Dotcom, Copyright, And What Went Wrong

I've been following the Kim Dotcom saga ever since MegaUpload was taken down by the FBI on the orders of the MPAA with little in the way of due process and sod all evidence. The case is winding down because they've got nothing. This is what happened.

Dotcom Case: The Evidence Is Deteriorating In Storage, Server Discs Need Repairing

Four years after MegaUpload was shuttered following a violent raid on the New Zealand mansion of German national Kim Dotcom, his woes continue. According to reports in Torrent Freak, accusations of infringement are still being referred to Google (as reported on Lumen) even though they are provably false and the evidence that might exonerate him is deteriorating in the ageing servers. You'd think that the answer would be to copy the information but

 a) there's a lot of it
 b) the costs are prohibitive since Dotcom has limited access to funds due to court actions so can't pay for the copying himself
 c) there are privacy implications (not to mention the risk of tampering with the evidence) if the MPAA and RIAA were permitted to attend to this themselves
 d) it has yet to be decided who will pay for this

so District Court Judge Liam O’Grady has agreed with the defendants' suggestion that hosting company Cogent repair the drives. Meanwhile, Kim Dotcom is awaiting the outcome of his appeal, which is due to be heard later on this summer.

If the data is allowed to be lost because no one can be bothered to pay to preserve it, will the extradition proceedings, which were always on shaky ground, proceed, or will the US government just quietly drop the case?

Dotcom, The Demise Of ACTA, And Their Affect On IPR In Trade Agreements

On the 20th June, Apple co-founder and EFF supporter Steve Wozniak met Kim Dotcom at his mansion when he discovered that Dotcom, who is under house arrest pending his extradition hearing, couldn't meet him. Although Woz says he doesn't approve of copyright infringement, he seems to have found a lot in common with the German-born MegaUpload founder.

FBI Sneak Back To USA With MegaUpload Evidence

The FBI have "cloned" Kim Dotcom's computer hard drive and taken the copies to the USA, having previously denied them to him, New Zealand's 3News reported today.  This is in contravention of the Crown's assurance that the evidence would not be supplied to the FBI or the Crown before them, or removed to the USA without an advanced warning. So what happened? And what will happen next?

The Crown asserted that it had been made clear from the start that the FBI intended to take the documents back to America, but Dotcom's defense team had sought assurances that the material would not be supplied to the Crown or the FBI before them. The Crown had agreed that this wouldn't happen without prior warning.

"Much of what we have been arguing for is effectively subverted," complained Paul Davison, QC, at the High Court in Auckland. "This is a matter of grave concern... the whole process is totally off the rails." He added, looking as if he'd just woken up in the Twilight Zone, "If anyone thought they could arrive in this country and provide a request to our New Zealand police to ...have them descend on Mr. Dotcom from the sky and rip him and his family out of their house and put him in custody and take away his property and take away his money and put him in a position where he was going to be deprived of access to his information to resist extradition then they made a grave mistake."

Does the Crown and the FBI still have a case?

This latest fumble on the part of Dotcom's adversaries can only serve to compound his case against them:

• the FBI and the police exceeded their authority


• they have disregarded due process


• they haven't got a strong enough case to continue with the extradition, let alone the prosecution


• which is probably why they want the files wiped

This is a classic example of what happens when you let big business set policy. The police and law enforcement groups have been working in tandem with the RIAA and MPAA and their associates using evidence supplied by them. Given that they have a very poor grasp of mathematics, is it any wonder that the heavy-handed attacks they make on file-sharing websites or websites that link to them often backfire?

Meanwhile, New Zealand's Attorney-General's lawyer, Mike Ruffin, has told the High Court that a set of digital images copied from the computers had been taken to the US. "The actual items seized under the search warrant remain in New Zealand,'' he said, after claiming that he had been unaware of the assurances to Mr. Davison. Meanwhile, the New Zealand police have been left holding the baby in the form of an undertaking of liability. It remains to be seen whether or not this latest incident will have a bearing on it.

TPP and the continuing IPR racket

Meanwhile, the Trans-Pacific Partnership (TPP) negotiations continue apace. Apparently, they welcome feedback at tpp@mfat.govt.nz so I'll be sure to drop them a line to explain why this is a very bad idea. USTR has announced that the next round of negotiations will take place in San Diego from July 2 - 10. If the treaty goes through as the upward-ratcheting nightmare we fear it is, cases like Kim Dotcom's will increase and even linking to file-sharing sites will see more people being arrested and threatend with draconian punishments. Which means sooner or later, they'll come for you, dear reader, just for viewing this page.

There is a solution

We must act to stop and reverse the upward ratcheting of intellectual property rights (IPR). The Internet Freedom Movement is a page on Google Plus [full disclosure: I'm one of the admins] where we post news of what is going on in the digital world — and what we can do about it. Bookmark it and circle us. We're also on Twitter and Facebook. We can fight this madness, but we can't do it alone. Join us and keep the pressure on our politicians to remind them they're supposed to serve us, not the other way around.

The Pirate Party is the only party that stands up for digital rights. While it's fairly new and often accused of not having a broad enough range of policies to meet the needs of everyone, I would argue that a) that's not true and b) sorting IPR law out to break up the power of the monopolists would actually help to resolve the other problems that people are facing.

We can't just sit here and do nothing, and protesting and signing petitions does actually work. I look forward to seeing you at the IFM, and when the elections come around, if there's a Pirate candidate standing, vote for him or her. Failing that, the Greens support us so vote for them.

Kim Dotcom: "We Gave Studios Access To Megaupload Servers"

Caught in the middle of what turns out to be one of the most complex cases of copyright infringement enforcement in history, Megaupload founder Kim Dotcom has revealed that it was compliance with privacy laws that prevented him from policing his cyberlocker website.

The tangled legal web

German-born Kim Dotcom (formerly Kim Schmitz) is no stranger to controversy or problems with the law. He's a convicted fraudster, for a start. However, his attempt to solve the problem of sharing files with his friends led to an indictment by the MPAA on charges of copyright infringement on a massive scale.

DMCA Safe Harbour

It's no secret that the MPAA, no strangers to infringement themselves, have been trying to get rid of the safe harbour provisions of the DMCA so they can prosecute people for copyright infringement more easily. They've also been pushing for invasive measures to monitor our online lives, ostensibly to aid the law enforcement agencies and protect us from child pornography, etc., but really to restrict our use of the internet to access their content. They've actually admitted, in a statement to CNet, that they believed that a criminal prosecution was the most appropriate way of dealing with "Megaupload's massive infringement" and therefore never intended to bring a civil prosecution. Presumably because the money-grubbing hypocrites would have to pay for it themselves. As it is, the costs are being borne by US taxpayers. Dotcom claims to have been taken by surprise because his legal team had told him that he and his company were protected by DMCA safe harbour and were not liable for the actions of third parties as long as they complied with the takedown notices as and when they were issued.

In most cases, entertainment companies will try to negotiate or at least issue a cease-and-desist letter when they think a service is infringing. If all else fails, they almost always file a civil suit against the alleged violator. According to DotCom, they did not do that in this case, according to CNet reporter Greg Sandoval.

Privacy laws prevented policing the uploaded content

John Campbell of New Zealand's 3 News got an interview with Dotcom in which he revealed some of the complexities that could see the case bogged down in court for years:

• the sheer size and viral nature of Megaupload made it impossible to police. Dotcom claims that the network that running on 1.5 terabytes of bandwidth — about 800 file transfers completing every second.


• In the US and Europe privacy laws prohibited them from looking into the accounts of users to seek out infringing content.

Voluntary scheme gave studios access to remove infringing content

Aware of the scale of the problem, Dotcom provided 180 content owners with the opportunity to remove infringing links via an online form AND direct delete access to Megaupload servers so they could access the system and remove the links themselves. Partners in the scheme included every major movie studio and Microsoft, who removed over 15 million links. He points to the fact that although he has been sued by a porn company and settled out of court, he has never received so much as a cease-and-desist letter from the MPAA. This, he assumed, was because he had cooperated so completely with the studios and was covered by DMCA safe harbour. What he doesn't understand is why he's been singled out while Google and YouTube claim safe harbour and aren't shut down.

However, according to the US government, the tool only removed specific links to files, though, often leaving the file in place and accessible via other links.

ISPs attempt to cap bandwidth to strangle legal streaming services

Meanwhile, Time Warner Cable have launched a tiered services that offers up to 5GB a month of data transmission for a $5 discount off their bill. The deal is sweetened with the ability to opt in and out of a tiered package at any time. A charge of $1 per GB applies for going over the limit and they're offering metered usage. Customers can switch back and forth as often as they like, but if they choose not to switch, nobody’s switching anything for them, they said in their company blog.

This has prompted a flurry of controversy as customers complain of being restricted from using legitimate streaming services like Hulu and Netflix.

Content providers unwilling to switch to streaming or allow full ownership

My kerfuffle with Armovore and the interview with Kim Dotcom have revealed that the copyright holders are aware that streaming and torrents provide a better, faster, more efficient service to users but they're not interested in doing that. In fact, what they appear to be aiming for is to create a digital climate in which we don't actually own the things we buy online — we're renting them and are obliged to pay for each use. The invasive ISP snooping laws the various governments are trying to bring in are designed to facilitate enforcement of this policy.

We don't have to take this lying down. Join the Internet Freedom Movement and the Electronic Frontier Foundation, and support your local Pirate Party. Read, share, and educate yourself to stop the slow creep into a police state run by and for big business.

Treated Like A Terrorist: US Tries To Put Dotcom Back In Jail

TorrentFreak got the exclusive on this: Kim Dotcom, founder of cyberlocker website Megaupload, which was seized by the US authorities earlier this year, is being treated like a terrorist as Crown prosecutor Anne Toohey argues that he needs to be returned to prison.

In a statement to the court at North Shore she said that two more bank accounts have been discovered; one in the Philippines and another in the British Virgin Islands containing $2000, making Dotcom a flight risk despite the imminent birth of twins to his wife Mona, who is also suspected to be involved in Megaupload.

The upshot is that Dotcom is free to continue the fight against the US authorities who want him extradited to face racketeering, copyright infringement and money laundering charges. It also transpired that $2000 — and whatever is in the British Virgin Islands account — is insufficient to meet Dotcom's needs because he asked for $220,000 to be released. Judge Tim Brewer assented. The extradition appeal will begin in August, but the case itself could take years, according to a report in the National Business Review, a New Zealand online paper.

The heavy-handed long arm of justice

One of the more puzzling aspects of the case has been the consistently heavy-handed approach taken by the authorities. There's a colourful report on his life and times in the Brisbane Times, repeated from MNBC, that says he's basically a publicity-hungry fantasist and fraudster guilty of running a pump-and-dump scam on letsbuyit.com and running off with the cash before the authorities caught up with him, but it's the tech blogs that focus on the heavy-handed display of shock and awe that got a plush mansion trashed in a spat over copyright infringement. They want him extradited to face racketeering, copyright infringement and money laundering charges.

Bogged down in a legal quagmire

“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.” - IP lawyer Rick Shera

Copyright infringement isn’t covered by the treaty, and precedent suggested that racketeering was not, either – undermining two key elements of the US government case against Kim Dotcom and the co-accused. - Chapman Tripp partner Matt Sumpter told NBR earlier this week.

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.

As a result the case might collapse, leaving us all wondering if it was all a collossal waste of time and taxpayers' money on a case that really should have been dealt with as a civil case. Criminalizing copyright infringement appears to be causing more problems than it's intended to solve.

Copyright complicated by the internet

The internet has complicated copyright, which was first set up to protect a publishers' trade monopoly, according to Glyn Moody's piece on Stir to Action, The Struggle Between Copyright and the Internet. Mr. Moody contends that the original intent was to facilitate censorship by providing a registry of printed books, and that it was later amended to protect the rights of creators and publishers to encourage learning.

...copyright was no longer a system of censorship, but was seen as encouraging learning through the business of publishing; the right of the author was recognised, as was that of the publishers (the “purchasers” in the quotation above) who acquired those rights; finally, and crucially, copyright’s monopoly was no longer perpetual, as it had been with the Stationers’ Company. The Statute of Anne specified a term of 14 years for new books, renewable to a maximum of 28 years.

The current copyright laws far exceed those terms and copyright maximalists are pushing for further criminalization of infringement even though they themselves are often guilty of infringement themselves when they're not sending bogus DMCA notices. In fact, it's their insistence on retaining their current business model that's causing the piracy problem because it works by creating an artificial scarcity of an available commodity. The government complies with their demands because it makes it easier for them to monitor and control us and because of the campaign donation money politicians receive for selling us out.

However, the UK government appears to be waking up to the reality that the internet empowers individuals; it's created a new website called "Inside Government" to provide a daily news feed so we can see their latest news, policies, publications and consultations. You can also find information about government ministers, departments and organisations and the UK’s interests and policies in the rest of the world. Amusingly, a website search for ACTA brought nothing up.