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.

Shaw Academy Ltd

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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