New Zealand Court Says Kim Dotcom Still Eligible For Extradition... But Not Over Copyright

from the wait,-what? dept

Tue, Feb 21st 2017 3:28am — Mike Masnick

After quite some time, a New Zealand court has said that Kim Dotcom is eligible for extradition to the US -- something he's been fighting for over five years. But there's a weird twist to the story. A key part of the argument that Dotcom's lawyers have been making is that for extradition to the US, there needs to be "dual criminality" (you can hear Dotcom's lawyer, Ira Rothken, discuss this on our podcast a few months back). And, the key "crime" that Dotcom is charged with involves secondary copyright infringement (i.e., creating a platform that others use to infringe). But, that's a problem, as there's no criminal secondary copyright infringement under New Zealand law (nor US law, but that's a separate issue). So, here's the twist. The court actually agreed that there's no such thing under New Zealand law -- and said that Dotcom can't be extradited for copyright infringement. However, the court said that he can be extradited for "fraud" because there's dual criminality there.

As Dotcom's lawyers point out, that means this is no longer, as was claimed by the US, the "largest criminal copyright case" because copyright is officially no longer a part of it. But, if the copyright part is taken out... where's the "fraud"? The whole claim of "fraud" is based entirely on the fact that Megaupload users infringed on copyrights. So if that's not a crime, then, um... where's the fraud?

I know that some will argue that it doesn't really matter, and they'll insist that what Dotcom and Megaupload did was "bad" -- end of story. But we're still supposed to live under the rule of law, and you don't just get to throw people in jail because they're "bad." You have to prove they actually broke the law. But that's a big problem here, because Megaupload didn't violate copyright law. And if it didn't do that... where's the "fraud"? Dotcom's lawyers will now try to appeal this part of the ruling, extending this legal fight even further. But it's a bigger issue than that. If courts can wipe away safe harbor protections by service providers by hiding behind a "fraud" claim, there are no longer safe harbor protections:

The High Court has accepted that Parliament made a clear and deliberate decision not to criminalise this type of alleged conduct by internet service providers, 5 making them not responsible for the acts of their users. For the Court to then permit the same conduct to be categorised as a type of fraud in our view disrupts Parliament’s clear intent. The High Court decision means that Parliament’s intended protection for internet service providers is now illusory. That will be a concern for internet service providers and impact on everyone’s access to the internet.

That's dangerous for free speech, it's dangerous for innovation, and it's dangerous for basic respect for the law.

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Filed Under: copyright, criminal copyright, doj, extradition, fraud, intermediary liability, kim dotcom, new zealand
Companies: megaupload

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David, 21 Feb 2017 @ 3:53am

For a moment here I thought

I know that some will argue that it doesn't really matter, and they'll insist that what Dotcom and Megaupload did was "bad" -- end of story. But we're still supposed to live under the rule of law, and you don't just get to throw people in jail because they're "bad."

The standard procedure is to elect them as president. I thought that the administration wants Dotcom in order to have a less grandiose and more capable candidate for the next presidential election.

But then he isn't a U.S. citizen or resident. But if that's no impediment to declaring him a fugitive, maybe it's no impediment for the presidency either?

It's hard to track the DOJ's ideas about what is supposed to be lawful or not, and the Constitution is not much help.
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Anonymous Coward, 21 Feb 2017 @ 4:38am

So because there were no grounds to charge him for criminal copyright infringement, they charged him for fraud... on the grounds of criminal copyright infringement which there were no grounds for.

That escalated quickly.
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Alien Shadow Government, 21 Feb 2017 @ 4:43am

Alien Sub Culture
It's the shadow alien government that wants dot Com buried. He took that which he was not entitled to. We must expose the shadow alien government now before they finally kill us all.
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Anonymous Coward, 21 Feb 2017 @ 4:44am

Such low standards of journalism!
Did Kim Dotcom sponsor this article? Because it's pretty trivial to think of cases where fraud charges are justified when copyright infringements is not.

I have no idea why the US says Dotcom committed fraud, but a provider who sought funding, loans, or similar by representing their users as law-abiding abiding when the provider knows they are breaking laws, would be committing pretty typical fraud.
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Anonymous Coward, 21 Feb 2017 @ 4:47am

Jurisdiction
So when he does get here seems like he should easily get his case dismissed since none of the 'crimes' took place on US soil.

If that fails I can't wait to see other countries using that precident to extradite US citizens for doing perfectly legal things in the US.

Hopefully no one in the US has ever expressed their right to free speech and called the Thai king a 'poopy head' since doing to is illegal in Thailand.
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trump vader, 21 Feb 2017 @ 5:03am

problem with this fraud
A) in copyin g a file the original is still there so theft or fraud cannot take place
B) this is why copyright laws have been made
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Anonymous Coward, 21 Feb 2017 @ 5:03am

Get out the popcorn and watch the cloud die a slow painful death. Can't happen too soon. Thank the overweight dude with the short hair and the bad breath for me. Next time he might work out of a jurisdiction that values human rights over corporate profits.
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Anonymous Coward, 21 Feb 2017 @ 5:06am

As Dotcom's lawyers point out, that means this is no longer, as was claimed by the US, the "largest criminal copyright case" because copyright is officially no longer a part of it.

Huh? They're still facing five counts of criminal copyright infringement in the United States, Mike.
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Anonymous Coward, 21 Feb 2017 @ 5:07am

Re: Such low standards of journalism!
See what you did there in your example?
You justified fraud charges because there was a cover-up of criminal activity.

I've not seen anything showing the Dotcom was actively encouraging or hiding any illegal use of his platform. He actually seemed to respond to and take down infringing URLs when made aware of them by rights holders.

It is not illegal to share files, I have plenty of publically shared files on my google drive and I don't see Google execs being charged with crimes related to my actions.

So it's OK for Google to allow users to share files provided they remove infringing URLs when requested yet it's suddenly a criminal act when Dotcom does the same?
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Peter (profile), 21 Feb 2017 @ 5:12am

Some questions
- if he can't be extradited for copyright -related charges, does it mean he can not be tried on copyright-related charges in the US?

- exactly what constitutes the 'fraud' and the 'RICO' offenses he is charged with?

- what is the maximum penalty for those charges in the States?
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Anonymous Coward, 21 Feb 2017 @ 5:20am

Re:
How can they extradite him for fraud yet charge him with criminal copyright infringement?

Seems like the only fraud here is how the laws are being twisted to obtain an outcome unintended by law.
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PaulT (profile), 21 Feb 2017 @ 5:35am

Re: Re: Such low standards of journalism!
He jumped straight to "the article questioned the charges against Dotcom so the author must have been paid off". I think you can disregard any other conclusions. We're lucky it wasn't just "Dotcom is fat" or "I don't like him so lock him up" and this one thoughts past the obvious troll, although the comment was just as wrong.

"It is not illegal to share files"

It's always worth noting that many users of Megaupload were storing files there legally, including some who had to sue because the servers were shut down before they could retrieve their own data. Plus, the musicians who spoke out in force because they were actually monetising their own content there.

It can be argued that this didn't represent the majority of the users (although none of these people normally provide actual data when they claim things), but the situation is a lot more complicated than shutdowns of many other platforms. But, he'd rather literally state that a business should be liable for fraud if its customers are not following the law. I don't think he thought that cunning plan through.
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Anonymous Coward, 21 Feb 2017 @ 5:44am

Re: Re:
How can they extradite him for fraud yet charge him with criminal copyright infringement?

They were also charged with five counts of fraud: https://www.justice.gov/sites/default/files/usao-edva/legacy/2013/12/20/Certified%20Mega%20Supersedi ng%20Indictment%20%282-16-2012%29.pdf

But to your question, the issue is whether the acts are doubly-criminal, that is, a crime in both countries.

The acts are crimes in the United States under 17 USC 506 (criminal infringement), 18 USC 2 (aiding and abetting), 18 USC 371 (conspiracy), and 18 USC 2319 (criminal infringement).

The judge held that the same acts that establish those crimes in the United States also establish crimes in New Zealand--though they constitute criminal frauds.

There is no requirement that the same acts constitute the same exact crime in both countries; the rule is simply that the same acts are criminal in both countries.

It's more nuanced than Mike is reporting.
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Anonymous Coward, 21 Feb 2017 @ 5:53am

Most of the copyright charges have expired due to exceeding the statute of limitations and are no longer valid. At this rate that the appeals process is going the RICO and fraud charges will reach their expiry of the statute of limitations and then once expired there will be no charges or grounds to extradite Dotcom on.
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PaulT (profile), 21 Feb 2017 @ 5:53am

Re: Re: Re:
"There is no requirement that the same acts constitute the same exact crime in both countries; the rule is simply that the same acts are criminal in both countries.
It's more nuanced than Mike is reporting."

As far as I'm reading, that's what's being questioned. The question is, since the fraud is apparently dependent on the copyright infringement being criminal, how can the fraud charges stick if the infringement is not criminal? Honest and thorough explanations are always welcome, I believe.

It does seem problematic if this is true, if only because it stinks of someone being railroaded to "get him" for something, anything, even though the original charges are not valid. This being, by the way, after he's already been punished without a trial because he's had his business shut down for what is now primarily a misdemeanor or even a civil complaint - and at the behest of actors with no direct jurisdiction. While NZ authorities are certainly also culpable, the whole thing is troublesome even if Dotcom is 100% guilty of all charges (and it's also doubtful he'll get anything like a fair trial in the US now no matter his actual guilt).
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Anonymous Coward, 21 Feb 2017 @ 5:55am

Re: Re: Re:
17 USC 506 only applies to direct infringement for commercial gain. That doesn't apply as the US Government has not alleged any direct infringement only secondary and tertiary. 18 USC 2319 doesn't apply because Title 17 contains no explicit provision that secondary or tertiary infringement is a criminal act. 18 USC 2 doesn't apply because there is no underlying crime actually alleged. And 18 USC 371 also does not apply because no underlying crime has been alleged.

Unlike in civil law, something must be explicitly stated to be illegal for it to be criminal. Now that doesn't mean that Congress needs to say "If Jimmy steals a candy bar from 7-Eleven then he is guilty of theft." It just means that they must explicitly make an act a crime. Congress explicitly chose to not make secondary or tertiary infringement a criminal act. The fact that the case wasn't dismissed on those grounds alone in the USA is just a sign of how terrible the presiding judge is.

This case should have been dismissed and penalties levied against the US Attorney years ago.
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Football, 21 Feb 2017 @ 6:21am

The case was never about just "copyright", but PROFITING from infringement.
http://www.theregister.co.uk/2017/02/20/nz_court_rules_us_can_seize_kim_dotcom_after_all/
"A number of authorities, both before and after the Treaty was signed... confirm that a conspiracy to commit copyright infringement is a form of conspiracy to defraud."
And:
*"This has been the case for over 100 years. The copyright legislation in the United Kingdom has never been seen as the only means of recourse or as a bar to such prosecutions being brought under general criminal fraud provisions in serious cases of copyright infringement."*
and:
"Judge Gilbert also made short work of [defense] argument that Megaupload was a neutral intermediary, and thus deserving of "safe harbours", which limit an internet service's liability."

Also of interest July 19, 2016:
https://torrentfreak.com/court-orders-dotcoms-megavideo-to-pay-13-4m-for-tv-show-piracy-160719/
"Megavideo failed on a number of points, notably by organizing content into various categories, placing advertising based on the geo-locations of its users, and lifting viewing limitations on users after they paid a subscription."

Even Gizmodo doesn't support him! From 9/11/16:
http://gizmodo.com/nobody-is-watching-kim-dotcom-s-livestreamed-extraditio-1786510047
"Rememb er Kim Dotcom? He's the convicted fraudster-turned rich dude who ran MegaUpload, that file storage website that hosted a ton of pirated content."
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Anonymous Coward, 21 Feb 2017 @ 6:31am

Re: Such low standards of journalism!
Well you tried....
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Anonymous Coward, 21 Feb 2017 @ 6:33am

Re:
You do realise that the device you typed that oh so pithy reply uses the cloud right?
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Anonymous Coward, 21 Feb 2017 @ 6:37am

Re: Re:
The Cloud ... what does this term even mean anymore?

Gotta laugh whenever I hear it used, seems to mean something different everytime.
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PaulT (profile), 21 Feb 2017 @ 6:48am

Re: Re: Re:
It's primarily a marketing term nowadays, so it can mean whatever people want it to. I suspect the OP is thinking of one particular usage he hates - perhaps the trend of moving storage and services offsite (which is not specifically a bad thing if done carefully with decent mitigation and backups). But, that's not all it refers to by a long shot.
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Anonymous Coward, 21 Feb 2017 @ 6:52am

Re: Re: Re: Re:
17 USC 506 only applies to direct infringement for commercial gain. That doesn't apply as the US Government has not alleged any direct infringement only secondary and tertiary.

I feel like you haven't read the indictment. If you read the indictment linked to above, you'll see that one of the counts is for direct infringement by Dotcom et al. of a pre-release film. There is also a count alleging direct infringement by Dotcom et al. for the systematic scraping of YouTube videos. Mike glosses over these counts, but they are there.

The other criminal copyright counts involve discrete 180-day periods. For example, Count Five is for the 180-day period leading up to Jan. 19, 2012. The indictment lists several direct infringements that were done by others during this period, including titles such as Bad Teacher, Harry Potter, Galactica. The government's theory here is that Dotcom et al. are liable as aiders and abettors under 18 USC 2.

Both judges in New Zealand to have looked at the indictment have found that each count has been sufficiently alleged for each defendant. If you're only getting your info from Mike, you're not getting the whole picture.
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Anonymous Coward, 21 Feb 2017 @ 7:00am

Re: Re: Re: Re:
Unlike in civil law, something must be explicitly stated to be illegal for it to be criminal. Now that doesn't mean that Congress needs to say "If Jimmy steals a candy bar from 7-Eleven then he is guilty of theft." It just means that they must explicitly make an act a crime. Congress explicitly chose to not make secondary or tertiary infringement a criminal act. The fact that the case wasn't dismissed on those grounds alone in the USA is just a sign of how terrible the presiding judge is.

Sorry, hit submit before I responded to this. 18 USC 2 makes it a crime to aid and abet others who commit federal crimes. The aiders and abettors are guilty just as if they had committed the crime themselves. 18 USC 2 applies to 17 USC 506, thus making aiding and abetting criminal copyright infringement a crime. Dotcom et al. are charged under both statutes.

They have a weird argument that 18 USC 2 does't apply to 17 USC 506 because the Copyright Act used to have its own provision for aiding and abetting that was removed. They argue that it was removed because Congress decided that it's perfectly OK for people to aid and abet criminal infringement. That's of course silly, but the answer to their argument is that Congress removed the provision from the Copyright Act because it was redundant with 18 USC 2. Lots of particular aiding and abetting provisions were excised from the U.S. Code because of such redundancy.

Aiding and abetting criminal infringement is a crime, and there is zero doubt of this fact. People are convicted of it every year. Again, if you're only getting your info from Mike, you're not getting all of the relevant info.
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Anonymous Coward, 21 Feb 2017 @ 7:02am

Where could this lead?
As I understand it, there is no such thing as secondary liability for bank robbery, either. So if, for example, one of Ford's customers uses a Ford automobile to rob a bank, Ford bears no secondary responsibility for it. However, under the theory of this ruling Ford could be charged with fraud. (although I imagine 'selective enforcement' would come into play as usual)
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Anonymous Coward, 21 Feb 2017 @ 7:43am

so check out who paid this judge what to do exactly as the US DoJ wanted! then not only prosecute the judge but get him thrown off the bench. then go after the DoJ for committing what could only be bribery of some sort, surely, and get them thrown out of NZ after being thrown into prison for what they did!!
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Anonymous Coward, 21 Feb 2017 @ 7:53am

Mr masnick, you have zero credibility since it came to light Google used you as paid shill. And both of you tried to hide behind journalism.
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Anonymous Coward, 21 Feb 2017 @ 8:00am

Re: Where could this lead?
Grrreat point! "no such thing as secondary
liability for bank robbery, either"

Because that's totally like running a site
with petabytes of obviously copyright content.
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PaulT (profile), 21 Feb 2017 @ 8:04am

Re:
"Mr masnick, you have zero credibility since it came to light Google used you as paid shill"

Weird. Nobody's provided actual evidence to back that claim up, despite being the (always anonymous) accusers being asked repeatedly for something approaching evidence other than "Mike was sponsored for an event whose funding he publicly disclosed". I'd love to see some evidence eventually.

Yet, you people always keep coming back here with the same accusation and same lack of evidence. It's strange - if he has no credibility, why are you so worried about people reading his words? If he's so lacking, why do you never reveal who you are - or who you're being paid by?

"And both of you tried to hide behind journalism."

How do you hide behind journalism? How is that any better or worse than hiding behind the anonymity that Mr. Masnick provides you?
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Anonymous Coward, 21 Feb 2017 @ 8:11am

Re: Re: "How do you hide behind journalism?"
How do you hide behind journalism? Easy: pretend
that you're an objective journalist, not being
paid to flak a position.

Money changes everything, EVEN IF it's
brazenly stated.
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Anonymous Coward, 21 Feb 2017 @ 8:16am

Re: Re: Re: Re: Re:
Aiding and abetting crimes sure does sound like a good thing to catch him, however there would have to be convictions to back this up first. There have been none and will never be any. His company was illegally stopped and his assets seized on bogus legal theory. His drives were copied and sent to the FBI illegally as well. So far, the only provable crimes involved, are all on the governments end.
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I.T. Guy, 21 Feb 2017 @ 8:19am

Re:
Links or GTFO. The bullshit "proof" link yesterday was nothing of the sort.
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Anonymous Coward, 21 Feb 2017 @ 8:21am

Re: Re: Re: Re: Re: Re:
Aiding and abetting crimes sure does sound like a good thing to catch him, however there would have to be convictions to back this up first. There have been none and will never be any.

The government doesn't have to convict the party that was aided and abetted--heck, the government doesn't even have to name them. It just has to prove that somebody else committed a crime and Dotcom et al. aided and abetted them.
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Anonymous Coward, 21 Feb 2017 @ 8:31am

Re:
Hey comrade, do they pay you in vodak or in actual money?
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Anonymous Coward, 21 Feb 2017 @ 8:32am

Re: Re: Where could this lead?
Obvious to who?
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Anonymous Coward, 21 Feb 2017 @ 8:37am

Re: Re: Re: "How do you hide behind journalism?"
Nice IP address change. You are aware that based on your definition it's against the CFAA, right?
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Anonymous Coward, 21 Feb 2017 @ 8:53am

Re: Some questions
Wire Fraud is based around their promises on their "Abuse Tools" not being kept and thus again relying on a copyright infringement crime as the base. For now the judges seems to accept that fraud covers the kind of secondary copyright infringement Mega has done.

RICO is based on copyright infringement too. Their company structures are a bit peculiar and their money-transfers documented. But the underlying crime is again a conspiracy to commit copyright infringement and thus, now only fraud. RICO is why MacBride keeps calling it Mega Conspiracy.

The maximum charges for both are plenty for extradition, which is why the judges so far have agreed that he is eligible for extradition. Most of the charges have been wiped from the extradition case with this ruling and the foundation under the court order and the rest of the charges are fundamentally weakened.
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Anonymous Coward, 21 Feb 2017 @ 9:34am

Re: Where could this lead?
Usually get-away drivers are convicted even though they did not rob the bank, which is more appropriate since Mega was actively promoting copyright infringement through an incentive program etc.

See how little it takes to fit a picture? Your picture is specious and so is my.

It is true that fraud is very selectively enforced. But usually the solution to selective enforcement is... non-selective enforcement and for a very fluffy concept like fraud that would be problematic. The solution there would be to reduce and clarify the scope of fraud, but that is not really for the criminal courts to do...
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JH, 21 Feb 2017 @ 9:37am

It's not "fraud", it's "conspiracy to defraud" -- a concept in the law of both NZ and the USA which is different and much much broader. Confusing the two is a mistake, and is spreading misunderstanding about the case.

The New Zealand Herald has the full text of the judgment with its article here. The statutory definition of "Conspiracy to defraud" can be found at paragraph 84 (on page 31), immediately followed by a review of case law concerning its application to copyright stretching back over the last 100 years.

Whether for good or bad, it's a pretty crushing and total demolition of the Dotcom team's arguments.
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Anonymous Coward, 21 Feb 2017 @ 9:42am

Re: For a moment here I thought
Maybe New Zealand wants to get rid of potential opposition by extraditing them away.
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Anonymous Coward, 21 Feb 2017 @ 9:57am

Re:
*The New Zealand Herald has the full text of the judgment with its article here. The statutory definition of "Conspiracy to defraud" can be found at paragraph 84 (on page 31), immediately followed by a review of case law concerning its application to copyright stretching back over the last 100 years.*

100 years of case law that Mike conveniently failed to disclose.
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ac42, 21 Feb 2017 @ 9:59am

iirc the fraud had something to do with the way their server file systems worked- de-duplication- such that when they removed dmca'd links, they where not actually removing the content they where hosting... don't see that mentioned anywhere here, and it seams important.
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Anonymous Coward, 21 Feb 2017 @ 10:00am

Respect Our Authoritay!
Crime and Punishment

Step 1: Arrest
Step 2: ???
Step 3: Jail
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Mike Masnick (profile), 21 Feb 2017 @ 10:05am

Re: Jurisdiction

So when he does get here seems like he should easily get his case dismissed since none of the 'crimes' took place on US soil.

On that point, the DOJ's argument is more solid: they were using computers hosted in the US. IF (big if) there was a crime committed, the jurisdictional claim in the US makes sense.
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Gwiz (profile), 21 Feb 2017 @ 10:25am

Re: Re: Jurisdiction

On that point, the DOJ's argument is more solid: they were using computers hosted in the US. IF (big if) there was a crime committed, the jurisdictional claim in the US makes sense.

Perhaps a little more solid, but still on shaky ground. As Larry Lessig pointed out in his affidavit:

The Superseding Indictment does discuss the existence of Megaupload servers in the United States.... But the mere presence of data servers in Virginia does not establish that direct infringement took place there. See, e.g., CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 549-50 (4th Cir. 2004) (holding that direct infringement under the civil standard requires more than “mere ownership of a machine used by others to make illegal copies” and that there “must be actual infringing conduct[.]”); Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 131-32 (2d Cir. 2008) (direct civil infringement requires “volitional conduct,” not mere ownership of device used by others to infringe).

The Superseding Indictment never states that any specific user, much less any of the criminal defendants, chose to upload or download any specific infringing work from within the United States.

https://assets.documentcloud.org/documents/2425017/lessigkimdotcomrothkenlaw.pdf

(emphasis mine)
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Shilling, 21 Feb 2017 @ 10:27am

Re: Re: Re: Re: Re: Re: Re:
If I use that logic then shouldn't his parents be brought to justice aswell. I assume they aided and abetted towards the crime by merely having a baby that committed these crimes in it's later life.

😛
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Anonymous Coward, 21 Feb 2017 @ 10:30am

Re: Re: Re: Re: Re:
In what context is scraping youtube illegal?
and does that mean programs such as gpodder are illegal?
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charliebrown (profile), 21 Feb 2017 @ 1:01pm

Re: Re: Such low standards of journalism!
So it's OK for Google to allow users to share files provided they remove infringing URLs when requested yet it's suddenly a criminal act when Dotcom does the same?

In America it is called "The Cloud" and it is legal but if it outside of America it is called a "file locker" and they are illegal. At least that is they way it seems to me.
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jupiterkansas (profile), 21 Feb 2017 @ 1:35pm

Re:
Did your "Techdirt Kim Dotcom" alert go off? Nobody's used that "Mike is a Google shill" attack in a while.
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Digitari, 21 Feb 2017 @ 2:40pm

Hmm, how odd
Seems like every argument that is being used to "convict" Dotcom was used to defend Hillary Clinton of not being a crook.....

Just an Observation is all.....
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JMT (profile), 21 Feb 2017 @ 3:14pm

Re: Such low standards of journalism!
"Because it's pretty trivial to think of cases where fraud charges are justified when copyright infringements is not."

Actually it's safe to say that most fraud cases have nothing to do with copyright. But in this case the USG's claim of fraud is entirely predicated on MegaUpload committing copyright infringement. Feel free to explain why you think fraud took place in this case if copyright infringement didn't.
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Eldakka (profile), 21 Feb 2017 @ 3:36pm

Re: Re: Re: Re: Re: Re: Re:

It just has to prove that somebody else committed a crime and Dotcom et al. aided and abetted them.

And the way it does that is by obtaining a conviction of that crime. If there is no conviction, then there has been no proven criminal act.
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Uriel-238 (profile), 21 Feb 2017 @ 3:44pm

Conspiracy...
This is what got me when I first read about the story (in WaPo), that Copyright Infringement didn't apply but Conspiracy did.

Conspiracy? Conspiracy to...???
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Anonymous Coward, 21 Feb 2017 @ 3:52pm

Article is very inaccurate in substantial matters
This is not entirely accurate, I've just read a good chunk of the judgment and my understanding of the reasoning of the judge is that even that "secondary" copyright infringement (really just copyright infringement) is not a criminal offense, it still is a civil one and willful conspiracy to commit copyright infringement (even not criminal in itself) gives rise to charges of a "conspiracy to defraud" which is then criminal.

So in essence, knowingly conspiring to violate copyright is what established criminality under conspiracy to defraud

The whole case therefore seems to rest on this one issue - was there intent/knowledge that they're breaking the law? Frustratingly this is not for the extradition court to decide, it is sufficient that the US alleges so (and prima facie evidence is sufficient).

What Kim's lawyers were relying on is that no other Act should apply for issues of copyright infringement other that the Copyright Act itself - judge disagreed with that and said that even when the actions can not give rise to criminal liability under Copyright Act, they do under Crimes Act when combined with willful conspiracy to commit copyright infringement (therefore conspiracy to defraud)

So this is not true:

As Dotcom's lawyers point out, that means this is no longer, as was claimed by the US, the "largest criminal copyright case" because copyright is officially no longer a part of it

copyright infringement is the basis for the charge of conspiracy to defraud - it is essential to it, all they're getting at that the criminal liability doesn't stem from the Copyright Act but from a different one (Crimes Act) but that does not mean copyright infringement is not at the heart of the issue

I root for Kim Dotcom to win this case, but dishonest (probably just misinformed) reporting doesn't help - please do your due diligence and correct the article according to the actual reasoning of the judge and facts of the matter whether you accept them or not.

Thanks Mike
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Anonymous Coward, 21 Feb 2017 @ 3:56pm

Re: Re: Some questions

Wire Fraud is based around their promises on their "Abuse Tools" not being kept...

If 'promises not being kept' is a criminal act then there a lot of politicians that should be in jail.
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Uriel-238 (profile), 21 Feb 2017 @ 3:59pm

"Made short work"
Judge Gilbert also made short work of [defense] argument that Megaupload was a neutral intermediary, and thus deserving of safe harbours, which limit an internet service's liability.

[citation needed]

It was established early on that Megaupload was responsive to takedown notices and cooperated with law enforcement, which more than fulfills what is required for safe harbor provisions of the DMCA.

So Gilbert would have to make a spectacular point in order to suddenly disqualify Megaupload and Dotcom from those safe harbor provisions, say, to provide a clear and convincing evidence that Megaupload was unresponsive to takedowns.

To Megaupload's credit, perhaps it was too cooperative with law enforcement considering that some of the files he was supposed to take down but didn't, he left in place at the request of law enforcement. And this behavior would later be used against him in these court proceedings.

Regardless, there's also strong indicators of bad faith by US law enforcement so yeah, Gilbert could disagree, or adjudicate against Dotcom based on spurious logic or whimsical opinion, but to make short work of DMCA safe harbor protections would actually require a logical miracle.
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Anonymous Coward, 21 Feb 2017 @ 4:02pm

Re: Re: Where could this lead?

Because that's totally like running a site with petabytes of obviously copyright content.

And because it's totally not obvious that cars are ever used in bank robberies.
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Anonymous Coward, 21 Feb 2017 @ 4:04pm

Re: Re: Where could this lead?

Mega was actively promoting copyright infringement

Citation needed.
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Anonymous Coward, 21 Feb 2017 @ 4:30pm

Re:
No, there are grounds for copyright infringement, just not for criminal liability for it under the Copyright Act.

The allegation that they've conspired to infringe copyright is what gives rise to criminal liability under Crimes Act - conspiracy to defraud (i.e. conspiracy to willfully infringe copyright to profit from it).

They've still needed to infringe copyright for the charges of conspiracy to defraud to stick, it doesn't work without infringement so it is still very central to the case.

This is the dual criminality - the same conduct can violate multiple acts and it's on the prosecutor to decide under which to prosecute (but not for both).

If there was copyright infringement and the defendants conspired to infringe in order to profit from it as the US alleges then it fits the definition of a conspiracy to defraud under the Crimes Act which is an extraditable offense - this is the actual reasoning of the judge whether we agree with it or not.

I would say that Kim's lawyers have a point that this could be applied to any ISP that is shown to violate the Copyright Act and slap the "conspiracy to defraud" charge on them that CA (not sure here if it is CA or another reasoning about criminalizing communication in general) was specifically designed to protect them from - that is a fair point.

But the reasoning of the judge is not so nonsensical as this article would lead you to believe.
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Anonymous Coward, 21 Feb 2017 @ 4:33pm

Re: Hmm, how odd
She lost, get over it.
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Anonymous Coward, 21 Feb 2017 @ 4:42pm

Re: Re:
Oracle Google case. Judge ordered Google to produce list of paid shills and ...bingo! Google listed mr masnick as their own shill paid via third party.
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Anonymous Coward, 21 Feb 2017 @ 4:53pm

Re: Re:
> I would say that Kim's lawyers have a point that this could be applied to any ISP that is shown to violate the Copyright Act and slap the "conspiracy to defraud" charge on them that CA (not sure here if it is CA or another reasoning about criminalizing communication in general) was specifically designed to protect them from - that is a fair point.

On second thought, there is an important distinction to be made here.

Civil liability would apply to an ISP that did not fulfill their duties under the Copyright Act, for example would not remove content for which a valid DMCA was received for whatever reason e.g. negligence.

There would be no way to slap a "conspiracy to defraud" charge on such an ISP absent evidence that this was done intentionally and in an organized manner in order to profit from such infringement - this is what civil liability under CA is intended for, to protect such ISP from criminal liability.

What US alleged is a step further and this is what gives rise to the conspiracy to defraud charges - namely that the infringement was done in a organized manner (conspiracy) and intentionally to profit from such conduct (fraud).

So this is THE distinction which decides whether such conduct is considered for civil or criminal prosecution and consequently whether it is extraditable or not.

Kim and other defendants are in a tough spot here as the US has intercepts where they joke about being pirates, upload copyrighted movies to megaupload (Kolk) and such - it does not matter whether this kind of "evidence" would survive an actual trial - the US needs to only demonstrate that is it sufficient prima facie evidence, which sadly it probably is.

After reviewing the judgment I have even less hope of it going Kim's way, it is not such an absurdly nonsensical case on the law as it is being presented as (although surely political and selective but even so, quite not so weak on the law it seems)
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Anonymous Coward, 21 Feb 2017 @ 5:37pm

Re: Re: Re:

Oracle Google case. Judge ordered Google to produce list of paid shills and ...bingo! Google listed mr masnick as their own shill paid via third party.

More lies.
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That One Guy (profile), 21 Feb 2017 @ 6:27pm

Re: Article is very inaccurate in substantial matters
So in essence, knowingly conspiring to violate copyright is what established criminality under conspiracy to defraud

Which strikes me as an absolutely absurd argument if true. Actually committing the copyright infringement only rises to the level of a civil offense. Planning on committing copyright infringement on the other hand is a criminal offense.

When planning on breaking the law carries a heftier penalty than actually breaking it, something has gone horribly wrong.
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That One Guy (profile), 21 Feb 2017 @ 6:32pm

Re: Re: Re:
As I've said before, reality is not quite as malleable as you seem to think it is. No matter how many times you lie, no matter how much you want what you say to be true, it just isn't going to happen.
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Anonymous Coward, 21 Feb 2017 @ 6:47pm

Re: Re: Re:
That's your proof? Christ you'd get laughed out of even a NZ copyright court.
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Anonymous Coward, 21 Feb 2017 @ 7:07pm

Re: Article is very inaccurate in substantial matters
Maybe you can start a blog and we can let Techdirt go the way of the dodo.

Here's to hoping.
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Anonymous Coward, 21 Feb 2017 @ 7:09pm

Re: Re: Article is very inaccurate in substantial matters
He just explained to you what conspiracy to defraud is. Try reading again.
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Anonymous Coward, 21 Feb 2017 @ 7:12pm

Re: Re: Re: Jurisdiction
Larry Lessig is a buffoon. Why in the world would you reference one of his delusional rants?
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Anonymous Coward, 21 Feb 2017 @ 7:38pm

Just extradite him for... erm... "digital terrorism".
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The Wanderer (profile), 21 Feb 2017 @ 8:17pm

Re: Re: Re: Re: Re: Re: Re: Re:
I think what he meant is that if that there is proof that a crime was committed, the government doesn't have to prove who committed it in order to be able to charge someone with aiding and abetting whoever did commit it.
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That One Guy (profile), 21 Feb 2017 @ 8:26pm

Re: Re: Re: Article is very inaccurate in substantial matters
"secondary" copyright infringement (really just copyright infringement) is not a criminal offense, it still is a civil one and willful conspiracy to commit copyright infringement (even not criminal in itself) gives rise to charges of a "conspiracy to defraud" which is then criminal.

Committing copyright infringement/'I am engaged in copyright infringement' = Civil offense.

Willful 'conspiracy' to commit copyright infringement/'I am going to commit copyright infringement with someone else' = Criminal offense.

What am I missing exactly? Both have, at their core, copyright infringement, yet adding one(or more) people to the equation jumps a civil offense to a criminal offense, and (seems to at least, otherwise why bother with the 'conspiracy to' label instead of saying 'They did X') remove the requirement to actually engage in the core crime.
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Anon E. Mous (profile), 21 Feb 2017 @ 10:12pm

Wow Hollywood's paid legal shills are out in full force to sorten the blow from the ruling in NZ.

Apparently that ruling scared the shit out of Hollywood enough to have all the "Anonymous' lawyers run to any publication that is saying the copyright portion of the US DOJ case against Dotcom isnt valid for extradition.

So imagine that all the anonymous "Lawyers" coming to say how anyone who reports that things aren't all rosey for Team Hollywood, isnt on fact about the ruling and what it means for Dotcom, yet they are here bashing away for reporting what Hollywood doesnt want anyone to know that has always been of much speculation of how Hollywood spun a civil case on copyright infringement into a criminal one.

I'm sure that the Hollywood lawyers will give us a subjective viewpoint.
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PaulT (profile), 22 Feb 2017 @ 12:42am

Re: Re: Re: "How do you hide behind journalism?"
So, just like hiding behind anonymity to make wild claims with no evidence and slander people because you decided you don't like them, only without the accountability or potential for people to expose the truth about you (if it is true and not the wild fantasy of a pathetic obsessive troll)?

Got it.
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PaulT (profile), 22 Feb 2017 @ 12:43am

Re: Re: Re:
...and the link to this evidence, that actually says what you claim it says and not easily debunked by reading a few facts is... where?

You never supply that. Why would that be?
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PaulT (profile), 22 Feb 2017 @ 12:47am

Re: Re:
"100 years of case law that Mike conveniently failed to disclose."

Very few news articles disclose a complete century of historical case law, especially those written on an opinion blog.

But, if this totally changes the issues Mike has with the case, why not furnish us with a description of what and why rather than bitching that he didn't write a complete history lesson for you?
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Wendy Cockcroft, 22 Feb 2017 @ 2:18am

Re: Re: Re: Re: Jurisdiction
Hey Sparky, when you're a professor we'll reference your delusional rants.
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The Wanderer (profile), 22 Feb 2017 @ 4:55am

Re: Re: Re: Re: Article is very inaccurate in substantial matters
I think that the idea is that "conspiring to commit a civil offense constitutes a criminal offense", regardless of what the civil offense is.

I also think that this is exactly the idea which you are objecting to as absurd, and I might well agree, after I spend the time to think it through fully - but its being absurd would not prevent it from being the law in some jurisdictions, and if it's the law in NZ (I haven't checked), then this ruling would make perfect sense.
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Karl (profile), 22 Feb 2017 @ 5:14am

The "fraud" part
For the curious, here's the most relevant part (IMO) of the ruling:

[84] Unlike the single word descriptions considered in Edwards, "larceny" and "embezzlement", there is no difficulty interpreting art II.16 of the Treaty. The wording of the provision is familiar and its meaning is clear. It closely followed the wording of s 257 of the Crimes Act at that time:

257 Conspiracy to defraud – Every one is liable to imprisonment for a term not exceeding five years who conspires with any other person by deceit or falsehood or other fraudulent means to defraud the public, or any person ascertained or unascertained, or to affect the public market price of stocks, funds, shares, merchandise, or anything else publicly sold, whether the deceit or falsehood or other fraudulent means would or would not amount to a false pretence as hereinbefore defined.

[85] Similar wording was used in other jurisdictions to capture this offence which merely codified the common law concept of conspiracy to defraud. The nature of the offence and its broad application were well understood. Such offending could occur in a potentially limitless variety of circumstances encompassing the entire spectrum of dishonest means. The object of the conspiracy need not be criminal; a conspiracy to commit a civil wrong would suffice. I can see no reason in principle why a conspiracy to defraud could not include a conspiracy to obtain money by dishonestly infringing copyright to the detriment of the copyright holders. While art II.16 does not mention copyright infringement or conspiracy to commit copyright infringement in those terms, equally it does not specify any of the other myriad of ways in which offenders could conspire to defraud the public or any person.

(Emphasis added.)
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Karl (profile), 22 Feb 2017 @ 5:15am

Re: The "fraud" part
Also - here's a link to the ruling:
https://assets.documentcloud.org/documents/3468456/Ortmann-amp-Ors-v-United-States-of-America .pdf
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That One Guy (profile), 22 Feb 2017 @ 5:53am

Re: Re: Re: Re: Re: Article is very inaccurate in substantial matters
Yeah, it's just so stupid. Planning a crime should not be considered a more serious offense that actually committing it, as that strikes me as practically thought-crime territory, and worse making the idea a more extreme crime than the execution of the idea.

It could very well be the case that the judge ruled correctly here, that 'conspiracy to defraud' raises a civil charge to criminal, but that doesn't make the logic and the law any less boneheaded and nonsensical.
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Gwiz (profile), 22 Feb 2017 @ 6:26am

Re: Re: Re: Re: Jurisdiction
Larry Lessig is a buffoon. Why in the world would you reference one of his delusional rants?

Mainly because this is an expert legal opinion submitted to the District Court in New Zealand by Dotcom's legal team.

It's telling that you appear have no counter-argument and are resorting to childish ad hominem attacks instead.
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Anonymous Coward, 22 Feb 2017 @ 6:54am

Re: Re: Re: Re: Jurisdiction
Talk about delusional.
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Anonymous Coward, 22 Feb 2017 @ 7:32am

Re: Re: Re: Some questions
If fraud was applied in each and every case where it may fit, half of the country would have been convicted at some point. The main obstacles to a fraud conviction is the evidence needed as proof of malicious intent, but in extradition cases it is a pretty low obstacle.

Political oppressive regimes often use fraud to convict opposition figures. Some corruption in politics is very advantageous to secure a few accounts of fraud, just to keep them from getting too uppety!
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Anonymous Coward, 22 Feb 2017 @ 9:38am

Re: Re: The "fraud" part
Thank you for your very interesting/enlightening post, Karl.
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Daniel Audy (profile), 22 Feb 2017 @ 11:10am

Re:
Statute of limitations apply to when charges can be *initiated* and does not expire while a case is being argued. The only way the statute of limitations could be relevant for this case is that the government would not be able to amend their complaint to include additional charges for which too much time has passed nor can they voluntarily dismiss the case and then recharge him with a virtually identical set of charges if they start losing.
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Daniel Audy (profile), 22 Feb 2017 @ 11:19am

Re: The "fraud" part
Interesting that by that section of the crimes act many corporate announcements and reports would be 'conspiracy to defraud' since they involve multiple people, are intended to effect the price of stocks, and are frequently dishonest about all the true details rather than just the ones that paint the company in the best light.
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Anonymous Coward, 22 Feb 2017 @ 4:48pm

Re: The "fraud" part
This sounds like it would apply to a lot of "marketing" and "advertising" if not for "selective enforcement". I guess it all depends on who you are.
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Karl (profile), 22 Feb 2017 @ 6:39pm

Re:

it came to light Google used you as paid shill

For the story behind this: https://www.techdirt.com/articles/20120824/12563220150/apparently-im-google-shill-i-didnt-even -know-it.shtml

The tl;dr version is this:

Techdirt is on a list of people that Google claimed, under oath, were not paid shills.

If you're wondering why Google would even have to produce such a list, read the linked article.
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Anonymous Coward, 22 Feb 2017 @ 7:48pm

This whole story is a horrible misreading of the case.

Copyright infringement is an illegal act un the US, where Kim's company offered access to material for a price. That may not be illegal in new Zealand, but it us certainly illegal to conduct such a business in the US.

It is not an extradition level offense, and nobody has pretended that it is. It is just the act that leads to other, more serious actions .

Trying to say this diminishes NZ law is silly. If anything, it has confirmed the legal situation of copyright. It does show, however, that you cannot location shop your residency to try to avoid the legal implications of business you do in another country or collection of countries.

That has sognificant implications for online business.
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Anonymous Coward, 23 Feb 2017 @ 4:46am

Re: Re: Re: Re: Re: Re: Article is very inaccurate in substantial matters
I think that the idea is that "conspiring to commit a civil offense constitutes a criminal offense", regardless of what the civil offense is.

Exactly this.

Planning a crime should not be considered a more serious offense that actually committing

Three points here:

1) "should not" and "actually is" are two different things, you may think the law is bad but that doesn't change the fact that it is law - and Kim claims he it right on the law (as the judge is required to rule on the law) so any arguments about morality/sensibility of said law do not come into this equation

2) There are many circumstances where planning to commit a crime is an aggravating issue - premeditated murder carries harsher punishment for example, I imagine such aggravating issues are quite regularly what decides the severity of offense

3) The distinction is not made merely on whether it was planner or not, there are other requirements for it to be classified a conspiracy to defraud:
- there needed to be actual conspiracy (1), meaning more people being aware and consciously working (2) toward the common goal to enrich themselves (3) by knowingly breaking the law (4), all this needs to be true so it's not only the matter of whether it was planned (could be simplified in that way but it doesn't tell the whole story)
In other words:

Planning a crime should not be considered a more serious offense that actually committing
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Anonymous Coward, 23 Feb 2017 @ 4:49am

Re: Re: Re: Re: Re: Re: Re: Article is very inaccurate in substantial matters
The last quote should be this, sorry:

What US alleged is a step further and this is what gives rise to the conspiracy to defraud charges - namely that the infringement was done in a organized manner (conspiracy) and intentionally to profit from such conduct (fraud).

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Anonymous Coward, 23 Feb 2017 @ 6:27pm

Re:
> Copyright infringement is an illegal act un the US, where Kim's company offered access to material for a price. That may not be illegal in new Zealand, but it us certainly illegal to conduct such a business in the US.

That would be just about every ISP in the US.
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Anonymous Coward, 24 Feb 2017 @ 12:33am

Re: Re: Re:
New Zealand is also known as Aotearoa which means Land of the Long White Cloud: https://en.wikipedia.org/wiki/Land_of_the_long_white_cloud
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