Dotcom makes the right call here

March 31st, 2014 at 7:39 am by David Farrar

Hamish Rutherford at Stuff reports:

says he does not want political intervention in his extradition case, even if it was to prevent him being handed over to US authorities.

The internet multi-millionaire is wanted by the US, who are seeking to have him extradited over charges of copyright infringement in relation to his Megaupload website, claiming he cost the entertainment industry hundreds of millions of dollars. 

Earlier this year Green Party co-leader Russel Norman said while he had made no promises to Dotcom, he did not believe there was a case for the German to be extradited and he did not support the process.

Dotcom is fighting extradition, but in an interview with Q&A screened this morning, said he was unhappy with suggestions of political interference.

“I was quite unhappy when some politicians suggested that they might interfere with the judicial process. If a court ultimately finds that I should be extradited, I don’t want any political interference, alright? I’m not asking for it.”

Excellent. That should be noted for the future.

While the Minister of Justice makes the final decision, the criteria for them are normally pretty narrow such as if the death penalty could be applied etc. So it is good to see Dotcom saying he doesn’t want the Minister to refuse his extradition if the New Zealand courts finds the extradition order is valid.

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70 Responses to “Dotcom makes the right call here”

  1. Dave_1924 (91 comments) says:

    TUI AD…….. KDC you big kidder you

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  2. Brian Smaller (3,990 comments) says:

    Yeah, and he doesn’t like pudding either.

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  3. redqueen (456 comments) says:

    Yeah bloody right…

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  4. thePeoplesFlag (175 comments) says:

    7.39am, and the first of DPF’s three Kim Dotcom posts for today is already up online. Around 11am, we can all look forward to hearing about Cameron Slater’s photographic expose of Kim Dotcoms wife’s underwear drawer.

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  5. tas (593 comments) says:

    I don’t understand why Dotcom needs to be extradited. Why can’t he be tried here?

    Extradition makes sense if the crime was physically committed in the US, but Dotcom was not in the US, nor was his website targetted specifically at the US.

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  6. Elaycee (4,301 comments) says:

    “I was quite unhappy when some politicians suggested that they might interfere with the judicial process. If a court ultimately finds that I should be extradited, I don’t want any political interference, alright? I’m not asking for it.”

    Bwahahahahaaaaaaaaaa…..

    If anyone seriously believes this bollocks, then send money – I have a bridge for sale.

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  7. bhudson (4,734 comments) says:

    It’s not what Dotcom says that is important – it’s what New Zealanders believe.

    The brief love affair is well over

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  8. duggledog (1,356 comments) says:

    People’s Flag or is it Phil Ure,

    We’ve got an interest in Augustus Gloop on this blog because unlike you, we can see the German for what he is. A crook who is desperate to avoid U.S. justice. (Whatever U.S. justice is, by the way, is not my concern).

    He’s been a naughty, naughty boy and his past is going to catch up with him, and those foolish politicians who have been trotting alongside him like adoring puppies are going to regret having anything to do with him me thinks.

    He’s got form for dishonesty here and abroad, is into Nazi shit, doesn’t pay his bills, is trying to mess with our political system with the racist Hadfield, confides in overseas visitors that Auckland is a bit shit whilst at the same time giving us a Fireworks Display… I mean come on man. Can’t you see him for what he is?

    He should have had the sense to fade into the fabric like Zaoui. You should too.

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  9. Tom Jackson (2,458 comments) says:

    I don’t understand why Dotcom needs to be extradited. Why can’t he be tried here?

    Because the entertainment industry are big political donors to the campaigns of Democrats. Nice to see NZ conservatives helping the global spread of Obamunism.

    If you’ve ever watched illegal streams or downloaded illegal TV, even if only because they wouldn’t show it here, you should be on Dotcom’s side.

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  10. MT_Tinman (2,990 comments) says:

    Me think large foreigner speak with forked tongue.

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  11. Pete George (22,827 comments) says:

    Andrew Little has also stated that Labour won’t negotiate on the extradition.

    The Labour Party doesn’t have any position or policy on the extradition proceedings concerning Kim Dotcom.

    It would be premature and constitutionally improper for any political party to express a view on how a ministerial discretion might be exercised in this regard before the courts have determined eligibility as to do so may give the appearance of trying to influence the court contrary to the principle of independence of the judiciary.

    If the court decides Mr Dotcom is eligible for extradition then the incumbent Minister of Justice must exercise a statutory discretion under the Extradition Act 1999 and the exercise of that discretion must conform to the longstanding requirements for ministerial discretion which include that it must take into account relevant considerations and discount irrelevant considerations and otherwise be rational.

    I do not think that the political requirements of assembling a new government constitute a relevant consideration in determining whether a person should be extradited.

    Mr Dotcom’s extradition, regardless of the status of the court proceedings at the time, will not be part of any negotiations on Labour’s part.

    http://yournz.org/2014/03/29/labour-will-not-negotiate-on-dotcoms-extradition/

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  12. tas (593 comments) says:

    Tom Jackson: I don’t like Dotcom, but I also don’t think this is proper. It sets the precedent that US laws apply in NZ. I see no good reason for why he can’t just be tried in NZ. If he has indeed broken copyright law, then he can be tried and punished in NZ. Does the US not think its case will hold up in NZ courts?

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  13. Nick R (497 comments) says:

    DPF – You keep getting this wrong. The grounds on which the Minister can refuse to surrender a person who is otherwise eligible for extradition are not narrow at all. Under section 30(3)(e), the Minister can refuse to extradite a person for any reason that seems like a good idea at the time. It is a wide open discretion.

    Please go and read the Extradition Act 1999 before you do another post on this. Otherwise people will start to wonder if you are getting it wrong on purpose.

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  14. tvb (4,203 comments) says:

    The death penalty seems to apply in the US for all sorts of cases so I assume the Minister of Justice would need an assurance that it will not apply before KDC gets extradited.

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  15. Keeping Stock (10,100 comments) says:

    Methinks MT_Tinman has nailed it :D

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  16. igm (1,413 comments) says:

    That statement has the credibility of “Tojo” Cunliffe’s CV! Just put the obese criminal slug on a plane NOW, and take Lecher also.

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  17. Paulus (2,501 comments) says:

    Like Liar Len I believe him.

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  18. Pete George (22,827 comments) says:

    Under section 30(3)(e), the Minister can refuse to extradite a person for any reason that seems like a good idea at the time. It is a wide open discretion.

    30 (3) The Minister may determine that the person may not be surrendered if-
    (e) for any other reason the Minister considers the person should not be surrendered.

    That does appear to be wide open to discretion. But in practice how often is this section exercised? Judith Collins:

    For requests from most countries, once the court has determined an individual is eligible for surrender, the matter is referred to me, as Minister of Justice, for the final decision on the surrender. As Minister I decide whether to issue a surrender order, taking into account humanitarian considerations and other factors contained in the Extradition Act.

    To date I have not made any decisions under this part of the Act.

    There will be substantial scrutiny of any Ministerial decision made. Any refusal to surrender Dotcom (if the courts decide he is eligible for surrender) would have to be thoroughly explained and justified for a National or Labour Minister of Justice or their credibility would be shot, as would New Zealand’s.

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  19. burt (7,807 comments) says:

    In other breaking news Cunliffe names the donors for his secret trust !

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  20. Ed Snack (1,737 comments) says:

    Tom Jackson has it right, the chances that KDC, whatever he deserves, will get a fair trial in the US is negligible. He is “deterrence” and political payback fodder. The main reason why the FBI and the US authorities do not want to release their “evidence” is that dispassionate examination will show it up for the sham that it is. Once they have KDC behind bars in the US the strength or weakness of the evidence is unimportant as political show trial rules will apply, and the process is a big part of the punishment.

    So he’s a slick (or maybe not so slick) conman, he’s made monkeys out of a lot of politicians (and that’s definitely to his credit), he has very questionable business ethics, and I can’t see any good reason to continue to allow him NZ Residency. But I don’t think that submitting him to a show trial in the US is by any stretch, justice.

    My solution would be to deprive him of his NZ residency, declare him persona non gratia, and deport him to Germany.

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  21. queenstfarmer (747 comments) says:

    @Nick R

    You are incorrect.

    DPF said “the criteria for them are normally pretty narrow such as if the death penalty could be applied etc”. He is entirely correct. The Act itself does not proscribe set criteria, but the law requires such discretions to be applied reasonably and based on relevant considerations. It is not “wide open” as you claim.

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  22. Nostalgia-NZ (4,910 comments) says:

    Nick R is onto it. The whole fanfare about political interference in the decision of any Minister of Immigration wasn’t going to be influenced in DC’s favour but there is nothing to say it won’t be influenced negatively against him as happened with Dalziel years ago. But as Nick points out there are a raft of reasons to stay a extradition order beyond the ‘death penalty’ being a probable result. In DC’s favour there may the ‘watering down’ of the charges to be of a less serious nature, there may be attempts to settle with the real plaintiffs (as there should be,) allowances made for DC’s contribution when becoming a resident here, his family situation, his work and so on.

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  23. queenstfarmer (747 comments) says:

    @Ed Snack

    “The main reason why the FBI and the US authorities do not want to release their “evidence” is that dispassionate examination will show it up for the sham that it is.

    No plaintiff is ever required to “release” all evidence outside of the usual court process, which has very detailed and long-standing rules about when & how evidence gets “released”.

    Here, the FBI released a summary because that is what the law requires for extradition. Our Supreme Court has upheld this.

    Why do you want to make a special exception for Dotcom alone?

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  24. burt (7,807 comments) says:

    queenstfarmer

    The Labour party has precedent putting parliament into urgency and passing retrospective validations covering an unknown amount of money over 14 years killing a standing court case in the process to stop dear leader from being accountable. Do you really think they wouldn’t let Dotcom stay in NZ if it was what made the difference between them being in government and being in opposition ?

    Show me another democratic government that has used parliament to kill a standing court case against the PM ?

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  25. jcuk (585 comments) says:

    It probably depends on the interpretation of the word ‘Wide’.

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  26. UglyTruth (3,989 comments) says:

    claiming he cost the entertainment industry hundreds of millions of dollars

    Puh-lease.

    The entertainment industry’s assessment of losses would make a mathematician blink.

    http://www.webpronews.com/riaa-lawsuit-against-limewire-for-72-trillion-shot-down-2012-05

    It was reported last May that now-defunct P2P file-sharing program LimeWire had settled with the Recording Industry Association of America for $105 million, though the RIAA wasn’t satisfied, and still demanded that the platform owed it $72 trillion in damages for copyright infringement. Judge Kimba Wood of the U.S. District Court for the Southern District of New York denied the ridiculous claim, which was just shy of all the money in the world.

    Judge Wood rightly called the claim “absurd,” and the $72 trillion number was derived from $150,000 for each time one of 11,000 songs were downloaded. Judge Wood added that the RIAA’s request “offends the canon that we should avoid endorsing statutory interpretations that would lead to absurd results,” adding, “If Plaintiffs were able to pursue a statutory damage theory based on the number of direct infringers per work, Defendants’ damages could reach into the trillions.”

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  27. peterwn (3,159 comments) says:

    Nick R – Even though the Immigration Act gives the Minister wide discretion re immigration, it is there to cover all sorts of diplomatic contingencies. Comity between nations requires that nations do not arbitrarily deny extradition requests so it would be wrong to deny extradition because some people in NZ dislike the USA or copyright law.

    tas – I have wondered about about whether a person should be extradited to a nation where he was not physically present at the time of offending. However he chose to do business in the USA, eg lease USA based servers for Megaupload so he must abide by USA law with respect to these activities, and if he does not, then he must face the consequence from USA authorities.

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  28. Nostalgia-NZ (4,910 comments) says:

    I recall that this Government, sometime in recent years, reached an arrangement with China over one of its citizens who had fled there after allegedly committing a murder in NZ. As there is no extradition arrangement in place the NZ authorities sought help from the Chinese who responded and tried the man in China, he was found guilty but the death penalty wasn’t applied because NZ had requested in their communications that if the man was found guilty the dp not be applied. In other words there is precedent for a number of options, unfortunately the DC situation has become too personalised to appear that pragmatism can be applied – though that could and should change, there should be no absolutes in dealing with this case which has been error ridden from the start.

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  29. jakejakejake (134 comments) says:

    I’m not sure he’d get a fair go from Collins after repeatedly embarrassing the government and befriending those who had her in tears over milk and Shi’s noodle.

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  30. Ed Snack (1,737 comments) says:

    QSF, because it is the only opportunity that anyone will get to see what the substance of the charges are, especially around the more serious money laundering and related items. It is an opportunity to look at the sham plea bargain mechanism; it’s not about KDC per se, for me it’s just the opportune case.

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  31. UglyTruth (3,989 comments) says:

    While the Minister of Justice makes the final decision,

    If Judith Collins gets to make the final decision on extradition then this country is in deep trouble. This dishonourable woman has a history of corrupt practice relating to fair use and should not trusted to give an opinon on the weather, let alone on issues of jursidiction.

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  32. Nostalgia-NZ (4,910 comments) says:

    ‘Why do you want to make a special exception for Dotcom alone?’

    Because there are special circumstances which don’t begin with this previous convictions because he was ‘forgiven’ those when his application for residency was approved. These include that he wasn’t in America when the alleged crimes were committed, they (the crimes) have the appearance of being civil, he may look to settle them, child born here, NZ employer and so on.

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  33. UglyTruth (3,989 comments) says:

    Comity between nations requires that nations do not arbitrarily deny extradition requests so it would be wrong to deny extradition because some people in NZ dislike the USA or copyright law.

    Comity requires nothing, it is based on good will, not any right.
    It’s not an issue of people disliking copyright law, it is an issue of using copyright law as a cloak for predatory action against people who have not committed a wrong.

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  34. mikenmild (10,708 comments) says:

    Yes Ugly, but that issue does not really come into play here – it will be for a US court to determine.

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  35. UglyTruth (3,989 comments) says:

    it will be for a US court to determine.

    Had some success in predicting the future, have you mikenmild?
    US courts have no jurisdiction over NZ residents, and there is good reason to believe that the case against Dotcom has been overstated.

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  36. mikenmild (10,708 comments) says:

    But US courts do have jurisdiction over people (sorry, persons) alleged to have committed crimes in the US, as is the case here.

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  37. Henry64 (80 comments) says:

    His actions would suggest otherwise. Talk is cheap.

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  38. igm (1,413 comments) says:

    UT: Judith Collins would have more integrity than your whole family collectively.

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  39. UglyTruth (3,989 comments) says:

    But US courts do have jurisdiction over people (sorry, persons) alleged to have committed crimes in the US, as is the case here.

    No, they don’t. An allegation does not establish jurisdiction.

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  40. UglyTruth (3,989 comments) says:

    UT: Judith Collins would have more integrity than your whole family collectively.

    igm, would someone of integrity block a lawful remedy for a wrong?
    Remember, she holds the title of minister of justice, not minister of self-serving nepotism.

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  41. tas (593 comments) says:

    Did megaupload have servers in the US? As far as I know, there was no physical presence in the US. No one seems to be able to give a reason why dotcom should be extradited, and not tried here or in Hong Kong ( where megaupload was based). I think dot com is a crook, but that doesn’t mean I need to support him being extradited on dubious grounds.

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  42. mikenmild (10,708 comments) says:

    tas
    Perhaps you and Ugly would benefit from reading the summary of evidence:
    http://www.theverge.com/2013/12/21/5233706/justice-department-reveals-evidence-against-kim-dotcom-and-megaupload

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  43. Fentex (867 comments) says:
    If a court ultimately finds that I should be extradited, I don’t want any political interference, alright? I’m not asking for it.”

    Excellent. That should be noted for the future.

    That’s either not excellent or a misunderstanding. The decision to extradite is a political one so either Dotcom misunderstands the process as so many do (our courts do not decide to extradite people, they inform the minster whose decision it is that the request for extradition is properly formed or not) and thinks it involves courts but not politicians, or he means that he doesn’t want political pressure brought to bear on the minister, which would seem a vain hope in any political process.

    I find it hard to believe he won’t be extradited as the request seems valid enough and I doubt our current government wishes to protect him, nor any likely to be elected soon, and absent any possibility of execution there’s little incontrovertible miscarriage of justice on the cards pressuring the minister to stop extradition.

    Our mistreatment of Dotcom in broadly ignoring his rights as our police played lapdogs to the U.S will be a problem not only easily ignored but also distinguished from his extradition by our government.

    While the Minister of Justice makes the final decision, the criteria for them are normally pretty narrow such as if the death penalty could be applied etc

    People will say that, but it isn’t true. The criteria is very broad and the minister could easily refuse if they pleased – for instance by asserting that as copyright infringement is not a criminal matter in NZ we would be uncomfortable extraditing someone on those grounds.

    It remains a political decision and I’m confident Dotcom simply doesn’t have the goodwill, nor represents a cause, sufficient to put a wedge between our government and the U.S.

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  44. UglyTruth (3,989 comments) says:

    From mikenmild’s link:

    Specifically, the DOJ says they “do not meet these criteria because they are willfully infringing copyrights themselves; … they have actual knowledge that the materials on their systems are infringing; … they receive a financial benefit directly attributable to the copyright-infringing activity; … they failed to terminate repeat infringers; and they have not removed, or disabled access to, known copyright-infringing material from servers they control.”

    The allegation that copyright infringement occurred does not necessarily mean that the copyright holders suffered any loss, since the term “copyright infringement” is used to describe fair use.

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  45. Fentex (867 comments) says:

    I don’t understand why Dotcom needs to be extradited. Why can’t he be tried here?

    What he is accused of (broadly speaking, I’m sure charges against him are padded out as much as the U.S attorneys imagination can accommodate) is not a crime in New Zealand, a simple ground for refusing extradition if the minster pleased – which I expect they will not as copyright infringement is not sufficient cause célèbre to arouse passionate defence against extradition and annoy the U.S over.

    The only reasons there really are to refuse extraditing him is if NZ was to take a contrarian stand to current international negotiations over copyright law (which our government doesn’t), a belief Dotcom will be railroaded and harshly treated (which is probably true, but our government isn’t going to care much about that) or to punish authority for it’s abuses in treating him by preventing a benefit from accruing afterward – but as our governments abuses are sufficiently isolated from his extradition that isn’t likely to happen.

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  46. UglyTruth (3,989 comments) says:

    I doubt our current government wishes to protect him

    It’s not really a case of the state protecting him because it would be in Dotcom’s interest for them to do nothing.

    In truth it is an issue of whether or not the state will be complicit in another predatory action by US interests.

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  47. metcalph (1,362 comments) says:

    The criteria is very broad and the minister could easily refuse if they pleased – for instance by asserting that as copyright infringement is not a criminal matter in NZ we would be uncomfortable extraditing someone on those grounds.

    Factually false. The copyright offenses Dotcom is being extradited for are criminal offenses here in New Zealand as well as the USA. If they were not criminal offenses here then Dotcom could not be extradited for them. Furthermore although the provision of the legislation that you quote indicates the minister has carte blanche to refuse an extradition for whatever reasons he sees fit, his grounds for doing so are constrained according to statutory rules of interpretation which require that an unspecified reason be similar and justifiable in relation to the enumerated rules. If the Minister were so stupid enough as to make a factually incorrect statement on fact or law in turning down the extradition or if he were to have acted improperly in making a decision, he would be subject to a judicial review (Chris Carter still has the burn marks from the last one).

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  48. Psycho Milt (2,262 comments) says:

    Dotcom makes the right call here

    Actually, Dotcom makes the wrong call here. He is wrong to say “If a court ultimately finds that I should be extradited…” because a court only decides whether an extradiction request is valid. The question of whether a person “should” be extradited is entirely for the Minister of Justice to make. If a person considers that “political interference,” their dispute is with the politicians who passed the Extradition Act 1999, not with any future Minister of Justice.

    While the Minister of Justice makes the final decision, the criteria for them are normally pretty narrow such as if the death penalty could be applied etc.

    The Act is quite explicit that a Minister can deny extradition for any reason they see fit, which you know very well because you’ve been schooled on it by lawyers the previous times you’ve peddled this particular piece of misinformation.

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  49. Pete George (22,827 comments) says:

    It remains a political decision

    No, it remains a decision for the courts first, and then a decision for the Minister of Justice (as Minister of Justice).

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  50. UglyTruth (3,989 comments) says:

    his grounds for doing so are constrained according to statutory rules of interpretation which require that an unspecified reason be similar and justifiable in relation to the enumerated rules

    It’s not quite as simple as that. Common law interpretation of statute also applies, in that Dotcom should not be extradited if doing so would be repugnant at law.

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  51. Barnsley Bill (975 comments) says:

    Things not looking too good for the spiritual leader of the Evade Extradition Party

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  52. tas (593 comments) says:

    Fentex: I don’t think that’s true. Copyright infringement is a crime here in NZ. I believe that if it weren’t a crime in NZ, he would be ineligible for extradition, as an extradition must be for an offense that is also a crime in NZ.

    I suspect that the reason for wanting to extradite him is that US laws are stacked against him more so than in NZ. It will be easier to prosecute him in the US and the penalties will be more severe. I don’t think that should be a valid reason to extradite.

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  53. Pete George (22,827 comments) says:

    I suspect that the reason for wanting to extradite him is that US…

    …chose to charge him, not us.

    It is obviously not easier to prosecute him in the US as they first have to extradite him.

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  54. tas (593 comments) says:

    milkenmild: Thanks for the link, but it doesn’t address my question. Why can’t Dotcom be tried in NZ? Why should he be tried in the US if he wasn’t in the US when the offending occured?

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  55. tas (593 comments) says:

    Pete George:

    It is obviously not easier to prosecute him in the US as they first have to extradite him.

    Don’t be silly. The US is happy for this to be dragged through courts in NZ and the US for years. The question is whether they get him a long prison term in the end and make an example of him. In the US he could be facing decades – maybe centuries – in prison, while in NZ he’d be a free man 10 years down the line.

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  56. Pete George (22,827 comments) says:

    The US is happy for this to be dragged through courts in NZ and the US for years.

    Really? How do you work that out?

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  57. Fentex (867 comments) says:

    Copyright infringement is a crime here in NZ. I believe that if it weren’t a crime in NZ, he would be ineligible for extradition, as an extradition must be for an offense that is also a crime in NZ.

    It’s only a criminal matter in NZ for certain specified acts Dotcom is not accused of (as far as anyone has said), otherwise it is a civil matter in NZ. In the U.S matters are different where under industry lobbying pressures criminal law has been increasingly introduced regarding intellectual privileges.

    Arguing over exactly what Dotcom is charged with is a bit of a problem, I’m not sure the accusations in detail are public. We all know the charges proceed from MegaUpload being accused of contributing to some approximately $500 Million in copyright infringement or possibly for directly selling that amount of copyrighted material directly, I’m not sure how it’s presented in legal papers.

    Can anyone direct us to a publication of the U.S’s request for Dotcoms extradition so we can all have more facts to point at? Far as I can find it seems the text of the request is not public.

    The best I can find is this account of the charges laid against him in the U.S…

    The individuals and two corporations – Megaupload Limited and Vestor Limited – were indicted by a grand jury in the Eastern District of Virginia on Jan. 5, 2012, and charged with engaging in a racketeering conspiracy, conspiring to commit copyright infringement, conspiring to commit money laundering and two substantive counts of criminal copyright infringement. The individuals each face a maximum penalty of 20 years in prison on the charge of conspiracy to commit racketeering, five years in prison on the charge of conspiracy to commit copyright infringement, 20 years in prison on the charge of conspiracy to commit money laundering and five years in prison on each of the substantive charges of criminal copyright infringement.

    The indictment alleges that the criminal enterprise is led by Kim Dotcom, aka Kim Schmitz and Kim Tim Jim Vestor, 37, a resident of both Hong Kong and New Zealand. Dotcom founded Megaupload Limited and is the director and sole shareholder of Vestor Limited, which has been used to hold his ownership interests in the Mega-affiliated sites.

    There is a way to commit criminal copyright infringement in NZ, but it’s not the same as in the U.S (though I suspect it constitutes a subset), and as I understand the business of MegaUpload it wasn’t what constitutes criminal copyright violations in New Zealand.

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  58. Nostalgia-NZ (4,910 comments) says:

    ‘Factually false. The copyright offenses Dotcom is being extradited for are criminal offenses here in New Zealand as well as the USA.’

    That’s a problem, without all the evidence revealed, and the prospect as Ed Shack says, that they are ‘sham’ charges invoked to promote a plea bargain, the Courts or the Minister will not know if there are also offences under our law at the time any decision is made. All that they (the Courts and Minister) will know is that there is an allegation that they are offences in NZ Law, in terms of peril – comparing a long sentence, arising from sham charges leading to a plea bargain, to the death penalty – raises more questions.

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  59. tas (593 comments) says:

    Pete George: Do you really think the US would prefer to try Dotcom in NZ?

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  60. Pete George (22,827 comments) says:

    tas – they can’t do that. They obviously want to try him in the US. We haven’t tried to try him in New Zealand.

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  61. metcalph (1,362 comments) says:

    That’s a problem, without all the evidence revealed, and the prospect as Ed Shack says, that they are ‘sham’ charges invoked to promote a plea bargain,

    None of this is an impediment to an extradition. The summary of evidence that has been given supports the charges laid and that is all that is necessary for an extradition.

    the Courts or the Minister will not know if there are also offences under our law at the time any decision is made

    Given that a prime means of stopping an extradition is to point out that what is claimed isn’t an offense here, Dotcom’s lawyers would have to be criminally incompetent if they were to let him be extradited for non-offenses here in New Zealand. Could you make less retarded arguments in the future?

    All that they (the Courts and Minister) will know is that there is an allegation that they are offences in NZ Law, in terms of peril – comparing a long sentence, arising from sham charges leading to a plea bargain, to the death penalty – raises more questions

    No evidence has been produced that these charges are sham charges, only your idiotic suggestions. Given the summary of evidence and the grand jury indictment, the probability that these charges are spurious are fanciful to the extreme.

    Lastly I note that for extraditions to the Oz or the UK, a summary of evidence isn’t even required. All the Oz or UK police have to do is show an extradition warrant for a extradition to proceed.

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  62. Fentex (867 comments) says:

    I believe that if it weren’t a crime in NZ, he would be ineligible for extradition, as an extradition must be for an offense that is also a crime in NZ.

    The problem with that is deciding that what he is accused of is a crime in NZ, and that isn’t obvious just because similar words occur in NZ and U.S statutes (their calling something criminal copyright infringement does not mean it would be in NZ).

    NZ extradition law requires;

    Any request for extradition from New Zealand must relate to an “extraditable offence” which is defined as an offence that:

    a) Carries a maximum penalty of not less than one year’s imprisonment in the requesting country; and

    b) Involves conduct that would be regarded as criminal had it occurred in New Zealand, and would have carried a similar penalty.

    c) Or is specified by the extradition treaty, if there is one.

    We don’t require a treaty.

    The problem with Dotcoms extradition in this regard is as a consequence of his alleged copyright infringement several other charges arise each of which satisfy the requirements on their own quite separate from a debate over whether the criminal copyright he is accused of is the same as criminal copyright infringement in NZ, so it’s a matter of context and choice exactly which charge or sum of charges one speaks to.

    One could decide that as all charges derive from the copyright infringement that they ought be dismissed and it alone considered, or one may decide that each charge ought be considered in isolation. Why you make one or the other of those choices is easily governed by your ambition for the decision you wish to make or the pressure on you regarding what is generally believed about them.

    If Dotcom was widely held to be a political refugee from abuse by immoral laws then there’d be pressure one way, if he is vilified in the press and comes to be seen as a scummy despicable sort trying to use our good offices to flee responsibility then the pressure in entirely different.

    Extradition is a political act, it can’t not be. And while Dotcom may amuse some he’s shady enough and has enough enemies in the wrong places (for his purposes) that middle NZ (where elections are won and lost) has no great interest in our government finding ways to protect him.

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  63. UglyTruth (3,989 comments) says:

    None of this is an impediment to an extradition.

    It’s an impediment because if the charges are a sham then it would be repugnant for Dotcom to be extradited.

    The summary of evidence that has been given supports the charges laid and that is all that is necessary for an extradition.

    Does the summary of charges distinguish between copyright violation causing loss and copyright violation as fair use?

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  64. Nostalgia-NZ (4,910 comments) says:

    ‘Given that a prime means of stopping an extradition is to point out that what is claimed isn’t an offense here, Dotcom’s lawyers would have to be criminally incompetent if they were to let him be extradited for non-offenses here in New Zealand. Could you make less retarded arguments in the future?.’

    How will they know if they don’t have the evidence, let alone convince the Courts or the Minister? No doubt part of the reason why they requested the information. Wake up dreamer, the horse goes before the cart.

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  65. duggledog (1,356 comments) says:

    I’d say the Americans would have a pretty good handle on NZ courts, judges, prison terms, reoffending etc. So, they won’t want our justice system having anything to do with his trial.

    The maximum he’d get here would be an ankle bracelet for six months, reduced to three months on appeal.

    Then, in a couple of years time and further appeals, for all convictions to be wiped and a big chunk of cash as compensation courtesy of the good old taxpayer.

    It’s how we do it here

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  66. Fentex (867 comments) says:

    distinguish between copyright violation causing loss and copyright violation as fair use?

    That us a false dichotomy, loss (or not) to copyright holders it is not what distinguishes fair use in U.S law.

    But if it were a consideration it would only serve to highlight problems in deciding if Dotcom had committed a crime by NZ standards as (unless there’ve been changes I haven’t noticed) NZ doesn’t have a fair use clause in our copyright law.

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  67. queenstfarmer (747 comments) says:

    Been offline for a while, there too many incorrect statements above (Fentex, Notstalgia-NZ, Ed Snack) for me to respond to individually, other than to say:

    1. Arguing about whether the criteria for extradition is met is pointless because that will be decided by a court. I’m on record as saying the court will easily find the criteria is met.

    2. Complaining about the prosecution not voluntarily dislosing its entire case before a trial is even set is also a waste of time. It’s never been the requirement, and our Supreme Court has quite correctly ruled that Dotcom has no right to demand all the evidence.

    3. Likewise, arguing about what copyright laws “should be” is a waste of time because our courts (thankfully) have to apply the actual law.

    So the only question is whether the Government the politically intervenes to refuse / deny / stymie an extradition that meets all the applicable criteria. Thankfully, Dotcom has already answered that and said he doesn’t want that to happen.

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  68. UglyTruth (3,989 comments) says:

    “Does the summary of charges distinguish between copyright violation causing loss and copyright violation as fair use?”

    That us a false dichotomy

    No it isn’t, it is a simple question. If it were a false dichotomy then there be a third option, but there is no third option because fair use doesn’t cause a loss.

    I’m assuming that the answer is that no distinction is made.

    loss (or not) to copyright holders it is not what distinguishes fair use in U.S law.

    The US doctrine of fair use isn’t part of NZ law.

    But if it were a consideration it would only serve to highlight problems in deciding if Dotcom had committed a crime by NZ standards as (unless there’ve been changes I haven’t noticed) NZ doesn’t have a fair use clause in our copyright law.

    Fair use has relevance in determining the extent of any wrong committed by DotCom. NZ copyright law may be incapable of making this determination.

    The US copyright industry has a history of making absurd claims of damages. The wrong – if it exists – could conceivably result in a penalty that falls below the extradition threshold.

    If the wrong resulted in a penalty that exceed the threshold, there remains the problem of putting Dotcom at risk of predatory action, since US fair use doctrine is likely to prescribe damages for cases in which no loss was caused by the copyright infringement.

    A possible remedy could be to refer the action back to the US for disambiguation regarding evidence of loss, and use this to determine if extradition is appropriate.

    If this is unacceptable to the US then the application of the golden rule of statutory interpretation should be applied to the relevant language, which would imply that the original raid was illegal. The only alternative is overt conspiracy with the US.

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  69. UglyTruth (3,989 comments) says:

    loss (or not) to copyright holders it is not what distinguishes fair use in U.S law.

    No, the US doctrine is not as straightforward as that:

    http://www.copyright.gov/fls/fl102.html

    The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

    Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research.

    Section 107

    Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.
    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

    http://www.law.cornell.edu/uscode/text/17/107

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  70. Smokethehive (3 comments) says:

    This “The distinction between what is fair use and what is infringement in a particular case” – Morals in my book trump the letter of the law. Guy a straight out thief !

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