Megaupload defence 'an answer to nothing' - US

After 10 weeks, closing submissions in the Megaupload extradition hearing have finally begun - with Special Feature audio.

Click the NBR Radio box for on-demand special feature audio: Is there any "rot" in the Kim Dotcom case?

There is no “rot” and Kim Dotcom and his fellow Megaupload co-accused wanted to make money from copyright infringement, meaning their extradition remains a simple exercise, the lawyer for the US has told the Auckland District Court.

After 10 weeks of hearings and many hundreds of pages of submissions before Judge Nevin Dawson, the Crown’s closing submissions in the Megaupload extradition eligibility hearing began this morning.

Mr Dotcom and Mathias Ortmann, Bram van der Kolk and Finn Batato were charged by the US government in 2012 of 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.

The US alleges Megaupload was a simple fraud scheme deliberately designed to attract, protect and profit from copyright infringing material, which amounts to extradition “eligibility for surrender in a nutshell”.

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

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

Today, the lawyer for the US, Christine Gordon, QC, says there are various pathways by which the alleged conduct corresponds to extradition eligibility, with the “bare bones requirement” met by “abundant evidence wherever one turns.”

The accused agreed to a business which would pay those who they knew were uploading infringing content, she says, with arguments not blocking access is “industry practice” flawed.

“It may be industry practice if we are talking about the piracy industry,” she says.

“They wanted to infringe copyright so they could make money.”

During the defence case, Mr Mansfield accused the US government of misleading the court through false translations of communications between the co-accused, asking, “Where does the rot end?”

Ms Gordon, QC, says Mr Mansfield, however, did not reveal any “rot” and whether the accused are “evil” or “merely bad” misses the point, because they were still talking about possible legal action against them.

She says the Copyright Act “safe harbour” does not provide a “complete answer,” because Megaupload’s conduct clearly falls outside Parliament’s intentions, which was not to protect copyright fraud committed via the internet.

“It was an answer to nothing.”

The hearing continues.

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