back to article New Zealand Supreme Court says Kim Dotcom search warrants were legal

File-sharing kingpin and self-described pauper Kim Dotcom will need to cough up another NZ$35,000 ($26,900) after losing the latest round of his long-running legal battle before the country's Supreme Court. The sum will go to cover the New Zealand government's costs to defend warrants that were issued for searches of …

  1. Khaptain Silver badge

    I don't get it

    Can anyone actually confirm that KDC, or his company, was actually sharing illegal files. I always understood that he simply owned the platform.

    Or is this poor bastard, simply being used as a media scapegoat...

    Sounds like our Kiwi bretheren have dropped their pants for Mr Obama...... I think that this is what upsets me most, I like the Kiwis so I can't understand them being brow beaten for this kind of crap.

    Unless of course KDC was actually the sharer, in which case, tough luck, you got caught.

    1. Mark 85 Silver badge

      Re: I don't get it

      I don't get it either... maybe he did share, or maybe just encouraged others to share. If encouraging than I can see something like an 'incite" charge. Then again, if say a bar, openly allows drug trafficking on the premises, are they guilty of trafficking also? Or guilty of something else? Is there an Internet Lawyer present here who can clarify?

      1. Anonymous Coward
        Anonymous Coward

        Re: I don't get it

        In response to the question on KDC's and MegaUploads alleged crime: it was in effect *knowingly* allowing the service to be used to distribute pirated content.

        All web services that allow distribution of user content have the problem of knowing whether the user has a legitimate right to distribute the content they provide and so can claim they were unaware. The problem comes when you are contacted by the legitimate content owner and ask to remove content and prevent further distribution and then fail to take suitable measures or act accordingly. Now KDC says he did, the US legal system says not.

        In version 2.0 of the service (Mega) KDC's solution was to encrypt at source and pass content linking or cataloging off to the user or a third party service. The effective intent is to create protection via plausible deniability.

        1. Tom 13

          Re: All web services that allow distribution

          Not quite. Most web services can demonstrate that income generated from infringing materials is incidental to their business model, not essential to it. This is what I expect where I expect the case will focus.

          Yes, the intentional obfuscation does give away the game.

      2. tom dial Silver badge

        Re: I don't get it

        "if say a bar, openly allows drug trafficking on the premises, are they guilty of trafficking?"

        The short answer is that Kim Dot Com is unlikely ever again to see any of his US holdings.

        In the US, they probably would not be guilty of trafficking as such, but the bar likely would be subject to forfeiture under laws that allow confiscation of things alleged to have been used for criminal activity. Lately one of the favorite activities of some police forces is to stop out of state cars for possibly spurious traffic offences, intimidate the drivers into allowing a search, or bringing in a drug sniffing dog to "alert" and justify a search. Any money found (and people sometimes transport astonishing amounts of cash, running to many tens of thousands of dollars) is "charged" with being the product of criminal activity and seized. While some owners have mounted a successful defense and recovered at least part of their money, in most cases it is split about evenly between the "arresting" agency and the federal government. The Washington Post had a good series on this a few months back, although they failed to explain so that I could understand it how this abomination passes Fifth Amendment muster.

        1. Alan Brown Silver badge

          Re: I don't get it

          "In the US, they probably would not be guilty of trafficking as such, but the bar likely would be subject to forfeiture under laws that allow confiscation of things alleged to have been used for criminal activity"

          That was written a month ago.

          In the meantime, Eric Holder has shut down the civil forfeiture program. KDC might get his holdings back after all.

    2. Ole Juul

      Re: I don't get it

      Can anyone actually confirm that KDC, or his company, was actually sharing illegal files.

      The way I understand it, in America (which seemingly includes NZ) it is not necessary for the government to prove guilt before giving somebody a hard time. In this case, the US govt. claims to have the evidence, but will not share the details. The system is based on a mythical trust, but in reality it is based on power. As far as I understand this case, the hierarchy goes something like this: Hollywood -> US govt. -> NZ govt.

      1. Mark 85 Silver badge

        Re: I don't get it

        , the hierarchy goes something like this: Hollywood -> US govt. -> NZ govt.

        I believe it's anyone with the buck to give.. Although if past elections are anything to go by, Hollywood exerts a lot influence in the form of endorements from celebs who seem to have the brainpower of malfunctioning LED.

      2. Anomalous Cowturd
        Thumb Up

        @Ole Juul

        YOU get it.

        I get it.

        WE get it.

        THEY don't get it.

    3. LINCARD1000
      Facepalm

      Re: I don't get it

      The platform his company hosted probably was used to share illegal material but then again there are a lot of other cloud and file-sharing sites that are also used for this purpose. I suspect his was targeted in order to make an example and also likely to set a precedent by the US entertainment corporations. Certainly appears that way based on what I've seen/read/heard.

      On a personal level I think KDC is a bit self-serving with the whole woe-is-me thing and as it turns out the raid might have been legal according to the strict letter of the law...

      HOWEVER... helicopters, dogs and armed police in what almost amounts to a paramilitary invasion of his residence for what is realistically a white collar crime? And *specifically* at the behest of the FBI? That's more than a little over the top, given other white collar crime cases even if they involve a hell of a lot of money usually merit little more than a couple of squad cars and men in suits with a search warrant turning up.

      Ridiculous! And it was my tax-payer money that was used for this farce which makes me furious. Yes, the NZ government is bought and paid for by the American government and associate corporations, sadly. Not only that but we're also getting actively shafted by new and draconian laws being introduced in the name of 'protecting' us from 'terrorism' - even though NZ is very much NOT a target.

      Gah.

      Our prime minister is an arrogant, puppet clown. NZ being one of the most so-called "free" countries on the planet? Maybe to outsiders it is.

      1. John Brown (no body) Silver badge

        Re: I don't get it

        "HOWEVER... helicopters, dogs and armed police in what almost amounts to a paramilitary invasion of his residence for what is realistically a white collar crime?"

        Meanwhile, here in the UK, the well known/well off who fall foul of the law get a polite phone call from Mr Fuzz asking them if they wouldn't mind popping down to the local nick one afternoon for tea and biccies with their team of lawyers in tow so they can be arrested by appointment. It's very civilised so long as you have the cash.

        1. Danny 14

          Re: I don't get it

          "Meanwhile, here in the UK, the well known/well off who fall foul of the law get a polite phone call from Mr Fuzz asking them if they wouldn't mind popping down to the local nick one afternoon for tea and biccies with their team of lawyers in tow so they can be arrested by appointment"

          unless you are 12 year old girls with iphones in a cinema, those horrid criminals get the full police treatment at the behest of cineworld it seems.

          http://www.dailymail.co.uk/news/article-2883404/Girls-left-tears-dragged-cinema-hauled-police-staff-wrongly-accused-12-year-olds-filming-Hunger-Games-iPads.html

        2. Boris the Cockroach Silver badge

          Re: I don't get it

          Quote : 'Meanwhile, here in the UK, the well known/well off who fall foul of the law get a polite phone call from Mr Fuzz asking them if they wouldn't mind popping down to the local nick one afternoon for tea and biccies with their team of lawyers in tow so they can be arrested by appointment. It's very civilised so long as you have the cash.'

          Unless you are Cliff Richard in which case the fuzz tell the BBC they're doing a raid complete with SWAT teams and helicopters the next morning.....

        3. This post has been deleted by its author

      2. kiwi13

        Re: I don't get it

        Exactly

      3. Mark 85 Silver badge

        Re: I don't get it

        HOWEVER... helicopters, dogs and armed police in what almost amounts to a paramilitary invasion of his residence for what is realistically a white collar crime?

        Well, they didn't know he wasn't armed. <rolls eyes> But realistically, if the cops get a chance to drag out the hardware they will. Sort of like IT types and new nerd stuff/toys, or beer only different.

        1. manarth

          Re: I don't get it

          Actually they knew he *was* armed (Dotcom had a number of legally-owned and licenced shotguns in the mansion)…but their justification for the raid was supposedly some sort of 'Doomsday device' which would remote-wipe all the Mega servers, eliminating any evidence. A plot that could only be thought up by Hollywood…

      4. Robert Helpmann?? Silver badge
        Joke

        Re: I don't get it

        helicopters, dogs and armed police in what almost amounts to a paramilitary invasion of his residence for what is realistically a white collar crime

        Hmm... that could work for a movie! Perhaps he should get one made about his ordeal and then retire off the proceeds. Oh, wait... file sharing.

      5. Tom 13

        Re: also likely to set a precedent

        The precedent is long established. It was the Napster case. If a the primary means by which a business sustains itself is encouraging the illegal distribution of IP materials, it is guilty of IP infringement.

        1. Alan Brown Silver badge

          Re: also likely to set a precedent

          "The precedent is long established. It was the Napster case"

          Napster didn't cooperate in removing links. KDC/Mega did.

          As a file locker, Mega was carrying significant amounts of non-infringing content and the Betamax argument probably applies.

          This litigation is all about who has deeper pockets - and to ensure the playing field is skewed, KDCs funds were seized before he could mount a defence. He's lucky that he got enough released to get as far as he has, but NZ has a long history of this kind of thing.

      6. Alan Brown Silver badge

        Re: I don't get it

        "NZ being one of the most so-called "free" countries on the planet?"

        Used to be. Sleeping Dogs has become a template for the future, not a warning.

      7. Alan Brown Silver badge

        Re: I don't get it

        "NZ being one of the most so-called "free" countries on the planet? Maybe to outsiders it is."

        NZ does very well at hiding things from its own people. Take a look at https://laudafinem.com/ sometime

    4. SDoradus

      Re: I don't get it

      Dotcom has always maintained that he took all measures legally required to remove notified infringing material, and indeed co-operated with the feds and the MPAA in doing so.

      But he also said it wasn't reasonable to expect him to identify such material - that's the job of the copyright holder. The matter has never actually come to trial, because he'd have to be extradited first.

      It's not really a matter of the Kiwis 'dropping their pants' for the US. The article is a bit snide about his funds. He ran out of money to the extent that his NZ attorneys stopped representing him... coincidentally, that was when he began losing legal struggles in the Court of Appeal and Supreme Court.

      Whatever other funds he has are subject to freezing orders so he can't use them to defend himself.

      1. Tom 13

        Re: Dotcom has always maintained

        IF you accept that the warrants and extradition paperwork were properly in order it's not that simple. The NZ courts have now ruled that the search warrants were in order, I'm not sure about the extradition paperwork. Given the search warrants seemed to be the weaker issue, let's assume the extradition is in order to.

        The Napster case set the precedent that if your business model depends on encouraging others to infringe on IP, your business is also liable for the infringement. It doesn't strike me that "I didn't know I was encouraging IP infringement as a key function of my business plan" is going to fly in a court of law.

        Now the only time I have ever seen a reference on the interwebs to his site or several similar sites, it was always in relation to material that was either obviously infringing or questionably infringing, I don't see that the US government has a high hurdle in proving his business plan depending on people infringing those IP rights.

        Yes, in the past I have used a link to his site to access material that fell on the questionable side. I regarded it as parody work but I also understand where the owners of the original work would have objected to the parody. Also, as far as I know, no one involved in the parody made any money from creating the parody work.

        No, I'm not overly fond of the Napster case. I think we lost a system that distributed a lot of old and under-available songs to a lot of people. But I also see where the primary drive for it was costing IP owners a LOT of money. Whether the legal IP owners were the ones who deserved the money is certainly questionable from a moral standpoint, but not a legal one.

        1. tom dial Silver badge

          Re: Dotcom has always maintained

          I think it remains to be proved that Napster was costing IP owners a lot of money. While skepical, I am not closed to persuasion. However, all the claims I have seen that support such a claim were bought by industry groups and therefore corrupted by the very strong suspicion of self interest.

        2. Alan Brown Silver badge

          Re: Dotcom has always maintained

          "But I also see where the primary drive for it was costing IP owners a LOT of money. "

          How does it cost them a lot of money if the songs in question weren't available _at all_ in most cases, therefore no royalties were coming in.

          Napster et al forced the music industry to open up its back catalogue. That's one of the things they don't like about it.

    5. gnasher729 Silver badge

      Re: I don't get it

      Kim Dotcom under his former name Kim Schmitz was convicted for computer fraud, data espionage, insider trading, and embezzlement (according to Wikipedia).

      The problem that he has with his file-sharing service is that not only did he do his best to avoid removing infringing materials, he also actively encouraged people to upload and publish materials that are infringing someone else's copyright.

      If a fence is caught, do we have to prove he actually stole anything? Of course not, handling stolen goods is a crime on its own (and arguably the worse crime, since more money is made). That's why he is guilty.

      1. kiwimuso

        Re: I don't get it

        @ gnasher729

        Your first paragraph may well be true but has little relevance to this case.

        Your second paragraph is pure supposition on your part - and the U.S. Government's as well.

        Unless you have some proof of course. Citation perhaps? But not one of the spurious U.S. Government allegations which remain just that, allegations.

        Anyone can throw dirt around and some of it will stick. It seems you have bought the dirt big time.

        Your analogy is a bit skewed. Possessing stolen goods is indeed a crime, but owning an open system which is used by OTHER people to store things, does not mean that any alleged IP content is in his possession. Google Drive, Dropbox, any other cloudy storage facilities perhaps?

        Personally I am getting the impression that the Americans didn't like the competition, so this is their way of ridding themselves of a system to which their law enforcement agencies don't have access.

  2. Keef

    Team America: World Police

    Up to their usual tricks.

    1. Anomalous Cowturd
      Joke

      Re: Team America: World Police

      FUCK YEAH!!!

  3. Anonymous Coward
    Anonymous Coward

    He can run...

    ...but he can't hide forever.

    YES the authorities proved he had copyright protected files on his servers that were being illegally distributed.

    1. John G Imrie

      Re: He can run...

      YES the authorities proved he had copyright protected files on his servers that were being illegally distributed.

      Unfortunately for them DotCom has proved that he worked with the authorities to remove the material when asked.

      1. Sir Sham Cad

        Re: worked with the authorities

        The key phrase there is "when asked".

        There's no doubt Megaupload made a lot of money from filesharing subscriptions and there's no doubt a lot of the files that were shared were copyright infringing. The question is whether or not Dotcom knew about it and didn't care as long as the dosh rolled in as a matter of policy.

        The Feds must prove that he wilfully and knowingly made money from illegal filesharing.

        The hostile takedown I can only put down to the fact his gaff looked like a Bond villain lair and they couldn't resist storming the castle of the Blofeld of copyright infringement enablers.

        1. Raphael

          Re: worked with the authorities

          I understand the feds have evidence of him and his team actively making sure that any content on Youtube was to be ripped off and made available on the mega networks.

          http://www.whaleoil.co.nz/2013/12/fbi-evidence-kim-dotcom-released/

          the summary of their evidence is available here: http://www.scribd.com/doc/192754949/Mega-Evidence

          1. Alan Brown Silver badge

            Re: worked with the authorities

            Whaleoil/Cameron Slater is a convenient sock puppet for the NZ govt.

            Anyone outside NZ might want to look through the archives at http://laudfinem.com/ and judge Whaleoil's credibility for themselves. (L-F is geoblocked in New Zealand, apparently without any supporting legal paperwork)

        2. Alan Brown Silver badge

          Re: worked with the authorities

          > The key phrase there is "when asked".

          The key legal point under USA safe harbour provisions is that is all he needed to do.

          Going above/beyond that (ie, actively scanning for and removing infringing content) would have opened Mega up to legal action from users on privacy violation grounds - and he wouldn't have a leg to stand on because no laws on the books allow preemptive destruction of such data.

          KDC is normally the kind of tosser I'd like to see take a spectacular fall, but I'd like to see it happen with law enforcement all above board. The fact that they resorted to illegal actions and then had to pass laws to make it retrospecively legal speaks volumes for the mentalities at work.

          New Zealand has pretty much proven it has the best legal system(*) money can buy. The initial tactic (and this was discussed in leaked documents) was to seize all his assets/cash so he couldn't fight back. It almost suceeded too.

      2. Alan Brown Silver badge

        Re: He can run...

        "Unfortunately for them DotCom has proved that he worked with the authorities to remove the material when asked."

        Doubly unfortunately he has also presented evidence that much of the material they pointed to to justify the case and raids in the first place was there because the owners and/or DoJ had asked for it to be retained due to ongoing investigations.

    2. Anonymous Coward
      Anonymous Coward

      Re: He can run...

      When did that happen? Was there a secret court case that nobody except you knows about?

  4. Anonymous Coward
    Anonymous Coward

    I wonder if he has anyone looking through the Sony leaked material to find the 'get DotCom' order from the MPAA - that would set the fox among the chickens.

  5. Vociferous

    When even Google gets pummelled by the MPAA and its tame officials...

    ...what chance does Kim Dotcom have, never mind Joe Average?

    The Verge has reported that the MPAA and the major Hollywood studios directly funded various state Attorneys General, including Hood, in their efforts to attack and shame Google.

    http://www.theverge.com/2014/12/12/7382287/project-goliath

    1. Alan Brown Silver badge

      Re: When even Google gets pummelled by the MPAA and its tame officials...

      Google has had enough of the MPAA and has started fighting back - point being that Google has enough money down the back of the sofa to BUY hollywood and shut it down.

      This has the MPAA and various state DAs who've been colluding with them running scared.

  6. Mark 65

    Personally

    I cannot wait for the fall of the American Empire. Its "our law, world law" mentality and its playground bully behaviour has become quite tiresome. I'm sure there would be few in the World that would mourn its passing. This period in World history has shown that having only one major power leads to a lack of balance whereby said power just acts like a complete tosser.

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