When Megaupload was shut down by United States authorities in 2012, along with the arrest of its operators in New Zealand, few people anticipated the scale of the legal battle that would ensue.
After countless legal processes and procedures, every attempt to force Kim Dotcom and colleagues Mathias Ortmann, Finn Batato, and Bram van der Kolk into submission have been met with resistance.
Perhaps the most important battle – to have the quartet sent to the US to face charges including copyright infringement, racketeering, and money laundering – is still underway and being fiercely contested. Comments made in the Wellington Supreme Court today indicate that the process is moving at glacial pace.
David Boldt, a lawyer for the United States, told the Court that the extradition battle “might almost be at half-time”, opening up the potential for more years of struggle.
Back in July, after the case had traveled through the District Court and High Court, New Zealand’s Court of Appeal ruled that Dotcom and his former colleagues are indeed eligible for extradition to the United States.
“We are satisfied that New Zealand law permits extradition for copyright infringement in the circumstances of this case. That is so although we have held, contrary to previous authority, that double criminality is required in extradition between New Zealand and the United States. The appellants are accused of conduct that, if proved, would establish extradition offences in New Zealand law,” the ruling reads.
“A criminal offense is committed by anyone who knowingly possesses an infringing digital copy of a protected work in the course of business with a view to committing any act, such as online dissemination, that infringes the copyright.”
Dotcom and his co-accused hope the Supreme Court will come to a different conclusion but according to RNZ, Boldt told the Supreme Court today that there is no direct right of appeal in Dotcom’s criminal case, since in 2012, when the case began, there was no eligibility for a third appeal in extradition cases.
“You have said before ‘if it’s not mentioned we are simply unable to say we have jurisdiction’. That contrasts with the civil jurisdiction where there is a right of appeal,” Boldt told the Court.
Of course, lawyers for the Megaupload quartet disagree.
Grant Illingworth, appearing for co-accused Bram Van der Kolk and Matthias Ortmann, said Boldt’s position is unsupported, adding that New Zealand’s Bill of Rights states that people cannot be extradited “except on grounds prescribed by law”. Lawyers for Dotcom and Batato supported Illingworth’s submissions.
Even if the US Government gets its way and the appeal is not accepted by the Supreme Court, the so-called “surrender” phase could take years. After the District Court decides whether someone can be extradited, it’s for New Zealand’s Minister of Justice to make the final decision. That, Boldt said, could lead to yet more processes and debate.