Regardless of the outcome of Kim Dotcom's February 22 bail hearing [UPDATE: he was freed], both sides should pack a lunch.
A leading intellectual property lawyer says the real meat of the case - the extradition hearing - could take years.
Lowndes Jordon partner Rick Shera points to a UK-to-US extradition case (involving alleged hacker Gary McKinnon) that has so far taken seven years.
Here, the process could to be extended by the likelihood that the Supreme Court would be open to hearing the losing side’s appeal after the High Court reaches its extradition verdict.
There is no shortage of issues, and few of them are clear.
“This thing is all shades of grey,” Chapman Tripp partner Matt Sumpter told NBR earlier this week.
“The US might struggle to extradite [Kim] Dotcom to stand trial in Virginia,” Mr Sumpter said.
“The Americans’ main difficulty lies in the Treaty on Extradition between New Zealand and the United States. That treaty limits the range of extraditable offences between us and America.”
Copyright infringement isn’t covered by the treaty, Mr Sumpter said, and precedent suggested that racketeering was not, either – undermining two key elements of the US government case against Kim Dotcom and the co-accused.
“The relationship between the Extradition Act and our Extradition Treaty with the US, is complicated,” Mr Shera said.
Chapman Tripp’s Mr Sumpter could be right about copyright being excluded, Mr Shera said.
“The treaty does not specifically mention copyright. But there is also an argument that the Act creates a generic ‘extraditable offence’ and copyright fits within that.”
He added, “There are numerous arguments as to what is and is not covered. For example, the conspiracy, money laundering and racketeering charges, which might more easily fit with the treaty, all seem to rely on the underlying copyright infringement.”
Issues are piling up, and none of them are simple. “The comparison between US and NZ copyright law would also be challenging," Mr Shera said.
Another head-scratcher: at face-value, the treaty only covers extradition from NZ to the US for a crime committed inside the US. Many of Kim Dotcom's servers were located in Virginia, but the giant German was demonstrably in New Zealand for most of the period of his alleged offending.
"It's conceivable that New Zealand could extradite someone to the US to stand trial for a crime that wasn't committed inside the US, but only if the New Zealand court would assert the same type of extra-territorial jurisdiction over the person for the same act; pretty rare," Chapman Tripp's Mr Sumpter said.
Where it all end?
“I’d think it likely whichever side loses (assuming resources) will appeal to the Supreme Court. Given the novelty of the case and the importance of the issues involved, I’d hope the Supreme Court would exercise its discretion to hear that appeal,” Mr Shera said.
- "Dotcom's Kiwi haven," in today's print issue of NBR
- Rick Shera on Media7
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