Judge's Opinion On Kim Dotcom Shows An Unfortunate Willingness To Ignore Context

Last night, we posted the news that a judge in New Zealand had ruled that Kim Dotcom and his colleagues were extraditable. Dotcom is appealing the decision, so it's not over yet. Soon after the decision was announced, the full ruling by Judge Nevin Dawson was released. It's a staggering 271 pages, and I've spent a good chunk of today reading it over. Some of it is more compelling than others, and there may even be enough to support the ruling. However, what troubles me is how frequently Judge Dawson appears to totally, without question, accept the US government's arguments (as relayed by New Zealand prosecutors), despite the fact that many of them are clearly misleading at best, or downright incorrect. It would take too long to go point by point through the whole thing, but I did want to highlight a few points that I found concerning. The key issue in the extradition fight is whether or not copyright infringement is an extraditable offense. Under the treaty between the US and New Zealand, it is not considered an extraditable offense, which is why a variety of other "conspiracy" charges are piled on in the complaint against Dotcom. Yet, Judge Dawson basically tosses much of that out, arguing that "conspiracy to defraud" is an extraditable offense, and copyright infringement can be a conspiracy to defraud. As Dotcom's lawyers noted yesterday, this would basically write out the fact that copyright is not an extraditable offense. However, almost all of this "conspiracy to defraud," as well as the other issues that the court finds extraditable (such as "money laundering") are all based on the claims of the DOJ, many of which were presented ridiculously out of context by the DOJ in the original indictment, but which Judge Dawson takes as perfectly accurate, without considering alternative explanations. For example, there's the question of whether or not Megaupload had its own search engine. As we noted in the original indictment, this is particularly ridiculous. A key reason why the original Napster got shut down was because it had a search engine, which the court used to argue that it was more involved in the infringement. Thus, there's a strong argument for why a site should not have a search engine, in order to make it harder to find infringing materials. Yet, the DOJ argued that this was part of the "conspiracy" and that it showed that Megaupload was trying to hide the infringing activities from law enforcement. Damned if you do, damned if you don't. But Judge Dawson flat out accepted the DOJ's argument. Judge Dawson quotes a Skype discussion between two of Dotcom's colleagues, Mathias Ortmann and Bram Van Der Kolk, in which Ortmann notes that "searchability is dangerous and will kill us." And the judge concludes:

There was so much infringing content on the sites that its presence had to be disguised and made non-searchable. Traffic flowed to this content through third party sites.

That's one interpretation. A more plausible explanation could be that these guys didn't want to make their site easy to use for infringement and thus didn't make the material searchable. Instead, that's used against them. Elsewhere, the judge uses a discussion between Kim Dotcom and Ortmann about how to make sure the service is "invulnerable" to legal challenges as proof that they "appreciated that Mega operated unlawfully and was at risk of being shut down by a court." Of course, a perfectly reasonable alternative explanation is that their discussion was on how to make sure they were not unlawful and not at risk of being shut down by a court. There are plenty of business discussions that tons of businesses could have like this that, devoid of context, could be presented in this misleading way. Any time any two executives from a business were to discuss specifics of making sure their business is legal could then be misrepresented as evidence that they "knew it operated unlawfully and was at risk of being shut down by a court." There are lots of other examples of this, including conversations between basically all of the defendants discussing (and sometimes joking about) the possibility of lawsuits (most of which they assume would be civil lawsuits). But just because you think you might get sued is hardly evidence of a conspiracy or belief that what you're doing is illegal. I've had many discussions with our lawyers about doing things to protect ourselves from getting sued. That doesn't mean I believe I'm operating illegally. It means I understand the legal environment we operate in, where lawsuits happen frequently, and I'd like to minimize the risk. But in