On Tuesday afternoon (Wednesday, Auckland time) a New Zealand judge ordered that founder Kim Dotcom and his co-defendants are eligible to be extradited to the United States to face criminal charges over alleged massive copyright infringement on his now-shuttered site, Megaupload.
The judgement, which almost certainly will be appealed, sets the stage for the winding down of Dotcom’s tenacious years long legal fight against the American judicial system.
As Ira Rothken, Dotcom’s California-based lawyer, tweeted:
Rothken later texted Ars: “We believe the trial court made errors in law and will appeal.”
American authorities allege that the “Mega Conspiracy…generated more than $175 million in criminal proceeds and caused more than half a billion dollars in harm to copyright owners.” For his part, Dotcom has long maintained that Megaupload was no different from any other cloud storage service, like Google or Dropbox, and that he made good faith efforts to remove infringing content.
The hoopla started on January 20, 2012, when New Zealand police acting on the orders of American prosecutors showed up at the mansion of flamboyant Megaupload founder Kim Dotcom, swarming over the property and bringing along two police helicopters. They cut their way through locks and into the home’s “panic room,” where Dotcom was hiding in apparent fear of a kidnapping or robbery. Authorities seized 18 luxury vehicles and secured NZ$11 million in cash from bank accounts and they grabbed a whopping 150TB of data from Dotcom’s many digital devices.
“It was definitely not as simple as knocking at the front door,” said Detective Inspector Grant Wormald in a police press release at the time.
On the day of the raid, American prosecutors unsealed various charges, including criminal charges of copyright infringement, racketeering, wire fraud, and money laundering. A superseding indictment expanded the counts to 13 total, adding charges of racketeering, wire fraud, more counts of copyright infringement, and aiding and abetting copyright infringement. (Racketeering is a catchall criminal charge often associated with cases involving organized crime.)
The original case has spawned new ones, too: the Motion Picture Association of America (MPAA) filed a civil case in April 2014, and US prosecutors have also brought a civil forfeiture case.
One of Dotcom’s alleged co-conspirators, Andrus Nõmm, has already pleaded guilty, served his time, and been released. He told Ars that he had recently returned to his home in Turkey.
As Ars explained nearly a year ago, under the extradition treaty between the United States and New Zealand, only two of the charges racketeering and money laundering are extraditable offenses.
Absent those charges, the US would have an even harder time trying to get Dotcom extradited. Specifically, these extraditable offenses are the 16th and 19th listed in the treaty between the two countries (murder is the first) for which “extradition shall be granted.” The offenses are spelled out as:
Receiving and transporting any money, valuable securities, or other property knowing the same to have been unlawfully obtained.
Obtaining property, money, or valuable securities by false pretenses or by conspiracy to defraud the public or any person by deceit or falsehood or other fraudulent means, whether such deceit or falsehood or any fraudulent means would or would not amount to a false pretense.
However, extradition could be complicated further still if Dotcom a German and Finnish dual citizen becomes a naturalized New Zealander. Under the extradition treaty between the United States and New Zealand, neither country is “bound to deliver up its own citizens.” Today, Dotcom is only a New Zealand permanent resident, not a citizen, so he is not protected under this clause.
But just a few weeks ago, on November 29, 2015, he became eligible five years after he became a permanent resident under the country’s “Investor Plus” program.
Before the ruling was announced, Rothken demurred as to whether Dotcom had already applied to become a New Zealand citizen.
“No comment on citizenship issues today while we wait for the district court’s decision on extradition,” he said by text message.