead of time how a reader might respond with comments it somehow desires not to store on it’s hard drive? That would make it hard-nosed as well.

        • We`re having trouble with Disqus. Sorry. We added a note to the story.

  • James Clander

    Good luck indeed to Kim .com. NZ should tell USA to go & get F%^$ ed

  • Sven

    Let’s see, who owns Hollywood? Hmmmmmm. Hmmmmmm. Who else in the world whines and whines and whines and we give them money every month for “defense”?

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