Gordon Campbell on the Dotcom extradition decision

Inevitably – and with justification – Kim Dotcom has already lodged an appeal against yesterday’s District Court decision that he is eligible for extradition to the United States, to face copyright infringement, money laundering and racketeering charges. Whether he will actually get leave to appeal – all the way to the Supreme Court – is far less certain. An extradition hearing is not an arena where a case gets heard or can be re-hashed ; narrowly, it merely determines whether a prima facie case exists. Therefore, the grounds for challenging the decision – and gaining leave to appeal – are even narrower. Leave may well be denied.

That doesn’t mean that grounds for challenge do not exist. Yet it is quite hard to see how Dotcom can bring them to bear without – essentially – re-running the same issues that were brought up before Judge Nevan Dawson. Namely, that the US extradition application fails to establish that the copyright infringement in question was criminal in fact, or in intent. (The “money laundering” and racketeering” claims only come into play if and when that initial criminal (not civil) test of the infringing content on Megaupload has been made.)

In the US, the relevant case law – and Viacom v Youtube is the gold standard – has shown that such cases fail to even make the grade for civil damages, let alone criminal penalties. Dotcom should not be extraditable under the law because the behaviours in question do not constitute criminal activities under the law. Once Dotcom is in the US, a case could be mounted for civil damages – but even then, the Youtube precedent suggests it is one that would fail. Given the logic of yesterday’s decision, almost any cloud service that contains infringing material uploaded by its customers (and there would be many) could be shut down, and its owners hauled halfway across the world to face criminal prosecution. Such prosecutions would ultimately fail, given the ‘ safe harbour’ provisions that exist to prevent such injustices, and given that no criminal offence called “ secondary copyright infringement” actually exists.

However, the intention of the US action against Dotcom is entirely about deterrence – by- harassment. And unfortunately, the New Zealand courts have now become accomplices in this travesty.

Footnote : the realities of globalisation mean that it is time for the law on extradition to be toughened. The law standard of proof required for extradition to succeed belongs to an era where the over-riding purpose was to ensure smooth traffic between jurisdictions – in order to catch fleeing murderers and the like. Given the complexity – and politicisation – of allegations to do with global commerce, and where it is very unclear which country’s laws should apply, it is time for the bar on extradition to be raised, and for extradition hearings to be required to examine the allegations far more thoroughly. As things stand, the competing human rights of the persons being subjected to extradition are hardly getting any traction at all.

Secondary copyright infringement is just such an offence, whose validity as a criminal matter needs to be tested here, and with respect to extradition. That’s why Dotom should be given leave to appeal. Yet given the archaic state of the extradition process, he will probably struggle to achieve it.

Courting Disaster

Talking of legal travesties, Japan’s recent decision to resume whaling is a real head-scratcher. Japan badly needs the support of international law in its disputes with China over various offshore islands. Why therefore, has it chosen to flout international law on a point far less important to it, such as whaling – which is a fast declining part of the Japanese diet (such that existing stocks of whale meat are stored in refrigeration) and where the Abe government is not dependent on this sector in any politically meaningful way. In trying to come up with a plausible explanation, analysts have had to point to bureaucrats competing for turf, and ending up with a policy that’s damaging to Japan as a whole.

This guest editorial in the Japan Times makes a coherent argument against the whaling resumption, as not being in any way in Japan’s self interest.

In the meantime, this song from the mid 1990s seems appropriate. Not because its about whaling – it isn’t – but because it uses whaling as a metaphor for a wider sense of dread, unease and self-destruction. Eric Bachman of the indie band Archers of Loaf wrote and performed “Chumming The Ocean” pretty much as a solo piece, with piano. Great lyrics, too :

We’re downed, downed, as the hand of God
Chokes the driftwood with dead weight and brine.
And spawning the detailed decline
Via dorsal cuts, hooks, sink and line.

The anchors have settled, the tanks are full level.
The flag has been raised half-mast on the bow.
And harpoons are loaded, the cage has been lowered.
The mask is on, the diver is down, now.

And they’re chumming the oceans.
The signal is sent
I think he’s in trouble.
The water is red, red, red, red….

Bachman is still a pretty compelling performer. Here he is, from 2011, with an acoustic version of “Web In Front” an old Archers of Loaf track that he also used to perform with his subsequent band, Crooked Fingers.

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9 Comments on Gordon Campbell on the Dotcom extradition decision

  1. Why therefore, has it chosen to flout international law on a point far less important to it, such as whaling?

    The rigid injunction against “losing face” trumps all other considerations.

    That is all that sustains this – and the ghastly pilgrimage by ALL japanese leaders to the Yokusuna Shrine.

    Primitive cultural concept but until they move on from it they will always do stupid stuff.

  2. It has already lost face both legally and morally. The govt and its courts do not take “feedback” as they function as a broken circuitry system- a closed loop.

    Crown’s parliament and its govt has no idea where its functions should end and has become a repressive bullying tyrant. Its mass costly unlawful surveillance of the people is a symptom of its stupidity, madness & paranoia.

  3. “However, the intention of the US action against Dotcom is entirely about deterrence – by- harassment. And unfortunately, the New Zealand courts have now become accomplices in this travesty.”
    Now that sounds familiar in John Key’s World. Especially if you accidentally tape Key, or worse write a book outlining Dirty Politics, or exist as Kim Dotcom. Intimidation?
    Even if the Crown looses in each case they will win in that they will have spread fear and anxiety.

  4. The District Court Judge holds that there is a case prima facie that Mr Dotcom is eligible for extradition over the case mounted against him

    For prima facie to be established on the FBI allegations and to extradite, it has to be proved how much profit was lost and by whom as a result of Mr Dotcom’s alleged actions.

    I don’t recall ever seeing those burdens being met or shown, and therefore, the prima facie case to extradite is not complete.

  5. I’ve been following this and have read the judges decision and the relevant laws and treaty.

    The first pages of the extradition request establish a strong prima facie case that Dotcom was knowingly breaching copyrights and attaching legislation such that should it be relevant safe harbour regulation would not apply.

    Given that the question is did any of the thirteen counts argued against represent extradition offences in NZ law.

    6 of the counts were for criminal copyright infringements and on page 243 (IIRC) the judge makes the assertion that digital data is an object. If that’s true then the prima facie evidence is that Dotcom committed what would be criminal copyright infringement in NZ and the relevant counts are extradition offences.

    I would be deeply troubled if it were true, I don’t thin digital data is an object and the judge doesn’t seem to reference where this opinion is sourced from.

    If Dotcoms lawyers don’t challenge this then I can only assume they know something I don’t which is that digital data is considered an object in NZ law – something I would find deeply troubling.

    But that aside Dotcom is caught two other ways.

    On page 203 the judge references NZ precedent that copyright breaches such as suggested by the prima facie case against Dotcom constitute fraud and therefore are extradition offences.

    But most damning are the racketeering charges, the prima facie evidence clearly suggests Dotcom was a member of a criminal organisation as defined in the Transnational Organized Crime (TOC) Treaty NZ is a signatory to and which Section 101B of our extradition act clearly makes an extradition offence.

    The question of criminal copyright infringement is, I think, still debatable, the others not.

    His extradition will be sound.

  6. Its a conflict of interest as the Crown has investments and is protecting Hollywood’s racketeering and money laundering business.
    The Courts are “Crown Temple” and so are not independent.
    The Crown : An entity that owns and controls mega corporations, engages in racketeering, setting up and protecting monopolies, a self proclaimed owner of land and “information”.
    As the Treaty it uses to make its claims is legally and lawfully invalid it engages in fraud on a daily basis.
    The establishment sends anyone who does not obey or acts in much the same way as they do to their courts labelled as “criminals ” -that is what a monopoly does.
    Sound hypocrisy from the Crown corporation’s court, going for and protecting an IP and digital data monopoly through the TPPA.

  7. It’s a pity that, despite trying very hard, Kim Dotcom has not been able to prove definitively the National Government’s complicity in allowing him to come to New Zealand in the first place. (The notorious “fake” e-mail and the meeting with Warner Bros) The muddy waters around his residency are highly suspicious, and we know from John Key’s less than high regard for normal democratic processes that it is more than possible that John Key knew about Kim Dotcom from the very beginning, and he was allowed in precisely so the US could get his extradition from a compliant vassal state. Were such to have been proved, it would be John Key on his way out, not Kim Dotcom. I have no particular regard for Kim Dotcom; if he didn’t make his fortune illegally, he certainly made it grubbily, rather similar, I would suggest, to those making their fortunes from currency speculation.

  8. Megaupload was a target due to its leading edge encryption…the nsa dont like that as it takes too much resource to extract. The holywood angle is a means to an end.

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