I'm not sure that I'd hold my breath for the success of Megaupload's motion to dismiss copyright-infringement charges in the United States. Just because the company has no presence in the U.S. and hasn't been formally served with papers is no reason to think that American judges are likely to concede there are limits to the authority of prosecutors doing the bidding of the music and movie industries. More likely to trip up the case against the file-sharing company are serious legal missteps by police and prosecutors in New Zealand, and the growing popularity there of eccentric company-chief, Kim Dotcom.
The case against Megaupload has been a little strange from the beginning. As the New Zealand Herald points out, "the company had agreements allowing major copyright owners direct access to its system to take down any suspect files. Companies which had free access to remove files included the Recording Industry Association of America, Disney, Warner Brothers and Microsoft." Which is to say, the company wasn't exactly hiding in the shadows. But Megaupload was, in technical terms, humongous, as file-sharing services go. That made it a better choice than Western Union for sending a message. And so police in New Zealand, Holland and Hong Kong staged armed raids on a company that made its money storing information — raids the over-the-topness of which might best be depicted by security footage that New Zealand police have ... err ... misplaced. Says Ars Technica:
Since January, the Dotcom legal team has asked for the footage, but police refused, until finally the agency agreed that an IT expert for DotCom could come and collect a copy of the footage. When the IT expert arrived at the police station, he found the server completely disassembled, and authorities said they could not reassemble it or give him any footage. Now, no one outside the police agency is sure the footage still exists.
That has the local media asking questions, such as a report on 3News that had police ducking, weaving and looking decidedly sleazy.
Journalists aren't the only New Zealanders asking tough questions. The country's high court was curious as to why prosecutors seized Kim Dotcom's assets even though they knew their move was illegal. According to the New Zealand Herald:
Crown lawyers acting for the United States knew before seizing Kim Dotcom's fortune and property that they were using an unlawful court order.
The High Court file has revealed Crown prosecutor Anne Toohey realised there was a paperwork problem on the morning of the January raid.
The Solicitor-General at the time, David Collins, was alerted to the error but told the mistake didn't alter the lawful nature of the order allowing the seizure of Dotcom's wealth.
The advice was wrong - Justice Judith Potter later ruled the restraining order "null and void" and having "no legal effect".
The result left Dotcom without the chance to have his day in court or the money to fund a fight against claims he was behind as international criminal conspiracy in copyright infringement.
The prosecution won more non-fans among the judiciary with revelations that the FBI had been allowed to leave the country with evidence that belonged to local authorities. New Zealand Herald again:
The Government's lawyers have been ordered to explain how the FBI left the country with evidence in the Kim Dotcom case meant to be kept in "secure custody" by New Zealand police.
High Court chief judge Helen Winkelmann has told the Attorney-General's lawyer, Mike Ruffin, he has until Monday to explain why FBI agents were allowed to take 135 cloned computer and data storage devices to the United States.
The government was subsequently ordered to turn over all evidence to Dotcom's defense team.
With Kiwi cops and prosecutors looking and acting like the FBI's bitches, it's little surprise that "man mountain German" Kim Dotcom has become something of a star in his adopted country. Reports Stuff.co.nz:
It seems improbable that there could be so much support for a man who has a list of crimes attached to his name – hacking, computer fraud, handling stolen goods, embezzlement – and now faces copyright infringement charges for which he could face up to 50 years in prison.
Public relations specialist Felicity Anderson said Dotcom has carefully turned the New Zealand public around.
"I think people thought he was just a big rich wanker. Now they are looking at him, and thinking actually 'I quite like him telling the establishment to get stuffed'," Anderson said. She believes Dotcom quickly and shrewdly worked out Kiwis are likely to react to feelings of injustice.
Dotcom has an extradition hearing coming up in August to determine whether he'll be bundled off from New Zealand to the tender mercies of U.S. authorities. Whatever the outcome of the case in American courts, U.S. officials might not want to get too confident that the man-mountain German so closely associated with Megaupload will be dropping by for a visit.