Kim Dotcom and his legal team are seizing the moment of a meeting of attorneys general from the U.S., UK, Canada, Australia and New Zealand in Auckland to bring more attention to his legal fight with the U.S. government, which wants to extradite Dotcom from New Zealand and try him for copyright violations related to his now-defunct Megaupload venture. Robert Amsterdam, a high-profile lawyer known for human rights cases and the legal defense of political and business leaders who was appointed in January to help Dotcom’s case, has also now published a white paper detailing his take on Dotcom’s legal position.
But while Dotcom’s legal team attempts to take a higher ground, Dotcom is also taking a no-holds-barred approach as well. As Reuters reports, Dotcom is offering a prize of $500 the best film of the U.S. Attorney General, Eric Holder, while his Dotcom’s own Megaupload theme song plays in the background.
Holder is currently visiting Auckland, New Zealand, along with the AG’s from the UK, Dominic Grieve, and Canada, Rob Nicholson, who are meeting with Australia’s AG Mark Dreyfus and Christopher Finlayson of New Zealand. On the agenda is also a meeting with the Strategic Alliance Group, which brings together policing agencies from the five countries — the FBI; the Australian Federal Police; the UK’s Serious Organised Crime Agency; the New Zealand Police; and the Royal Canadian Mounted Police. During their meetings, the case of Dotcom, who is resident in New Zealand, will inevitably come up. Megaupload is accused of costing film studios and music labels some $500 million in missed revenues, and responsible for some $175 million in “criminal proceeds.” The criminal copyright case was first filed in January 2012, and an extradition hearing is set for this coming August.
While the Megaupload case continues, Dotcom has busied himself with the launch of Mega, a new file sharing site and cloud-storage service that debuted in January of this year. He’s also preparing an online music and entertainment service called MegaBox; in March, Dotcom said Megabox could launch in the next six months.
The white paper penned by Amsterdam and Ira P. Rothken, another member of Dotcom’s legal team as well as that of Megaupload, brings the focus of Dotcom’s defense down to three main points (the full white paper’s embedded below):
1. There is no provision in U.S. law for “secondary” copyright infringement in criminal law, in which the person operating the delivery method is prosecuted along with the individual posting material in violation of copyright. Previous cases have only concerned civil cases, Amsterdam and Rothken write.
2. Megaupload was also used for a lot of legitimate purposes, and so should therefore be protected under the so-called “Sony doctrine,” which accepts that any online service is subject to misuse.
3. They also claim that in fact Megaupload cooperated with copyright owners “millions of times” (over 15 million, they say) by taking down content when it was flagged by them, and that infringement was no wilful. “The company’s subjective belief that it was operating within the law (even if it turns out to have somehow been wrong in that regard) should by itself be enough to negate the criminal willfulness requirement, especially considering the novel nature of the prosecution’s legal theory.”
Whether or not any of this holds water, it’s also interesting to see that Dotcom is on some level looking to distance himself from those who have used Megaupload in the past.
This is a change in tactic from a person that up to now has appealed to those same people to continue to support him throughout all of his many legal and publicity battles against the likes of the MPAA and its leader Christopher Dodd. Mega’s CEO, Vikram Kumar, said earlier this month that Mega is on track to reach 6 million monthly users this month. That’s still a far cry from where Megaupload was at its peak, with 60 million registered users, 50 million daily visits and accounting for about 4% of total internet traffic (according to figures provided by Dotcom’s team).