The High Court has delivered an emphatic victory to the Crown and the United States Government, agreeing with the District Court that Kim Dotcom is eligible for extradition to face criminal copyright and other charges.
In 2015, the District Court ruled the “Internet entrepreneur”, recording artist and erstwhile aspiring politician, Kim Dotcom, eligible to be extradited to the United States to face criminal charges.
Dotcom’s legal team appealed nearly every finding by the District Court Judge to the High Court. Justice Murray Gilbert presided over a lengthy appeal and his decision, nearly 400 pages long, has just been released.
Justice Gilbert found that each of Dotcom and his accused co-conspirators is eligible for extradition to Virginia to face each and every count in the United States Government’s indictment.
Justice Gilbert needed to identify whether the charges alleged against each of the accused amount to “extradition offences”.
To amount to an extradition offence, the alleged conduct described in each count must be offending specifically described in the 1970 NZ-US Extradition Treaty, or be deemed an extradition offence under the NZ-US Treaty by the relevant NZ statute. A “deemed extradition” offence is essentially an offence under New Zealand law involving an “organised criminal group” and punishable by four or more years in jail.
The copyright issue
Dotcom and his legal team have wrongly proclaimed that he won a “major victory” by convincing Justice Gilbert that the US Government allegations against Megaupload could not, if proved, amount to criminal copyright infringement under New Zealand law.
Those statements were media rhetoric. The Judge ruled emphatically that Dotcom may be extradited to face charges of criminal copyright conspiracy in the United States – on three different bases.
The key finding in the judgment is that count two in the indictment against Dotcom and his colleagues – conspiracy to commit copyright infringement – is an extradition offence because the conduct alleged in that count amounts to the former New Zealand crime of “conspiracy to defraud”, which is specifically mentioned in the NZ-US Treaty.
In New Zealand, as in every other Commonwealth country, a group of people may have conspired to commit fraud by colluding to undertake any one of various civil or criminal wrongs. Conspiracy to commit civil copyright infringement is one such qualifying wrong. As Justice Gilbert says in his judgment “this has been the case for over 100 years” in the United Kingdom, which has the same conspiracy offence that is incorporated in the NZ-US Treaty.
The point Dotcom and his legal team have clung to publicly is the Court’s finding that the alleged conduct described in indictment count two could not amount to criminal copyright infringement under s 131 of New Zealand’s Copyright Act 1994. The Judge said that when New Zealand amended the Copyright Act in 2008 to make a copyright holder’s communication right technology neutral, it expressly did not criminalise communication under s 131 despite requests from rights holders and their representatives to do so.
That finding is the only significant legal point on which the Judge disagreed with the United States, and in practical terms is inconsequential.
All the United States Government needed to do to establish eligibility for extradition was prove that the alleged Megaupload conspiracy would, if proved, amount to at least one conspiracy-based criminal offence in New Zealand punishable by four or more years in prison.
It doesn’t matter whether the charges that would be brought for that conduct in New Zealand are different in description or origin to the charges alleged in the United States: the key issue for the Court is whether the conduct is conspiracy-based serious criminal offending in this country too, irrespective of whether the applicable New Zealand offence is or is not a copyright-specific offence.
Dotcom has 20 days to seek leave to appeal to the Court of Appeal. The Court of Appeal may grant leave if it considers the case raises a matter of “significant public interest”. If the Court of Appeal grants leave, we also expect the US Government will cross-appeal Justice Gilbert’s finding on s 131 of the Copyright Act. And it is possible the case will head to the Supreme Court from there.