The Megaupload Saga: An Introduction

POSTED BY Rick Shera
31 May 2012

posted in l@w.geek.nz | Intellectual Property | Copyright | Megaupload

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 DISCLOSURE OF INTEREST:  Since mid November 2012, I have been advising Mega Limited on its new cloud storage service, launched on 20 January 2013. 
 
Megaupload is described as the biggest copyright case in history.  The prosecution seeks to convict those it says have engaged in a worldwide criminal " Mega Conspiracy ... with estimated harm to copyright holders well in excess of US$500 million".
The issuing of a criminal indictment in the United States of America on 5 January 2012 against Megaupload Limited, its founder Kim Dotcom and other senior Megaupload colleagues, triggered co-ordinated actions in countries around the world, including New Zealand, where Dotcom lives with his family.
The take down of the Megaupload.com website without notice, seizure of servers in the United States hosting petabytes of both infringing and non-infringing material, seizure of millions of dollars of assets in various countries and freezing of bank accounts around the world was followed on 20 January 2012 by what Judge Harvey has described as a "police take-down" raid. A raid in which armed police, assisted by the FBI, arrested Kim Dotcom and colleagues Finn Batato, Mathias Ortmann and Bram Van Der Kolk at Dotcom's mansion north of Auckland.
Unfortunate timing for Messrs Batato, Ortmann and Van Der Kolk, who had just arrived in New Zealand for Dotcom's 38th birthday celebration planned for 21 January 2012. Their visit may well have prompted the United States and New Zealand authorities to move up the plans for the raid so that they could arrest Dotcom and colleagues in New Zealand, a country with an extradition treaty with the United States.
Since then, the prosecution has faced a barrage of legal manoeuvres in the United States and New Zealand, ranging from applications for relaxation of personal bail conditions to challenges to jurisdiction and to the validity of prosecution processes used to date. There is no sign of this letting up.
Keeping track of all these legal developments is difficult. So, I thought I'd endeavour to do so here. To make some sense of this though, you should understand there are already various concurrent actions in play:
  1. The US criminal prosecution initiated by the indictment. This has also spurred a separate application by a US based Megaupload user, Kyle Goodwin (acted for by the Electronic Freedom Foundation), to get his data back off the seized Megaupload servers.
  2. The search and seizure of various assets in New Zealand under the Mutual Assistance in Criminal Matters Act 1992 (MACMA).
  3. The application to extradite Dotcom, Batato, Ortmann and Van Der Kolk from New Zealand to the United States under the New Zealand Extradition Act 1999.  Related to this, although a bit of a sideshow to it in my view (albeit serious in constitutional terms), is the NZ Government Communications Security Bureau breach of its surveillance powers.
These various actions are related in some ways but are not completely interdependent, For example, even if Dotcom and colleagues resist personal extradition from New Zealand to the United States, they and the other accused could still be convicted in the United States pursuant to the indictment, using evidence collected in New Zealand under MACMA. Similarly, successful challenges to admissability of evidence collected under MACMA may not assist much in relation to the extradition. Of course, if the indictment falls over in the United States, then that will derail everything.

POSTED BY Rick Shera
31 May 2012

posted in l@w.geek.nzIntellectual PropertyCopyrightMegaupload

VIEWED 4714 TIMES

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