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Dotcom lawyer makes new bid to have case thrown out, this time citing delays

UPDATE Oct 11: As he flagged yesterday, Kim Dotcom's US lawyer has filed a renewed motion to dismiss the US government case against Megaupload and its senior executives.

Ira Rothken's appeal argues prosecutors have violated his client's right to due process by failing to deliver its indictment for more than nine months.

The motion was filed in the Eastern District Court of Virginia, the US state where Megaupload's servers were hosted.

In a decision released yesterday (see below), US District Judge Liam O'Grady threw out an appeal to dismiss the case based on the fact an indictment had to be delivered to a US address (Megaupload is incorporated in Hong Kong, while Mr Dotcom is lives in New Zealand), but indicated delays in the case offered possible ground for appeal.

RAW DATA: Renewal of Request for Dismissal (PDF)

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Dotcom lawyer fails to get US govt's Megaupload case thrown out

Oct 10: A bid to get the US government's case against Megaupload thrown out on a technicality has failed.

US District Judge Liam O'Grady has ruled there was no procedural error in prosecutors' inability to serve papers in the United States to Megaupload executives.

Kim Dotcom's lawyer, Ira Rothken, had argued US law requires a corporate criminal indictment be sent to a company's last known address in the US. 

But Megaupload is incorporated Hong Kong, while its CEO, Kim Dotcom, is resident in New Zealand.

However, Judge O'Grady says prosecutors can officially indict Kim Dotcom and his co-accused Megaupload executives after they have been extradited to the US.

"To this court's knowledge, no court has ever dismissed an indictment for failure to meet Rule 4's secondary mailing requirement," the judge wrote in his ruling, made on Friday and posted online today.

He says Congress had not intended to create a loophoole that would leave foreign corporations outside the reach of US law.

Mr Dotcom's extradition hearing is scheduled for March next year.

Mr Rothken told Reuters that while the judgment went against his client, it also raises the possibility the Megaupload case could be dismissed on other grounds, including delays which have denied Mr Dotcom due process.

He intends to file a request for the case to be dismissed on those grounds.

Comments and questions
23

"He says Congress had not intended to create a loophoole that would leave foreign corporations outside the reach of US law". - Now that is one very scarey statement. A Judge proferred an opinion, not based on law, but simply opinion. And they expect us to hand KDC to people like this?? How much of the world does the US wish to own?

OH??
You believe foreign corporations can trade with NZ property but be "outside" NZ law?

The judge gave an opinion as the basis for his ruling. Think about it.

There is nothing remarkable in this; - he is merely interpreting the statute.

Has the US considered that Dotcom might be concealing WMD up his jumper? They could invade NZ!

He's clearly concealing a Weapon of Mass Digestion inside his jumper.

Don't tempt them. The idiots are going into Iran soon on an even more suspect pretense.

Fascinating game being played out there and here, but I don't think the average Yank fully appreciates the sense of injustice joe public Kiwi feels as to how our system conducted (at Hollywood's behest) itself against Dotcom.

There has been a lot of coverage of this case on Reddit.com, but then the site's demographic tends to be on the younger, fairly well educated, liberal-leaning side of things.

As a "joe public Kiwi", I don't care what happens to Kim Dotcom, and I don't see any sense of injustice. Our system has not conducted itself against Dotcom at Hollywood's behest. For goodness sake grow up and try to look at this as an adult.

Are you blind, stupid, or both?

I am neither, blind, stupid, nor both. I just am not taken in by this convicted German fraudster who should never have been granted NZ residency in the first place. Simon Power had it right when he vetoed the purchase of the mansion Dotcom is renting on the grounds that he was not of sufficeint good character to be allowed tp purchase NZ property. Dotcom has contributed nothing to NZ, and our "soft" judges are even allowing him to use part of the $10 million he "invested" here to buy his NZ residency to pay his legal bills. How spending millions on high paid NZ lawyers benefits NZ is beyond me, but then all our judges were once high paid lawyers.

The isuue here is not Dotcom but the perceived manipulation of Law in the US & NZ and locally the law breaking by Police/GCHB/Politicians and if this perception even if wrong gives Joe Public Kiwi the trust necessary and demanded in a "democratic country". My perception of the US judge is that he is biased in favour of the public US position

Not so much a case of extending reach beyond US boundaries (though US has long done this too), because NZ and most other countries do likewise; if foreign national commits NZ crime we seek to extradite and prosecute when/if they arrive here.

The real question is what KD's legal team was thinking. Did they really think they had a chance with that argument?

Even with access to unlimited funds, it's still almost always best not to pursue avenues with no real prospect of success, nor those even with good prospects of success but which don't sufficiently advance the main game.

The 'throw money at everything' approach can sometimes distract legal strategists and lawyers from the primary goal; if someone insists on giving money away, it would be better all round (even for the lawyers who no doubt want their client to succeed) to just give that part to charity and keep the legal team focused on what really counts.

Or maybe ask the PR strategist to help direct some of the legal firepower; they seem to be doing pretty well on that front.

I am greatly impressed by the inter-and intra-governmental ineptitude which has turned an over-affluent (alleged) web pirate into some kind of hero. He's still someone who facilitated the imposition of internet communism across intellectual and artistic property, without the consent of the property owners - but now, people who used to think that made him a baddy are lauding him as a symbol of protest against state snooping. Your enemy's enemy may be a useful ally, but be wary of calling him a friend.

Did you miss the much publicised access he provided to Warner etc to remove copyrighted material. Pirate? Not so. A scapegoat? Yes.

Scapegoat, no. Proprietor of an electronic stolen goods warehouse where he paid people to stash more stuff, yes. If he has done nothing wrong, why does he fear a hearing to clear his name?

The leaked report from the International Federation of the Phonographic Industry (IFPI) in the United States shows that Megaupload was far from the worst offender. in facted US based companies of far worse crimes.

seem like the US Govt justification appears to be corrupt.

No kidding? They invented corruption.

Look out John Morrison - they'll be flying Predators over here soon enough.

I have this vision of John Morrison being a doppelganger of that dude in the movie The Fukers, where he is ex CIA calling in the shots from his secret lair in the house truck.

Dotcom's lawyers will, publicly, pack a sad. But, beneath the veneer of disappointment, they will be thrilled. Ka-ching!!

If anyone bothers to actually reads the U.S indictment , they would realize the majority of the statements relate to the business model used by megaupload, implying that a business model that makes large profits is innately illegal, earning tens of millions in advertizing revenue is somehow illegal. They way I read it, if you make a lot of money, your a target!

You have to get down to statement 25 in the list to actually get to any legally culpable allegation, and they imply that they have hard evidence of acts by staff which allowed copyright infringing material to continue on to be accessed by Megauploads customers, even after being removed using the tools provided to copyright owners.
Further statements allege that additional measures by staff were taken to ensure copyright material remained on the hosts rather than being deleted as expected under the DMCA agreement.

These are all very very general allegations against the megaupload entity and do not differentiate the actions of directors and staff and volunteers within the context of the megaupload entity.

I expect Kim.com to be extradited to the USA, but I don't expect the directors including Kim.com will actually be locked up for the acts of the staff, volunteers and users in relation to copyright infringement without setting a precedent which would leave the door open to take action against other services providers such as youtube, cnet, rapidshare, sourceforge, etc.

The entertainment industry can continue to try and protect their property with restricting rules and regulation, persecuting people they perceive as threats to their profit bases, or they can evolve with the technology.

Technology has helped the entertainment industry, reducing distribution costs liabilities and enabling them to reach more customers quicker. Why they cant pass on these savings and bring more entertainment to more people, I don't know. They should take a long hard look at themselves and ask themselves, who are they really targeting, IMO, they are targeting themselves in the long run, because someone will take over their distribution network, someone will take on their licensing framework, someone will legislate them out of their legacy business model and the artists and consumers will suffer as a result.