Judge failed to go into case with open mind – Megaupload lawyer

UPDATED

The judge who found the four Megaupload founders were eligible for extradition didn’t go into the case with an open mind, a lawyer for the defunct file-sharing website says.

Kim Dotcom and the three other Megaupload founders – Mathias Ortmann, Bram van der Kolk and Finn Batato – are appealing a District Court decision by Justice Nevin Dawson, who said there was an “overwhelming preponderance” of evidence against the men to establish a prima facie case in December last year.

The four men were charged by the US government in 2012 with conspiracy to operate websites used to distribute copyrighted material illegally. All maintain they are innocent but the FBI says they generated $US175 million in criminal proceeds.

Lawyer for Messrs Ortmann and van der Kolk, Grant Illingworth QC, told Justice Murray Gilbert in the High Court at Auckland today that it was a “classic case of one that has gone off the rails.”

The lawyer said the four men’s application for a stay, which would indefinitely halt their extradition, should be granted because the District Court showed “extraordinary disinterest” in their arguments.

He said the District Court judge had predetermined the outcome before hearing the arguments from Dotcom et al and the decision “failed to meet minimum standards.

“It’s like ships passing in the night with no radar — the judge simply did not engage with the arguments in a meaningful way,” Mr Illingworth said.

He reiterated the argument that Megaupload facilitated a service where its users could upload files and share them with others, and his clients couldn’t be held responsible for user activity.

The Queen’s Counsel compared it to a cassette tape which can be used for legitimate or illegitimate purposes.

Mr Illingworth said the most egregious error of the District Court hearing was that key evidence and witnesses supporting the Megaupload founders were not heard before the court for reasons unexplained.

The lawyer also said the US had frustrated court orders by keeping assets owned by Messrs Ortmann and van der Kolk frozen, preventing them from seeking legal advice in the US and other jurisdictions.

Mr Dotcom sat in the back of the court alongside his estranged wife, Mona.

Livestreaming of Dotcom extradition appeal too late – judge
Earlier today, Justice Gilbert condemned Mr Dotcom’s last-minute bid to live-stream the six-week extradition appeal because it was applied for mere days before the trial started. It may still be granted, though.

Last week, the internet tycoon posted a series of tweets saying he had applied to live-stream the case.

Mr Dotcom’s lawyer, Ron Mansfield, said the streaming would be done on YouTube, have a 10-minute delay to ensure sensitive information could be censored, and would adhere to court and media guidelines.

He said the case was of high public interest and the issues being dealt with are significant both locally and internationally.

Mr Mansfield also said live-streaming would ensure balanced and fast reporting, as opposed to the constraints of traditional media such as TV, radio and print.

The US government is opposing the application.

Justice Gilbert said the date of the hearing has been known about for some time so there was little excuse for the internet entrepreneur’s late application.

The judge said media outlets reporting on the case should be able to have their say on whether the application should be granted because it could impede on their reporting, especially because it would require another camera in the court (traditionally, only one camera is allowed in court; TVNZ and MediaWorks are sharing a camera).

The issue will be decided on later today after media have been consulted.

The case continues.

The issues in a nutshell
The US alleges Megaupload was a simple fraud scheme deliberately designed to attract, protect and profit from copyright infringing material.

In their defence, Mr Dotcom’s lawyer Ron Mansfield said the case amounts to whether an internet service provider (ISP), which he says Megaupload is, can be responsible, or should be responsible, for breaches of copyright by its users.

A provision in the country’s Copyright Act also provides a “bar against prosecution” for dual technologies, Mr Mansfield said, claiming it is no crime to make money from a brilliant idea.

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