Megaupload Renews Request For Criminal Charges To Be Temporarily Dismissed; Reminds Judge Of Earlier Request

from the er,-we-did-ask-for-that dept

Thu, Oct 11th 2012 11:45am — Mike Masnick

When we wrote about the US judge in the Megaupload case siding with the US government in saying that, even without being able to technically serve the company (since it has no presence in the US), the criminal case could continue, we assumed that Megaupload would appeal. But even before appealing, the company is asking the judge to reconsider, based on an earlier request and the judge's own comments. The issue is that the judge's ruling only focused on whether or not the charges against Megaupload (but not the individuals charged in connection with the company) should be permanently dropped over the lack of service (in legal terms, it would be about having the charges dismissed "with prejudice"). However, the judge did note that perhaps it would make sense for the charges to be dropped without prejudice -- meaning that they would be dropped temporarily -- until such time as Kim Dotcom was extradited to the US, and could then be served as an "alter ego" for the company itself. The judge did not rule on that, however, since (he claimed) Megaupload had not asked for such a temporary dismissal.

In response, however, Megaupload quickly filed a motion reminding the judge that they had, in fact, suggested dismissal without prejudice back in July, quoting the transcript during oral arguments, which also points out why due process suggests this is the only proper result for a company that has effectively been killed and has no recourse since it hasn't truly been charged yet:

THE COURT: Well, that—can I require them to serve the company on any particular date? There's no date in the rule—there appears to be no statutory limitation, and I understand your due process argument. So I—what if I, you know, would start with a premise that I don't control when the Government decides to serve the company. Where do we go from there?

MR. BURCK: Well, Your Honor, we would submit that if the Court were ruling—going in that direction as a reasoning matter, that the appropriate result would be to dismiss the indictment without prejudice.

Because the company, again, has already suffered all the consequences of a criminal prosecution, so the—even if there's a trial and the company is acquitted and the individuals are acquitted, of course the company is still done.

So, we think that the due process claims trump all the other issues, and we think that if the Court were so inclined, that the Government should take certain steps in order to effectuate service, then—or if the extradition proceedings would be the relevant time line for that, again, the company should have an opportunity during that period of time to try to rehabilitate itself, because there isn't currently a criminal case that is sufficient for purposes of service and they've suffered massive harm.

So, of course, that would not be our preference, and we do think that the Supreme Court has said you can't change the rules of service, et cetera, but the—that’s all in our brief—but we do think that the alternative would be dismissal without prejudice, allow the Government at the appropriate time to then supercede the indictment again, add the corporation into the indictment.

And at that point, a year down the road, two years, however long it takes and wherever the MLAT process or the extradition process takes, at that point we could have this argument as to specific individuals, corporations, entities. But, in the meantime, having the company subject to the burden of a—the incredible burden of a criminal prosecution with no ability to defend itself and no service is an extraordinary result and one that is unprecedented.

In other words, Megaupload is saying dismiss this case until Dotcom is extradited, at which point (if he's ever extradited) then the company can be charged. But in the meantime, it's only fair to not have the company held back -- and the company did make that suggestion many months ago, contrary to the judge's suggestion otherwise.

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Filed Under: due process, kim dotcom
Companies: megaupload

68 Comments

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Reader Comments

The First Word

“

"Great lawyering here. How many thousands of dollars an hour is he paying them?"

You could also say "Great Lawyering" of the NZ Crown Court prosecution with regards to defending the rulings of illegal actions that they have tried to defend on behalf of the US.

1. Crown court appeals against the rulling of the search warrant being illegal. The appeal ruling does not overtun the ruling.

2. Crown Court appeals against the ruling of the raid and seizure of items to be illegal. The appeal ruling does not overtun the ruling.

3. Crown Court appeals against the ruling that the transfering of data to the US was illegal. The appeal ruling does not overturn the ruling.

4. Crown Court appeals against the ruling that the US must give fuller disclosure of evidence against Megaupload before the extradition hearing. The appeal ruling is still pending.

5. It has been deemed that the spying on Dotcom was illegal. No doubt Crown Court will appeal against any ruling that states it too be illegal if it hasn't already been ruled illegal.

How many thousands of dollars has the NZ Crown Court prosecution wasted at the request of the US to defend all these illegal actions. Great Lawyering here for the NZ Crown Court on behalf of the US. It's almost as though the prosecution of the Crown Court are deliberately on purpose trying to screw up the chances for the US on this case but they wouldn't break there own NZ law in doing so would they unlike the US. lol

—Anonymous Coward

”

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Ninja (profile), 11 Oct 2012 @ 10:45am

There is a lot of win in how the lawyers are handling the case and a lot of wisdom in what they are saying. Ultimately the US and the MAFIAA have achieved their intents in virtually killing Megaupload without even a tiny little bit of evidence that it was necessary other than some US Attorneys vociferously yelling they are guilty for all sorts of criminal activities because their service may be used for copyright infringement. And I'm not even mentioning the life of a seemingly innocent man and his family. But hey, he must be guilty because he already did mischievous stuff in the past and leads a flashy lifestyle so let use extradite him without due process.

In the end this whole judicial battle is a shame for justice and yet another sad proof that the US couldn't care less about laws, sovereignty, human rights whatever lies between them and the corporate, fascist interests.
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Kim Dotcom, 11 Oct 2012 @ 12:10pm

Ich liebe das piracy apologists
Danke, Mini-me!!!
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- That Anonymous Coward (profile), 11 Oct 2012 @ 12:46pm
  
  Re: Ich liebe das piracy apologists
  How cute the troll saying anything about Dotcom could be mini, normally they just call him fat.
  [ link to this | view in chronology ]
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    Anonymous Coward, 11 Oct 2012 @ 4:40pm
    
    Re: Re: Ich liebe das piracy apologists
    What a dope. Masnick is Dotcom's Mini-me.
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    - That Anonymous Coward (profile), 11 Oct 2012 @ 5:40pm
      
      Re: Re: Re: Ich liebe das piracy apologists
      No I totally got that however your troll failed because everyone points out how the 2 of them are so fat.
      
      You really should read the handouts for shilling.
      [ link to this | view in chronology ]
      - Anonymous Coward, 11 Oct 2012 @ 8:23pm
        
        Re: Re: Re: Re: Ich liebe das piracy apologists
        Shilling...... me? It's not like I was the one outted as a shill in a Federal court filing like your doughy man-crush.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 12 Oct 2012 @ 2:25am
        
        Re: Re: Re: Re: Re: Ich liebe das piracy apologists
        Shut up troll.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 12 Oct 2012 @ 6:16am
        
        Re: Re: Re: Re: Re: Ich liebe das piracy apologists
        that thing is not what you claim it is, anyone who read the filing knows that.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 12 Oct 2012 @ 8:05am
        
        Re: Re: Re: Re: Re: Re: Ich liebe das piracy apologists
        That's exactly what it is. A Google bankroll being pressed into the greasy palms of individuals and groups to advance its interests.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 26 Oct 2012 @ 6:36am
        
        Re: Re: Re: Re: Re: Re: Re: Ich liebe das piracy apologists
        Yup Google is bankrolling people like Masnick to support piracy, an odd tactic when the other side are bankrolling the politicians, the trade agreements and writing the legislation of their choice.
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Anonymous Coward, 11 Oct 2012 @ 12:18pm

I'll bet the RIAA is thinking "Why didn't we do this back in 1999 with Napster? DANG WHAT A MISSED OPPORTUNITY!"
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- Baldaur Regis (profile), 11 Oct 2012 @ 12:28pm
  
  Re:
  Now we know - it takes around 13 years for an industry to thoroughly corrupt the federal government.
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  - harbingerofdoom (profile), 11 Oct 2012 @ 12:48pm
    
    Re: Re:
    incorrect.
    it takes 13 years for an industry to so thoroughly corrupt the federal government that it thinks it can do whatever the hell it wants, whenever the hell it wants however the hell it want without having to worry about any backlash or legal ramifications.
    
    The actual corruption that would need to be in place for that has to be completed well before that.
    
    not to make you any more depressed about it.
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  - Mr. Applegate, 11 Oct 2012 @ 12:51pm
    
    Re: Re:
    Um, no...
    
    It takes a lot less than 13 years to corrupt the government. In fact it takes less than one election cycle. However, it may in fact take 13 years for the corruption to show itself.
    
    Corruption is much like a cancer, it may go un-noticed until it is too late to get rid of it. At the very least it will have become extremely painful to get rid of.
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out_of_the_blue, 11 Oct 2012 @ 12:51pm

In murky areas of "law", expect technical excuses.
Megaupload is crying because thought it had successfully skirted the law, besides morality, that it had "monetized" products other people made. But the age of outright visible mass piracy is beginning to end.

"(since it has no presence in the US)" -- Well, it's somehow represented. -- But if doesn't, then intra-US actions can't harm it!

By the way, who here last year predicted a push back by Big Media against brazen pirates running big file hosts? ... Oh, yes: out_of_the_blue! -- Look for more of same tactics. I'm telling ya, folks, regardless of your opinions and facts and even of "law", people in multi-billion dollar industries ain't gonna forever suffer losses, even if those are merely a notion too.
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- Another AC, 11 Oct 2012 @ 1:07pm
  
  Re: In murky areas of "law", expect technical excuses.
  who here last year predicted a push back by Big Media against brazen pirates running big file hosts? ... Oh, yes: out_of_the_blue!
  
  You and everyone else in the world, get over yourself.
  
  If one day Megaupload is actually put on trial and they win, will you take back all of these things you say about them? Somehow, I doubt it.
  [ link to this | view in chronology ]
- Anonymous Coward, 11 Oct 2012 @ 1:11pm
  
  Re: In murky areas of "law", expect technical excuses.
  The DOJ and MPAA are the ones who will be crying and throwing a mega nuclear tantum when Dotcom launches his replacement Meguapload in a few weeks time because they will not be able to do anything to prevent it or shut it down because it will be well outside of their jurisdiction.
  [ link to this | view in chronology ]
- Zakida Paul (profile), 11 Oct 2012 @ 1:18pm
  
  Re: In murky areas of "law", expect technical excuses.
  And what an almighty cock up the whole take down and case has been. Instead of turning public opinion against Dotcom, Megaupload and file sharing in general, they have made Dotcom the hero of the piece. The MPAA/RIAA, DOJ, government cannot claim that this has been a success because it has been anything but.
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  - Anonymous Coward, 11 Oct 2012 @ 6:57pm
    
    Re: Re: In murky areas of "law", expect technical excuses.
    LOL
    
    That fat douchebag isn't a hero to anyone except idiots.
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    - Anonymous Coward, 12 Oct 2012 @ 2:32am
      
      Re: Re: Re: In murky areas of "law", expect technical excuses.
      Which makes it even more amazing an achievement.
      [ link to this | view in chronology ]
- Chosen Reject (profile), 11 Oct 2012 @ 1:21pm
  
  Re: In murky areas of "law", expect technical excuses.
  it had successfully skirted the law
  By skirting the law, do you really mean obeyed the law? Do you also think people driving at the speed limit are skirting the law and should be fined for speeding?
  besides morality
  Please don't bring morality into a debate about the law, unless you are debating whether the law is moral. Besides, what you just said is Megaupload "thought it had successfully skirted ... morality". What does that even mean? If you're talking society's morals, then the sheer number of people using it to break the law as the US government claims is an indication that society's morals were perfectly OK with what they did.
  that it had "monetized" products other people made
  Walmart does that. So does Amazon. So does eBay. Why didn't they get seized? Oh right, because monetizing products other people make is perfectly legal. But even if you mean to say what I think you meant to say (which is that they made money even though some of their users were breaking the law), then I suppose you'd have to shutdown Dropbox, YouTube, Gmail, Hotmail, eBay, Microsoft, Western Digital, Comcast, Verizon, Yellow Cab, and the US Government (I'm sure someone has paid taxes on ill-gotten gains).
  By the way, who here last year predicted a push back by Big Media against brazen pirates running big file hosts? ... Oh, yes: out_of_the_blue!
  Is that an admission that your corporate masters let you know what their future plans are? Are you expecting us to worship you, the great Nostradamus of our age? Are we supposed to change our opinions of the insanity of what the RIAA/MPAA/DoJ do simply because you predicted it? Here's my prediction: the more you tighten your grip, the more money will slip through your fingers.
  I'm telling ya, folks, regardless of your...facts
  Glad to see you finally admit you don't care about facts.
  I'm telling ya, folks, regardless of your..."law"
  Is law in quotes because you and yours disdain due process? And "regardless of ... law"? Really. If we're going to throw out laws like due process, let's just toss copyright law as well. It's far less important to take away everyone's rights to spread culture so that a few can "monetize" the works of generations of culture that came before, than to ensure everyone's rights of due process.
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- Anonymous Coward, 12 Oct 2012 @ 2:30am
  
  Re: In murky areas of "law", expect technical excuses.
  "By the way, who here last year predicted (...blah...) Oh, yes: out_of_the_blue!"
  
  You're such an ace sweetheart. Lol.
  
  "people in multi-billion dollar industries ain't gonna forever suffer imaginary losses"
  
  FTFY
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average_joe (profile), 11 Oct 2012 @ 1:21pm

So let me see if I have this right. Megaupload files a motion to dismiss, arguing that process can never be served upon it. The court denies the motion, pointing out that process can one day be served. In a footnote, the court notes that it's weird that Megaupload didn't just ask for a dismissal because of the fact that it hadn't been served, notwithstanding the argument that they couldn't be served. Megaupload now pretends that, even though they didn't make that obvious argument in their motion, they did mention it at oral argument, so the court should consider that motion to have already been made.

Great lawyering here. How many thousands of dollars an hour is he paying them?
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- Anonymous Coward, 11 Oct 2012 @ 1:46pm
  
  Re:
  I was going to make a comment pointing out some of the times you've been here harping on about the law and those who dole out justice, but then I realized doing so would be pointless because you've been in the wrong on numerous occasions about the law and other things and despite that you're "never" wrong.
  
  But as I said the other day, with (soon to be) attorneys like you out there in the world, if I ever become a criminal I know I have nothing to fear. Heck, I'm almost salivating thinking about all the fuck-ups you'll be making one day, fuck-ups that will lead to criminals going free/wrongly accused filing suits against you personally)/etc.
  
  It's hilarious though that you mock Megaupload's attorneys, yet no word/finger wagging at the DOJ's or New Zealand's despite all the procedural screw-ups that have all but guaranteed Kim Dotcom/Megaupload won't ever face U.S. justice.
  
  HILARIOUS. But you and OotB go ahead and pretend like everything is peachy and your side is in the right. For a fat lot of good it does. It's almost cute, the hypocrisy and naivety shown on the part of some of you kids. Almost.
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    average_joe (profile), 11 Oct 2012 @ 1:56pm
    
    Re: Re:
    LMAO. You have issues.
    [ link to this | view in chronology ]
    - Anonymous Coward, 11 Oct 2012 @ 2:06pm
      
      Re: Re: Re:
      Well you should know all about having issues judging by your posts on this site LMAO
      [ link to this | view in chronology ]
    - Anonymous Coward, 11 Oct 2012 @ 2:08pm
      
      Re: Re: Re:
      Coming from the guy who has derailed more articles and still haunts old articles asking why Pirate Mike won't debate him... Yeah, you're one to talk about people having issues.
      [ link to this | view in chronology ]
      - This comment has been flagged by the community. Click here to show it
        
        average_joe (profile), 11 Oct 2012 @ 2:13pm
        
        Re: Re: Re: Re:
        Wow! Burn! You got me so good! ROFLMAO.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 11 Oct 2012 @ 2:47pm
        
        Re: Re: Re: Re: Re:
        I know, right? It's so easy to do too. It's too bad you don't put half as much thought into some of your nonsense as you do your "you got me" comments. Now go high five one of your AC buddies and pretend you guys are the bees knees. (Like you do/did often when you were busy going "why you no debate me Mike?! RAWR?!" every day for too long. You guys thought you were too cool for school. Hint, you're not.)
        [ link to this | view in chronology ]
        
        Karl (profile), 12 Oct 2012 @ 12:00am
        
        Re: Re: Re: Re: Re:
        Wow! Burn! You got me so good! ROFLMAO.
        
        Truth hurts, don't it, Joe?
        
        At least that AC was talking about your actual words and behavior, instead of words you never said, and behavior you never participated in.
        
        Unlike you.
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        average_joe (profile), 12 Oct 2012 @ 8:59am
        
        Re: Re: Re: Re: Re: Re:
        Truth hurts, don't it, Joe?
        
        LOL! Huh? The truth is that Mike Masnick runs from criticism and debate like no other. I'm ready to discuss the difficult issues with him any place, any time, any where. He's the one that runs off like a little child.
        [ link to this | view in chronology ]
        
        Karl (profile), 13 Oct 2012 @ 12:30am
        
        Re: Re: Re: Re: Re: Re: Re:
        The truth is that Mike Masnick runs from criticism and debate like no other. I'm ready to discuss the difficult issues with him any place, any time, any where. He's the one that runs off like a little child.
        
        Thanks a bunch for proving AC's point.
        [ link to this | view in chronology ]
        
        average_joe (profile), 13 Oct 2012 @ 6:07am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        Thanks a bunch for proving AC's point.
        
        LOL! I truly don't understand why you're so defensive about Mike. The fact remains that he runs away from debate from me. All he has are excuses, excuses, excuses. That is a fact.
        
        All he has to do is prove me wrong by actually having a discussion with me where he tackles the issues head on. He never, ever will because he's a coward and a liar.
        
        At least you're honest, Karl.
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        Karl (profile), 13 Oct 2012 @ 10:45pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        I truly don't understand why you're so defensive about Mike.
        
        I am not "defensive about Mike." I am offended by you.
        
        This website is not a venue for some sort of personal grudge match between you and Mike. It is a public forum. By posting off-topic ad hominem attacks on Mike, for reasons that have nothing to do with the story in question, you are spitting on a public forum. You are showing disrespect to everyone who views this site.
        
        It is annoying, it makes you look bad, and it is completely unethical. And it has nothing to do with Mike at all.
        
        As to why I'm even interested: I did used to debate you, and it was informative. At that point, you were debating the law; and debating you helped me understand the law better. (And also that you're usually wrong about it.) But when you stopped posting as Average_Joe, and started posting as an A.C., you turned from a knowledgable debate opponent into an obvious liar and vindictive asshole.
        
        I honestly didn't know that it was you doing this. I probably should have. So perhaps I'm angry at myself for wasting time with you, when you're so obviously an amoral, psychotic asswipe, who cares only about persecuting "pirates" and doesn't give a rat's ass about the interests of artists and creators.
        
        And I am personally involved about the interests of artists and creators. It's what brought me to this site in the first place. I can tell you right now that you're not on our side.
        
        The fact remains that he runs away from debate from me.
        
        The fact that remains is that you have not been interested in "debate" for a very, very long time. You make personal attacks interspersed with loaded questions and sprinkled with outright lies. That's not "debate." That's being a douche.
        
        All he has to do is prove me wrong by actually having a discussion with me where he tackles the issues head on.
        
        First of all, he does not owe you anything. You are a commenter on his website. Techdirt allows you to post your opinions here - unlike, say, trichordist. That is to Techdirt's credit. But Mike has no obligation to "prove you wrong."
        
        But even though he doesn't owe it to you to prove you wrong, he has. Repeatedly. You have been consistently wrong on the legal issues. Seeing as you're trying to be a lawyer, it is in your own best interests to listen to Mike and learn from your mistakes. But of course, you have zero interest in listening.
        
        The non-legal issues have all been "why do you beat your wife" type questions. The "moral" issue is a big one. After Mike answered your question - with the same answer he gave before you even asked - you just attacked him personally, and then said he didn't answer the question, when he did.
        
        No wonder he doesn't want to debate you. You're not debating.
        
        At least you're honest, Karl.
        
        And in my honest opinion, Mike is presenting a consistent and coherent case for his opinions (whether you agree with them or not), while you have behaved like a psychopath, who clearly wouldn't know a moral act if it came up and bit him in the ass.
        [ link to this | view in chronology ]
        
        average_joe (profile), 14 Oct 2012 @ 7:15am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        LOL! Look, I just want Mike to engage me and others who challenge him on the merits. Considering how extremist his views are, it should come as no surprise that me and many others are interested in discussing his views with him. Cracks me up no end that he rips others apart for a living, but he himself runs off like a child when challenged. Keep believing his bullshit excuse, Karl, but the fact is that he won't discuss certain issues with me, or anyone else who goes there, because Mike refuses to be pinned down on almost all of the core issues. He's playing games, and he can't stand it when someone calls him out. Just look at how crazy it makes him when I challenge him. Funny how he'll never, just even once, just have a direct discussion with me. If you can't tell that he's running away, I have a bridge you should look at.
        [ link to this | view in chronology ]
        
        Karl (profile), 15 Oct 2012 @ 11:17am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        I just want Mike to engage me and others who challenge him on the merits.
        
        You have not "challenged him on the merits" for years. Others have - and he has engaged them.
        
        Here's a simple test. Look at Mike's profile, and his comment history. The vast majority of his comments are where he is replying to his detractors, including direct quotes, usually with links to sources outside Techdirt to back up his claims.
        
        Now look at yours. Here's how you "challenge" people "on the merits:"
        
        Fact: Mike will bitch and moan about every perceived "victim" of the six strikes program--no matter how remote the issue, if it can possibly be spun as even suggesting anything conceivably negative it will be glorified and hyper-focused on as if the "only true way; the universe incarnate." LOL!
        
        [Some asshole A.C.:]You only laud those that support your pro-piracy agenda.
        You are truly a sociopath.
        Amen.
        
        Can't wait for all the whining to begin. You know the zealots will be salivating for any story they can prance on that discredits the program.
        
        LMAO. You have issues.
        
        You guys love to throw out the "violates due process!" FUD, having learned to do so from your anti-copyright zealot leader...
        
        And let's not forget that you've been doing this for a very, very long time.
        
        Yeah, it's all about "the merits..."
        
        Considering how extremist his views are
        
        His views are far more mainstream than yours are. You probably think otherwise because you repeatedly attribute viewpoints to him that he does not actually hold.
        
        Or, you want to frame him as an extremist in order to slander and discredit his views. The more I pay attention to your actions, the more likely that seems. "If I lie about him enough times in enough places, eventually someone is bound to believe it!"
        
        Just look at how crazy it makes him when I challenge him.
        
        If you think that Mike is the one acting crazy, you need some serious help.
        
        As a simple courtesy to everyone who reads the site, please get that help before you post here again.
        [ link to this | view in chronology ]
        
        average_joe (profile), 15 Oct 2012 @ 11:45am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        LOL! Fact: I will discuss any issue about copyright law at any time with Mike. Fact: Mike will not discuss certain issues of copyright law with me or anyone else ever. The only one running away is him.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 12 Oct 2012 @ 2:36am
        
        Re: Re: Re: Re: Re:
        Yeah this is all about you maxi Joe. What an egocentric maniac...
        [ link to this | view in chronology ]
- Anonymous Coward, 11 Oct 2012 @ 2:23pm
  
  Re:
  "Great lawyering here. How many thousands of dollars an hour is he paying them?"
  
  You could also say "Great Lawyering" of the NZ Crown Court prosecution with regards to defending the rulings of illegal actions that they have tried to defend on behalf of the US.
  
  1. Crown court appeals against the rulling of the search warrant being illegal. The appeal ruling does not overtun the ruling.
  
  2. Crown Court appeals against the ruling of the raid and seizure of items to be illegal. The appeal ruling does not overtun the ruling.
  
  3. Crown Court appeals against the ruling that the transfering of data to the US was illegal. The appeal ruling does not overturn the ruling.
  
  4. Crown Court appeals against the ruling that the US must give fuller disclosure of evidence against Megaupload before the extradition hearing. The appeal ruling is still pending.
  
  5. It has been deemed that the spying on Dotcom was illegal. No doubt Crown Court will appeal against any ruling that states it too be illegal if it hasn't already been ruled illegal.
  
  How many thousands of dollars has the NZ Crown Court prosecution wasted at the request of the US to defend all these illegal actions. Great Lawyering here for the NZ Crown Court on behalf of the US. It's almost as though the prosecution of the Crown Court are deliberately on purpose trying to screw up the chances for the US on this case but they wouldn't break there own NZ law in doing so would they unlike the US. lol
  [ link to this | view in chronology ]
  - average_joe (profile), 11 Oct 2012 @ 2:39pm
    
    Re: Re:
    Good point. They have made mistakes. I don't think any of those mistakes will affect the ultimate issue of extradition, though.
    [ link to this | view in chronology ]
    - Anonymous Coward, 11 Oct 2012 @ 3:21pm
      
      Re: Re: Re:
      Yes indeed they have made mistakes and these illegal and ulawful actions of the due process of NZ law will not be ignored or overlooked when it comes to ruling on extradition in the extradition hearing. If the appeal ruling stands that the US has to give fuller evidence of its case against Megaupload for the extradition hearing and the US still refuses to give fuller disclosure of evidences and therefore does not comply with the ruling of the Judge then they will no doubt be in contempt of court and if so then the Judge in the extradition hearing could refuse extradition to the US on the grounds that being as the US refused to comply with the court ruling of having to give fuller disclosure of evidence and that they have committed illegal and ulawful actions with not following the due process of NZ law then there may be reason that Dotcom may not get a fair trial when and knowing that the US didn't follow the due process of law of NZ. After all would you extradite someone to a country when and knowing that the country refused to comply with the due process of law of your own country.
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      - Anonymous Coward, 11 Oct 2012 @ 5:13pm
        
        Re: Re: Re: Re:
        YOu miss the key point that failings in NZ don't change the case in the US. At best for Kim, it means he won't get extradicted. However, it still means his businesses outside of NZ will be locked up until he answers the charges in the US.
        
        He doesn't win here, even if he wins. NZ isn't the criminal case.
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        That One Guy (profile), 11 Oct 2012 @ 5:52pm
        
        Re: Re: Re: Re: Re:
        Thing is though, with all the bumbling, the DoJ is going to have to talk very fast, and find a very agreeable judge, to be able to use pretty much any of the evidence they were using to build their case on, given how little care they had in following legal procedures to acquire it.
        
        In the end it wouldn't matter a whit if every piece of evidence they had said he was guilty(which I rather doubt), given almost none of it would be legally admissible due to their actions.
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        Anonymous Coward, 11 Oct 2012 @ 6:12pm
        
        Re: Re: Re: Re: Re: Re:
        "Thing is though, with all the bumbling, the DoJ is going to have to talk very fast, and find a very agreeable judge, to be able to use pretty much any of the evidence they were using to build their case on, given how little care they had in following legal procedures to acquire it."
        
        You assumption is that the case is built only on what the NZ police / Stasi collected, which doesn't appear to be the case. The information used in the case, if I understand it, comes from emails back as far as 2008, provided by an ex-employee or confidant.
        
        Also, US law has some interesting twists. Information that has been denied in another jurisdiction, but has been provided to the US may in fact still be admissible in the US, as the US acted in good faith about it. It's nowhere near as cut and dry as some people would make you think.
        
        No matter what, the NZ legal situation doesn't change the charges in the US that Mega and Kim face. At best, it gives them a safe haven to hide out in, and not much more - and that is only if a local NZ based copyright holder doesn't decide to go after them at some point.
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        Anonymous Coward, 12 Oct 2012 @ 10:33am
        
        Re: Re: Re: Re: Re: Re: Re:
        information is something other than proof beyond reasonable doubt....we already know that some of those emails came from a conversation about a voluntary programme that went beyond the requirements of the DMCA, and we also know that the "illegal" upload mentioned was no such thing. Anyway, there will need t be a lot more tangible information than that provided in the indictment to get a conviction - and whether that evidence exists or is admissible is anone's guess, given that the US is fighting tooth and nail to have to disclose it....
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        Anonymous Coward, 12 Oct 2012 @ 10:34am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        oh, and you are wrong about evidence obtained in other jurisdictions...
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        Spencer (profile), 11 Oct 2012 @ 6:20pm
        
        Re: Re: Re: Re: Re:
        Actually, not true. The failings in NZ do change the case in the U.S., since the evidence was gathered illegally by the NZ police. If the evidence is obtained illegally, it's still inadmissible in a U.S. court, which means that the DoJ would have no case.
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        Spencer (profile), 11 Oct 2012 @ 6:22pm
        
        Re: Re: Re: Re: Re: Re:
        Missed the ACs reply due to realizing I wasn't signed in halfway through typing my comment.
        
        Considering that the U.S. has been ordered to return the evidence, saying that the DoJ is acting in "good faith" is laughable, at best.
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        Anonymous Coward, 11 Oct 2012 @ 7:15pm
        
        Re: Re: Re: Re: Re: Re: Re:
        You don't get it. If the US is ordered to return the evidence, they just return a COPY of the evidence, and keep the original, because no US court has ruled it illegal. Remember, the NZ court cannot dictate the terms of a hearing in the US.
        
        What was obtained illegally in NZ may be fine in a US court of law, in that the US officials didn't do anything specifically illegal in the US to obtain it, and further, once they have it in the US, it's not subject to the same restrictions as in NZ.
        
        You need to learn what good faith means in legal terms, not moral terms.
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        btrussell (profile), 11 Oct 2012 @ 7:30pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        " If the US is ordered to return the evidence, they just return a COPY of the evidence, and keep the original..."
        
        Isn't that stealing?
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        The eejit (profile), 11 Oct 2012 @ 11:04pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        Good faith doesn't seem to apply here. At best, the case has been mishandled enough that criminal malfeasance on the part of the Crown lawyers cannopt be ruled out.
        
        At worst, this is a doctatorship masquerading as a false democracy trying to get rid of someone whose actions they dislike. Which reminds me, Putin called. He wants his techniques back.
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        Spencer (profile), 12 Oct 2012 @ 6:15pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        I "get it" just fine. NZ can't dictate the terms a U.S. hearing, correct, but you seem to be missing the point. The U.S. broke the law when they took the evidence out of NZ to begin with. That's obtaining it illegally, last I checked.
        
        And "good faith", even in legal terms, means that the evidence was believed at the time to be legally obtained. The U.S. knowingly broke NZ law when they took the evidence offshore. And even assuming they did not know, ignorance of the law is just as bad, if not worse.
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        Anonymous Coward, 12 Oct 2012 @ 4:19am
        
        Re: Re: Re: Re: Re:
        If you had understood the latest ruling in the US, you'd know that if KDC doesn't get extradited, the case will collapse, since MU will not be indicted. In fact, even if KDC will be extradites, the case might still collapse, since it is not clear that the corporate veil can be pierced (this is a DoJ claim at the moment, and as all DoJ claims in this case, unproven and so far unsupported by evidence).
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        Scott, 12 Oct 2012 @ 5:34am
        
        Re: Re: Re: Re: Re: Re:
        Which is why I believe DOJ are doing all those fuck ups on purpose,if they loose then MAFIAA would leave them alone.
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        Anonymous Coward, 12 Oct 2012 @ 11:05am
        
        Re: Re: Re: Re: Re:
        If/When Dotcom is not extradited then there will never be a court case trial in the US and Dotcom will not be found to be guilty of any charges against him. No matter how many charges and indictments the US makes it will just all be unsbustantiated and any evidence gathered by the US will also be unsubstantiated and they will forever remain ubstantiated until they have been proved in a court case trial for which a court case trial will never happen if/when Dotcom is never extradited.
        
        The US can rack up charges and make out to the world that Dotcom has committed crimes etc. all they like but these crimes will remain forever unsubstantiated without proof. It is for the US to proof that these crimes are real etc. and they will never be able to proof these unsubstantiated charges if a court case trial never happens.
        
        It doesn't matter if the US case stands after all the fuck ups in the NZ side because if Dotcom is never extradited then that totally fucks ups the US case because there will not be a court case trial to prove there case.
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        Anonymous Coward, 12 Oct 2012 @ 11:13am
        
        Re: Re: Re: Re: Re:
        It doesn't matter if the US case still stands and that his business is locked up if he is not extradited. Dotcom will be launching a new replacement of Megaupload within the next few weeks so it doesn't really matter as he has a new business now and there is nothing in law to say that he can't run a new business or get someone to run a new business for him. I am sure the MPAA and DOJ will be red faced and thinking and no doubt doing everything possible to get this new Mega business stopped or shut down.
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    - Anonymous Coward, 12 Oct 2012 @ 2:38am
      
      Re: Re: Re:
      wishful thinking
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  - Scott, 11 Oct 2012 @ 3:07pm
    
    Re: Re:
    Is it me or that fuck ups are done purpose?
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Anonymous Coward, 11 Oct 2012 @ 1:29pm

This makes me think of the SCO case, with the federal government being SCO.
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- Anonymous Coward, 11 Oct 2012 @ 4:30pm
  
  Re:
  I prefer the analogy of the captive Hun and the sharpened stake pounded into the ground. The federal government is the Hun. Not a lot of wiggle room for them, there.
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James Burkhardt (profile), 11 Oct 2012 @ 4:01pm

I enjoy the fact that the Defense is asking the same question I asked yesterday in response to the insistence that they serve Megaupload as a corporation: what does it solve? The company as it used to run is finished no matter what the trial result.

Whole lot of legal wrangling that serves no end purpose. Until they extradite Kim Dotcom he can just put together some funding and shit out another imaginary corporate person do to his bidding.
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- Anonymous Coward, 11 Oct 2012 @ 4:10pm
  
  Re:
  When Kim Dotcom launches the new replacement Mega in a few weeks time I wouldn't be at all surprised that the DOJ and MPAA will try and do everything to stop it and shut it down etc. There is nothing in law to stop Kim Dotcom from launching a new business even if it means having someone in charge of it for him.
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  - That One Guy (profile), 11 Oct 2012 @ 5:46pm
    
    Re: Re:
    If I understand everything correctly, the whole reason the US felt they had jurisdiction to destroy MU was the servers in the US, which they used as the excuse to say he was able to be served/treated as a US business.
    
    From what I've read, when he gets the replacement service up and running, there will be no servers in the US, and the ability for businesses from the US will be either severely limited, if not prohibited, from working with the new service, to avoid a repeat of this whole fiasco.
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    - Anonymous Coward, 11 Oct 2012 @ 7:19pm
      
      Re: Re: Re:
      Kim will have to block out every country that has a copyright law, because each and every one of them will be looking closely at the service and how it is provided to their citizens.
      
      Quite simply, the bell has been rung now. MU is the first clear case where the legal systems of the planet are being forced to look at this country to country activity, and any more by Kim to ramp up a service will very likely be met with agressive legal action all over the world.
      
      I will not be shocked to see the US move legislation to "fix" the legal hole Kim tries to hide into. If there is any method for a US customer to obtain service from the new MU replacement, you can expect Kim to get the same treatment again.
      
      As a side note, opening a new MU replacement while this one is still in legal space pretty much puts Kim in more legal hot water. Clearly he has no respect for the process, and it's likely to count against him in any legal filings he makes. The legal action against him is not enough to get him to stop his activities.
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      - The eejit (profile), 11 Oct 2012 @ 11:07pm
        
        Re: Re: Re: Re:
        Great! Let's just ignore basic sovereignty as the inhibitory boondoggle it actually is! Fuck Unintended Consequences! Let's just have Rupert Murdoch ectradited to Saudi arabia for printing boobs in a newspaper! Let's just extradite Jon Stewart for insulting Syria! Let's just extradite Glenn Beck for being a fuckwad! Let's just extradite Romney for not being rich enough!
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      - Anonymous Coward, 12 Oct 2012 @ 11:28am
        
        Re: Re: Re: Re:
        I think what Dotcom is trying with the new Mega business is like the great interent wall of China. The new Mega will probably be limited to a few countries and the other countries will be totally blocked from accessing the site so the whole of the US will be blocked at IP level or something like that so that they won't be able to access the new site. If access to the site from the US cannot be accessed then what can the US do to shut it down when it is outside of there complete control. It doesn't really matter if Dotcom starts a new buisness whilst fighting leagal action against the currnet one, The DOJ and others in the US may take this that he doesn't care about due process of law of the US but then why should Dotcom or anyone else for that matter should have to follow the due process of law of the US when they don't even reside in the country. If Dotcom is never extradited to the US to face trial then it doesn't really matter that the company is destroyed and assets and money frozen is seized and frozen etc. because the new business will replace it all and will be run shortly and will be outside of US jurisdiction so they won't be able to shut it down.
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Tim Dotcom, 11 Oct 2012 @ 9:27pm

Lots of laws have been broke in this case...
...but Mr. Dotcom hasn't been the one breaking any of the laws. I think it's pretty clear that Mr. Dotcom will not receive a fair trial in the USA.

Just think of all the valuable and limited Government resources wasted illegally spying on Mr. Dotcom. Resources that would have been better spent trying to keep US Ambassadors alive in hostile territories.

But no, those resources were wasted spying on law abiding citizens playing Call Of Duty in New Zealand...
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Bergman (profile), 12 Oct 2012 @ 7:31pm

If a corporation is a legal person, would not killing that corporation without due process be murder?
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