After quite some time, a New Zealand court has said that Kim Dotcom is eligible for extradition to the US — something he’s been fighting for over five years. But there’s a weird twist to the story. A key part of the argument that Dotcom’s lawyers have been making is that for extradition to the US, there needs to be “dual criminality” (you can hear Dotcom’s lawyer, Ira Rothken, discuss this on our podcast a few months back). And, the key “crime” that Dotcom is charged with involves secondary copyright infringement (i.e., creating a platform that others use to infringe). But, that’s a problem, as there’s no criminal secondary copyright infringement under New Zealand law (nor US law, but that’s a separate issue). So, here’s the twist. The court actually agreed that there’s no such thing under New Zealand law — and said that Dotcom can’t be extradited for copyright infringement. However, the court said that he can be extradited for “fraud” because there’s dual criminality there.
As Dotcom’s lawyers point out, that means this is no longer, as was claimed by the US, the “largest criminal copyright case” because copyright is officially no longer a part of it. But, if the copyright part is taken out… where’s the “fraud”? The whole claim of “fraud” is based entirely on the fact that Megaupload users infringed on copyrights. So if that’s not a crime, then, um… where’s the fraud?
I know that some will argue that it doesn’t really matter, and they’ll insist that what Dotcom and Megaupload did was “bad” — end of story. But we’re still supposed to live under the rule of law, and you don’t just get to throw people in jail because they’re “bad.” You have to prove they actually broke the law. But that’s a big problem here, because Megaupload didn’t violate copyright law. And if it didn’t do that… where’s the “fraud”? Dotcom’s lawyers will now try to appeal this part of the ruling, extending this legal fight even further. But it’s a bigger issue than that. If courts can wipe away safe harbor protections by service providers by hiding behind a “fraud” claim, there are no longer safe harbor protections:
The High Court has accepted that Parliament made a clear and deliberate decision not to criminalise this type of alleged conduct by internet service providers, 5 making them not responsible for the acts of their users. For the Court to then permit the same conduct to be categorised as a type of fraud in our view disrupts Parliament’s clear intent. The High Court decision means that Parliament’s intended protection for internet service providers is now illusory. That will be a concern for internet service providers and impact on everyone’s access to the internet.
That’s dangerous for free speech, it’s dangerous for innovation, and it’s dangerous for basic respect for the law.