NZ Appeals Court Rules Kim Dotcom Can Be Extradited

Kim Dotcom lost a big case today in the New Zealand Court of Appeals. The court ruled that "all pathways" of the U.S. for his extradition are open. Here is the court's press release, the summary of the judgment and the 120 page decision is here.

The Court confirmed that the principle of dual criminality is alive and well -- but that didn't save Dotcom, even though New Zealand doesn't have a specific law criminalizing copyright infringement.

Legislative history, English and Canadian authority and principles of extradition law all suggest that the conduct with which a person is charged must be criminal under both United States and New Zealand law before they can be extradited.

In making that finding, the court overuled a Canadian case, Cullinane v United States of America [2003] 2 NZLR 1 (CA) is overruled.

So on what grounds did they authorize the extradition?

The United States relied on a range of extradition pathways in seeking the extradition of the appellants. The Court has confirmed all of these extradition pathways are available to the United States, and that the United States has tendered sufficient evidence to support their case on those pathways.....

....Turning to the particular pathways relied on, the Court disagreed with the High Court Judge and held s 131 of the Copyright Act could be relied on by the United States. It rejected a submission from the appellants that Parliament has chosen not to criminalise copyright infringement, and held a criminal offence is committed by anyone who knowingly possesses an infringing digital copy of a protected work in the course of a business with a view to committing any act that infringes copyright. Criminal copyright infringement is also possible under certain offences in the Crimes Act 1961, such as dishonestly accessing a computer system.

Possible? Under a statute by punishing a different crime? How is that dual criminality?

Then the court held that it wasn't necessary for the U.S. to show the copyright status of the infringed upon works. In other words, it's ok to extradite Kim Dotcom for copyright infringement even without a showing the works he infringed on were subject to a copyright.

The Court then held that the High Court Judge was right not to require proof of the copyright status of the works the appellants were said to have infringed. Extradition law focuses on the core criminality alleged, and matters that are not part of that core criminality are transposed from the requesting state into New Zealand law and assumed as part of the extradition process. Copyright status is such a matter but, even if it is not, the Court considered the evidence was sufficient on the point.

So Kim Dotcom can be liable through osmosis?

Alice in Wonderland, indeed.

  • Dual criminality is required but it's okay that NZ doesn't criminalize copyright infringement because there are other NZ offenses that possibly could cover it.
  • There's no need to to prove any specific work were in fact copyrighted in order for Kim Dotcom to be extradited for copyright infringement
  • There's no need to review the illegal conduct the US and NZ engaged in to obtain the evidence to search, indict and seek to extradite Dotcom and his partners, because that's a trial issue for the U.S. to decide.

So the FBI and cops in another country can illegally intercept your communications and throw due process down the drain because NZ has no problem ignoring the U.S. exclusionary rule and considering illegally obtained evidence in deciding whether you should be extradited.

Kim Dotcom will be appealing this ruling to the New Zealand Supreme Court.

Six years of litigation and still no final decision. Does anyone even remember MegaUpload? I do.

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  • Display: Sort:
    I agree (none / 0) (#1)
    by linea on Wed Jul 04, 2018 at 10:39:52 PM EST
    Re: `even though New Zealand doesn't have a specific law criminalizing copyright infringement.'

    By this logic, Saudi Arabia could successfully request extradition of NZ citizens for criminal violation of Saudi religious blasphemy laws commited by NZ citizens on the internet.

    Here is the decision (none / 0) (#2)
    by Peter G on Fri Jul 06, 2018 at 05:50:09 PM EST
    I was curious to see what NZ offense the court considered to be sufficiently equivalent to US copyright fraud. The opinion is very long, and I cannot say I have studied it, but it seems that the issue was not whether copyright infringement is an offense in NZ (apparently it is) but rather whether their statute extended to online infringements of the sort alleged against Kim Dotcom.

    Looks like it (none / 0) (#5)
    by Zorba on Tue Jul 10, 2018 at 09:05:10 AM EST
    They seem to want people to go to Tunisia for plastic surgery.
    Oh, sure, I'm right there!  /s

    Do you think the post could have (none / 0) (#6)
    by Peter G on Tue Jul 10, 2018 at 09:33:53 AM EST
    been written by a computer program, rather than by a human with bad English?

    The bots are back (none / 0) (#7)
    by CaptHowdy on Tue Jul 10, 2018 at 09:39:27 AM EST
    Oh, sure, very likely so (none / 0) (#8)
    by Zorba on Tue Jul 10, 2018 at 11:06:14 AM EST
    But it does look like they're advertising plastic surgery and cosmetic procedures done in Tunisia.
    We seem to have spam and bots popping up all over the place, in several threads.

    I wonder what Marcy Wheeler was experiencing (5.00 / 1) (#9)
    by Militarytracy on Tue Jul 10, 2018 at 12:20:24 PM EST
    On her website that caused her to believe that "a source" was attempting to infiltrate her website and place her readers at risk?

    She said (none / 0) (#10)
    by Ga6thDem on Tue Jul 10, 2018 at 09:03:02 PM EST
    something about someone who contacted her on election day 2016 who she now believes to be a Russian asset it seemed to me.

    She also said she believed they (none / 0) (#11)
    by Militarytracy on Wed Jul 11, 2018 at 06:10:14 AM EST
    Were attempting to tamper with her website, but she did not expose how yet

    My 3rd Note 8 died (none / 0) (#12)
    by Militarytracy on Wed Jul 11, 2018 at 06:59:14 AM EST
    Text me so I have your number