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.
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.