Dotcom 'whitepaper' alleges corruption and dirty tricks

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Dotcom 'whitepaper' alleges corruption and dirty tricks
Kim Dotcom. Photo credit: Juha Saarinen

Megaupload covered by DMCA safe harbour?

Kim Dotcom and his legal team are continuing the campaign against America's prosecution of Megaupload for copyright infringement, publishing a 39-page whitepaper on the issue.

In the paper they argue the government's case against the file sharing service is untenable and driven by rights holder interests.

Focusing on the concept of secondary infringement, Amsterdam and Rothken write that even if the US government's "wishful expansion of the criminal copyright law" into that realm was tenable, Megaupload is shielded from criminal liability by the so-called safe harbour provisions in the Digital Millennium Copyright Act or DMCA.

The DMCA stops providers from being held criminally liable if they comply with take-down notices from rights holders, and remove material that is infringing.

Megaupload's lawyers point to the long-running case of YouTube being sued by Viacom, where a US court eventually held that providers do not have to prove they were unaware of of copyright infringement in order to be covered by DMCA safe harbour provisions.

However, the whitepaper goes further and says that as the United States has no jurisdiction over Megaupload, its case against the file locker is untenable.

"Although the government has advanced a number of arguments why it should be allowed to bypass due process and skirt the express requirements of the Federal Rules of Criminal Procedure, none of its arguments has any basis in law," Amsterdam and Rothken write.

Accusing the US government of misleading its New Zealand counterpart and resorting to "dirty tricks" in general, the Megaupload legal team say private interests are behind the court case.

"There is little dispute that the prosecution of Megaupload and Kim Dotcom has been driven
principally by the Motion Picture Association of America (MPAA)," the lawyers say.

They point to former US Senator Chris Dodd and current chairman and chief executive of the MPAA lobbying Washington to strengthen intellectual property laws and also attempting to influence vice president Joe Biden.

"The US government’s attack against Megaupload bears all the hallmarks of a contract prosecution: a case resting on erroneous theories of criminal law, littered with due process violations and prosecutorial abuses, carried out for the benefit of a select few in exchange for their political and financial support," according to the whitepaper.

The head of the United States Department of Justice, attorney-general Eric Holder, who is also in charge of the Federal Bureau of Investigation that took part in the raid against Dotcom, is currently visiting New Zealand. Among the things to be discussed with the New Zealand government is the Megaupload case, the country's attorney-general Chris Finlayson told the NZ Herald.

Dotcom and Megaupload associates Bram van der Kolk, Mathias Ortmann and Finn Batato are awaiting a court hearing in August this year, to find out if they will be extradited to the United States to be tried for criminal copyright infringement.

The four were arrested in January last year after a raid on Dotcom's mansion in Coatesville, Auckland, and have been out on bail fighting the allegations against them by honing in on procedural errors by NZ police and intelligence agencies acting on behalf of the FBI.

Despite US and NZ government opposition, the Megaupload four started up a new encrypted file sharing service while out on bail.

Full text of the Megaupload Whitepaper



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