George Mason University Antonin Scalia Law School

One Step Closer to Mega Justice: Kim Dotcom Loses Extradition Hearing

Cross-posted from the Law Theories blog.

The news broke last night that Kim Dotcom has suffered a major setback in his bid to avoid standing trial in the Eastern District of Virginia on multiple felony charges relating to his Megaupload website. District Judge N.R. Dawson of the Auckland District Court in New Zealand dropped his 271-page bombshell opinion, holding that Kim Dotcom and his three co-defendants are eligible to be extradited to the United States. It’s been nearly four years since Dotcom was arrested in a dramatic raid by the New Zealand Police in early 2012, and this decision means that the victims of the so-called “Mega Conspiracy” are finally one step closer to justice.

Judge Dawson’s opinion is a remarkable read. He spends much of the opinion (pp. 16–172) going over a “selection” of the evidence and its inferences as proffered by the United States. For people claiming that there is no evidence that Dotcom did anything wrong, this should be required reading. The number of smoking-gun emails and Skype conversations is staggering. Luckily for the victims, the members of the Mega Conspiracy were not very good at covering their tracks.

There’s no doubt that Dotcom and his international team of lawyers have done a good job of stalling the proceedings. I’m sure most criminal defendants would love to receive even half as much legal representation as Dotcom has been able to procure. But at the end of the day, Judge Dawson is completely unimpressed with all of the irrelevant things that Dotcom argued. From the get-go, Dotcom tried to turn this extradition hearing into a trial on the merits under U.S. law—incredibly ironic, given that such a trial is the last thing Dotcom really wants. Judge Dawson thoroughly casts aside Dotcom’s extraneous nonsense and gets right to the heart of the matter.

As a preliminary matter, Judge Dawson rejects all three of Dotcom’s applications to stay the proceedings. The legal issues to be decided under New Zealand’s Extradition Act 1999, he says, are simple:

The Court must be satisfied, [1] that the appropriate supporting documentation has been produced, [2] that the offence is an extradition offence in relation to the extradition country and [3] that there is sufficient evidence relating to the offending that would justify the person’s trial if the conduct constituting the offence had occurred in New Zealand.

Note that Dotcom’s guilt under U.S. law is not something Judge Dawson decides—and rightfully so. That’s a matter for District Judge Liam O’Grady to oversee once Dotcom stands trial in the Eastern District of Virginia. Judge Dawson notes that Dotcom is “entitled to challenge the correctness of the evidence,” but that “any challenge to the evidence must be more than simply an alternative explanation.” And this is a big problem for Dotcom: All of his denials and handwavings are simply alternative explanations, and they don’t undermine the reliability of the evidence. The question, as Judge Dawson sees it, is whether the evidence would support a trial under New Zealand law. U.S. law, he holds, is irrelevant.

Dotcom claimed that he couldn’t conduct a proper defense because he couldn’t hire the experts he wanted to rebut the U.S. government’s read of the applicable law, but Judge Dawson would have none of it: “It is not within the jurisdiction of this Court to rule upon competing views of USA law. That is a matter for trial in the US court.” Furthermore, the fact that Dotcom could offer alternative explanations for the evidence just didn’t matter: “It is not the role of this court to weigh the merits of the applicant’s case against the possible alternative explanations that might be provided by the respondents.”

In one of my favorite passages, Judge Dawson mentions Dotcom’s claim that he’s being railroaded and that “public confidence in the integrity of the criminal justice system would be undermined if a stay was not granted.” Judge Dawson returns fire by pointing out that Dotcom has enjoyed “full access to the New Zealand legal system” and that granting the stay “with total disregard for the law,” as Dotcom would have it, “is more likely to undermine public confidence in the criminal justice system[.]” Touché!

It’s not until page 221 that Judge Dawson finally turns to the merits of whether Dotcom is eligible to be surrendered to the United States. That analysis, under Section 24, has two steps: (1) whether the alleged offense is an “extradition offence,” and (2) whether a prima facie case been established. Judge Dawson runs through this two-step test for all thirteen counts: conspiracy to commit racketeering, conspiracy to commit criminal copyright infringement, conspiracy to commit money laundering, five counts of criminal copyright infringement, and five counts of fraud by wire. Referencing the 150-plus pages of evidence he laid out earlier in the opinion, Judge Dawson holds that a prima facie case for each of the counts has been established for each of the defendants.

This is a far cry from the affidavit submitted by Harvard’s Larry Lessig, who claimed that there was no prima facie case against any of the defendants on any of the counts.

One issue worth mentioning is Dotcom’s claim that he would be eligible for the DMCA safe harbors in the United States. Judge Dawson has nothing to say about this, as he doesn’t think U.S. law is relevant to this hearing. But he does have this to say about Dotcom’s eligibility for the safe harbors under Section 92B of New Zealand’s Copyright Act:

The purpose and intent of s 92B is to provide a “safe harbour” for ISPs that unintentionally have their storage used by others to store illegitimate materials, a true “dumb pipe”. . . . Protection under s 92B is not available on the evidence adduced at this hearing. There is evidence before the Court sufficient to establish that the respondents were in the course of a business that knowingly uploaded copies of copyright protected material, they kept it with a view to committing acts that would infringe the copyright, they were complicit in promulgating that they possessed such material, and distributed it to large numbers of people for their own financial gain.

In other words, Dotcom would get no safe harbors under New Zealand’s version of the DMCA.

Lastly, Judge Dawson entertains Dotcom’s entertaining claim that a special exception should be made just for him because he is the victim of a politically-motivated prosecution orchestrated by “US movie studios executives” and “the Vice President of the United States of America, Mr Joe Biden.” (Seriously, he argued this.) Judge Dawson easily brushes this off:

That Mr Dotcom has a different point of view about the use of the internet from others including the US movie studios does not have the hallmarks of what is ordinarily regarded as political persecution for political beliefs. It is a difference of opinion about a business matter, the use of the internet and the application of copyright law.

No dice.

In the end, Judge Dawson notes that “it is not possible to issue decisions that would be less than encyclopaedic in length in order to cover every minor point alluded to in the hearing.” Regardless, he finds that “[t]here is no need to do this” since none of Dotcom’s arguments “come near to undermining the applicant’s case[.]” As such, Judge Dawson concludes that “[t]he overwhelming preponderance of evidence . . . establishes a prima facie case to answer for all respondents on each of the counts” and that “the respondents are all eligible for surrender on all thirteen counts in the superseding indictment.”

Dotcom will appeal, naturally, and his Twitter feed indicates that he feels good about his chances. I honestly can’t fathom why. It seems to me that his only success so far has been in delaying the inevitable, but that inevitably he’ll have to do the one thing that he doesn’t really want to do—defend his case on the merits under U.S. law when it really counts.