Last December a New Zealand District Court ruled that Kim Dotcom and his colleagues can be sent to the United States to face criminal charges.
This decision was immediately appealed and over the past weeks there’s been a lengthy series of appeal hearings at New Zealand’s High Court.
Represented by a team of lawyers, Kim Dotcom and his fellow Megaupload defendants have argued that the New Zealand District Court failed to give them a fair hearing. The entire case was live-streamed on YouTube and earlier today the final arguments were presented.
Kim Dotcom’s defense lawyer Ron Mansfield repeated several claims that have been discussed over the past several weeks. He argues that the lower court made critical errors in its final ruling and that crucial evidence was overlooked or not considered at all.
One of the main arguments of the United States government is that Megaupload would only disable a URL when it received a takedown notice, not the underlying file. As a result of the deduplication technology it employed, this meant that the file could still be accessed under different URLs.
However, according to Dotcom’s defense, it was a standard practice in the Internet service provider industry to remove just the URL, something copyright holders were apparently well aware of.
“How can a copyright holder have been reasonably expecting Megaupload to take down files in response to takedown notices specifying URLs if the copyright holders knew that the prevailing industry practice was to prevent access by removing the URL, not the file,” Mansfield said.
“The use of deduplication technology by Internet service providers […] was not a secret. It was widespread within the industry and well-known both by the Internet service provider industry and the content industry,” he added.
While various stakeholders disagree on what services such as Megaupload are required to do under the DMCA, removing the URLs only was not something unique to Megaupload.
In addition, Mansfield previously cited the “Dancing Baby” case where it was held that copyright holders should consider fair use before requesting a takedown. This means that removing an underlying file down may be too broad, as fair use isn’t considered for all URLs.
Overall the defense believes that Megaupload and its employees enjoy safe harbor protection and can’t be held criminally liable for copyright infringement. As such, there is no extraditable offense.
Mr. Mansfield closes his argument by highlighting the unprecedented nature of this case, which has been ongoing for nearly five years.
“Today marks 1730 days since 20 January 2012, when the New Zealand police effectively dropped from the sky and conducted the search of Mr. Dotcom’s home. And at that point they then sought about arresting him. The officers were disguised, armed and left him and his family effectively bereft of assets and income,” Mansfield said.
Mansfield describes the U.S. litigation strategy as an aggressive one and argues that the failure to accept and review critical evidence deprived Kim Dotcom of a fair trial.
“Sportsmanship in a court of law is called fairness and the United States conduct has in our submission both been unlawful and unreasonable and the tactics they have adopted have been unfair and prevented Mr. Dotcom and the other appellants from having the benefit of a fair hearing.”
“He simply has not had a fair go. And we do ask that your honor considers the submissions which have been presented, because, in effect, after that period of time, after 1730 days it would be the first time there is a meaningful judicial assessment of the facts and of the submissions presented,” Mansfield concluded.
While the primary hearings are over, there are still some smaller details to work out and it is expected to take several weeks before New Zealand High Court reaches a decision. However, Kim Dotcom is confident that he’s on the winning site and congratulated his lawyers.
“I like to thank my legal team for an excellent job. My 5 children will grow up around their father thanks to your brilliance. I’m grateful,” Dotcom posted on Twitter a few hours ago.
Whatever the outcome, it’s unlikely that the case will stop at the High Court. Given the gravity of the case, both the United States and the Megaupload defendants are likely to take it all the way to the Supreme Court if the decision doesn’t go their way.