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Why Kim Dotcom hasn’t been extradited 3 years after the US smashed Megaupload

95 points by thursdayb 12y ago

caractacus 12y ago
1. Because he had a lot of money to spend on lawyers 2. Because there are some fundamental issues - slowly getting cleared - on issues of search, procedure, etc 3. Because the legal system can take a bloody long time to achieve anything
corin_ 12y ago
When will the US DoJ hire a decent PR firm? Again and again during these three years they've made cock-ups that push people (like myself) towards supporting Dotcom even if we don't particularly like the guy, and even if we think for the actual charges he's likely in the wrong. > In the forfeiture case, prosecutors will argue why Dotcom’s claim on the frozen assets should not be allowed—and therefore forfeited to the US government—under the "doctrine of fugitive disentitlement." That idea posits that if a defendant has fled the country to evade prosecution, then he or she cannot make a claim to the assets that the government wants to seize under civil forfeiture. Hooray, a loophole in the laws that might let them seize his assets: call him a fugitive! Even though he hasn't visited America one single time in his life. And even though he is still in the country where he calls home, and has done for more than a year before this case started. Maybe it's not the DoJ's fault, maybe Dotcom and his lawyers (and PR) are really, really good. But nearly every story in the past 3 years has made him look good and them look bad, which shouldn't be the case when you've got a government department charged with delivering justice against a guy with a track-record of being an asshole and breaking the law.
- ObviousScience 12y ago
  It doesn't help their case in my mind that they probably broke the law with the seizures they performed: I was using Megaupload to store backups and distribute files I legally owned, such a game maps or documents. During their raids, they seized the funds used to provision the servers, failed to preserve the data, went so far as to prevent efforts on the part of Megaupload to return the data to me, and failed to allow for any sort of process for me to claim it before the servers were destroyed. That data wasn't specifically targeted in a forfeiture action, nor was it specifically accused of being infringing. The US government simply destroyed my data as part of their raid against Megaupload without any concern for the fact I was engaged in legal business with them, and simply using them for remote storage. Nevermind that they induced a foreign government to illegally spy on one of their residents as part of a copyright enforcement action. That's just hideously ugly.
  - Fuxy 12y ago
    I would be nice if there was a way to calculate the amount of financial damage the US government did to legitimate users of the Mega Upload Service. The US government should be held financially responsible for these. Plus you could consider the failure of the US governments preservation of Mega Uploads data as destruction of evidence. If the evidence is not present during the trial it didn't exist.
  - longlivegnu 12y ago
    Many Americans do not care if the government breaks the law and I'm sure the lawyers will try to justify it in courts.
- Symmetry 12y ago
  I'm curious why think he's guilty of the charges against him. Now, he's obviously guilty of civil copyright violation and can probably be sued into bankruptcy. But criminal copyright infringement requires mens rea and internal company transcripts show that the people at MegaUpload thought that they were within the law on some technicalities. They weren't but a reasonable belief that they were means that this wasn't criminal copyright infringement.
  - corin_ 12y ago
    Not only am I not a lawyer, I also don't know/remember many of the details of this case. And I said likely, not definitely, guilty in my opinion. Regarding mens rea, I imagine it's tougher to argue that you thought you were legal technically than to argue you had no idea you might be breaking the law? E.g. Someone who has never heard of magic mushrooms but find then growing and sells them has a better chance of not being convicted for selling illegal drugs than someone who knows and had researched the laws and thinks they have a technicality to allow them to sell? Of course that's assuming they were wrong about the technicality.
    - new299 12y ago
      Just, in case it's of interest, statements from Kim suggest that he was trying to comply with the DMCA. That all major studios has direct access to the platform to delete links. I personally find the issues unclear, as obviously to a degree as he suggests below, Youtube and other providers are in a similar position: "Well, of course everybody knows that the internet is being used for legitimate and illegitimate uses. I think every online service provider has the same challenges that we have. YouTube, Google, everybody is in the same boat. So what you need to understand here is that we provided the content owners with an opportunity to remove links that were infringing on their rights. So, not only did they have an online form where they could take down infringing links, they had direct delete access to our servers so they could access our system and remove any link that they would find anywhere on the internet without us being involved. They had full access and we’re talking about 180 partners, including every major movie studio, including Microsoft and all big content producers and they have used that system heavily and you need to understand that that system was not even something that was even required by the law. We provided that voluntarily and they have removed over 15 million links." From: http://www.3news.co.nz/tvshows/campbelllive/kim-dotcoms-first-tv-interview-im-no-piracy-king-2012030118#ixzz3PH3S7eWO http://www.3news.co.nz/tvshows/campbelllive/kim-dotcoms-firs...
- brudgers 12y ago
  They don't need a PR firm. The US public as whole puts up with the lack of due process. They don't have a choice. There are different rules for different persons. Uber and AirBnB are figuring out how to violate local laws. They are corporate persons and are not charged with conspiracy, racketeering or money laundering when spending the proceeds of illegal activities...even in the furtherance of such activity. Kim Dotcom is a natural person who has angered corporate persons. The full weight of the law must be used against him. That's how crowd control is maintained.
brador 12y ago
Might be that thing where in exchange for working for them you get to keep your freedom.
- longlivegnu 12y ago
  >where in exchange for working for them you get to keep your freedom. I'm not sure that's how freedom works.
  - clamprecht 12y ago
    That is how it works, see Federal Sentencing Guidelines Section 5K1.1: http://www.ussc.gov/guidelines-manual/2011/2011-5k11 http://www.ussc.gov/guidelines-manual/2011/2011-5k11 I don't think that is the case with Dotcom at this point.
acqq 12y ago
This was insightful for me: ""Congress, initially as part of the War on Drugs but later expanded to include most federal offenses, criminalized almost every financial transaction that flows from funds that are the proceeds of ‘specified unlawful activity,’" Bruce Maloy, an Atlanta-based attorney and an expert in US extradition law, told Ars by e-mail. "In simplest terms, if you possess funds from a crime and do anything with the money other than bury it in the ground or hide it under the mattress, you have committed a new crime. Spending the money is a new crime, opening a bank account is a new crime. These expenditures do not have to be in furtherance of the original crime, but my recollection is that here it alleged that they are. In short, throwing in a money laundering allegation is quite common in US federal indictments." Page Pate, another Atlanta-based defense lawyer who has also worked on international extradition cases, agreed. "It's almost automatic to add money laundering charges to any offense whether it's drug-related or not," he said. "I haven't seen it that often in criminal copyright cases. The US has been very aggressive in adding money laundering and forfeiture in criminal cases."" Ain't it great, War on Drugs?
- corin_ 12y ago
  I'm against the war of drugs, but not sure it's to blame here. A law criminalizing the use of illegally-gained funds is a useful law for them in general, and it happened that their big focus at the time was the war on drugs so that's where they'd get the most use from it. But as far as I know, it was never claimed to be only for the war on drugs, and they didn't attach it to the war on drugs as a smokescreen the way they attached the Patriot Act to terrorism. I could be wrong about that, but as far as I'm aware it was an innocent connection to drugs. After all, if you are impeaching civil liberties you may need a smokescreen like drugs or terrorism, but making it illegal to use illegally-gained funds is something I suspect most US citizens would be OK with immediately without the need for deception.
  - acqq 12y ago
    So how US managed to survive without that law for all the years? I can't imagine the law was necessary for anything, except that it allowed US to prosecute those who'd be off the hook otherwise. So yes I do believe it was the "War on Drugs" peddled as the rationale for the law: "look these drug guys are slipping away, we have to make a new law and get them with it."
unimportant 12y ago
Tons of money to fight the extradition + him being good at exploiting the US gov hate of the people to make himself look like a freedom fighter instead of the greedy scumbag that he is via well done PR campaigns.
- deleted 12y ago
  [deleted]

95 points by thursdayb 12y ago

1. Because he had a lot of money to spend on lawyers 2. Because there are some fundamental issues - slowly getting cleared - on issues of search, procedure, etc 3. Because the legal system can take a bloody long time to achieve anything

corin_ 12y ago

When will the US DoJ hire a decent PR firm? Again and again during these three years they've made cock-ups that push people (like myself) towards supporting Dotcom even if we don't particularly like the guy, and even if we think for the actual charges he's likely in the wrong. > In the forfeiture case, prosecutors will argue why Dotcom’s claim on the frozen assets should not be allowed—and therefore forfeited to the US government—under the "doctrine of fugitive disentitlement." That idea posits that if a defendant has fled the country to evade prosecution, then he or she cannot make a claim to the assets that the government wants to seize under civil forfeiture. Hooray, a loophole in the laws that might let them seize his assets: call him a fugitive! Even though he hasn't visited America one single time in his life. And even though he is still in the country where he calls home, and has done for more than a year before this case started. Maybe it's not the DoJ's fault, maybe Dotcom and his lawyers (and PR) are really, really good. But nearly every story in the past 3 years has made him look good and them look bad, which shouldn't be the case when you've got a government department charged with delivering justice against a guy with a track-record of being an asshole and breaking the law.

ObviousScience 12y ago
It doesn't help their case in my mind that they probably broke the law with the seizures they performed: I was using Megaupload to store backups and distribute files I legally owned, such a game maps or documents. During their raids, they seized the funds used to provision the servers, failed to preserve the data, went so far as to prevent efforts on the part of Megaupload to return the data to me, and failed to allow for any sort of process for me to claim it before the servers were destroyed. That data wasn't specifically targeted in a forfeiture action, nor was it specifically accused of being infringing. The US government simply destroyed my data as part of their raid against Megaupload without any concern for the fact I was engaged in legal business with them, and simply using them for remote storage. Nevermind that they induced a foreign government to illegally spy on one of their residents as part of a copyright enforcement action. That's just hideously ugly.
- Fuxy 12y ago
  I would be nice if there was a way to calculate the amount of financial damage the US government did to legitimate users of the Mega Upload Service. The US government should be held financially responsible for these. Plus you could consider the failure of the US governments preservation of Mega Uploads data as destruction of evidence. If the evidence is not present during the trial it didn't exist.
- longlivegnu 12y ago
  Many Americans do not care if the government breaks the law and I'm sure the lawyers will try to justify it in courts.
Symmetry 12y ago
I'm curious why think he's guilty of the charges against him. Now, he's obviously guilty of civil copyright violation and can probably be sued into bankruptcy. But criminal copyright infringement requires mens rea and internal company transcripts show that the people at MegaUpload thought that they were within the law on some technicalities. They weren't but a reasonable belief that they were means that this wasn't criminal copyright infringement.
- corin_ 12y ago
  Not only am I not a lawyer, I also don't know/remember many of the details of this case. And I said likely, not definitely, guilty in my opinion. Regarding mens rea, I imagine it's tougher to argue that you thought you were legal technically than to argue you had no idea you might be breaking the law? E.g. Someone who has never heard of magic mushrooms but find then growing and sells them has a better chance of not being convicted for selling illegal drugs than someone who knows and had researched the laws and thinks they have a technicality to allow them to sell? Of course that's assuming they were wrong about the technicality.
  - new299 12y ago
    Just, in case it's of interest, statements from Kim suggest that he was trying to comply with the DMCA. That all major studios has direct access to the platform to delete links. I personally find the issues unclear, as obviously to a degree as he suggests below, Youtube and other providers are in a similar position: "Well, of course everybody knows that the internet is being used for legitimate and illegitimate uses. I think every online service provider has the same challenges that we have. YouTube, Google, everybody is in the same boat. So what you need to understand here is that we provided the content owners with an opportunity to remove links that were infringing on their rights. So, not only did they have an online form where they could take down infringing links, they had direct delete access to our servers so they could access our system and remove any link that they would find anywhere on the internet without us being involved. They had full access and we’re talking about 180 partners, including every major movie studio, including Microsoft and all big content producers and they have used that system heavily and you need to understand that that system was not even something that was even required by the law. We provided that voluntarily and they have removed over 15 million links." From: http://www.3news.co.nz/tvshows/campbelllive/kim-dotcoms-first-tv-interview-im-no-piracy-king-2012030118#ixzz3PH3S7eWO http://www.3news.co.nz/tvshows/campbelllive/kim-dotcoms-firs...
brudgers 12y ago
They don't need a PR firm. The US public as whole puts up with the lack of due process. They don't have a choice. There are different rules for different persons. Uber and AirBnB are figuring out how to violate local laws. They are corporate persons and are not charged with conspiracy, racketeering or money laundering when spending the proceeds of illegal activities...even in the furtherance of such activity. Kim Dotcom is a natural person who has angered corporate persons. The full weight of the law must be used against him. That's how crowd control is maintained.

brador 12y ago

Might be that thing where in exchange for working for them you get to keep your freedom.

longlivegnu 12y ago
>where in exchange for working for them you get to keep your freedom. I'm not sure that's how freedom works.
- clamprecht 12y ago
  That is how it works, see Federal Sentencing Guidelines Section 5K1.1: http://www.ussc.gov/guidelines-manual/2011/2011-5k11 http://www.ussc.gov/guidelines-manual/2011/2011-5k11 I don't think that is the case with Dotcom at this point.

acqq 12y ago

This was insightful for me: ""Congress, initially as part of the War on Drugs but later expanded to include most federal offenses, criminalized almost every financial transaction that flows from funds that are the proceeds of ‘specified unlawful activity,’" Bruce Maloy, an Atlanta-based attorney and an expert in US extradition law, told Ars by e-mail. "In simplest terms, if you possess funds from a crime and do anything with the money other than bury it in the ground or hide it under the mattress, you have committed a new crime. Spending the money is a new crime, opening a bank account is a new crime. These expenditures do not have to be in furtherance of the original crime, but my recollection is that here it alleged that they are. In short, throwing in a money laundering allegation is quite common in US federal indictments." Page Pate, another Atlanta-based defense lawyer who has also worked on international extradition cases, agreed. "It's almost automatic to add money laundering charges to any offense whether it's drug-related or not," he said. "I haven't seen it that often in criminal copyright cases. The US has been very aggressive in adding money laundering and forfeiture in criminal cases."" Ain't it great, War on Drugs?

corin_ 12y ago
I'm against the war of drugs, but not sure it's to blame here. A law criminalizing the use of illegally-gained funds is a useful law for them in general, and it happened that their big focus at the time was the war on drugs so that's where they'd get the most use from it. But as far as I know, it was never claimed to be only for the war on drugs, and they didn't attach it to the war on drugs as a smokescreen the way they attached the Patriot Act to terrorism. I could be wrong about that, but as far as I'm aware it was an innocent connection to drugs. After all, if you are impeaching civil liberties you may need a smokescreen like drugs or terrorism, but making it illegal to use illegally-gained funds is something I suspect most US citizens would be OK with immediately without the need for deception.
- acqq 12y ago
  So how US managed to survive without that law for all the years? I can't imagine the law was necessary for anything, except that it allowed US to prosecute those who'd be off the hook otherwise. So yes I do believe it was the "War on Drugs" peddled as the rationale for the law: "look these drug guys are slipping away, we have to make a new law and get them with it."

unimportant 12y ago

Tons of money to fight the extradition + him being good at exploiting the US gov hate of the people to make himself look like a freedom fighter instead of the greedy scumbag that he is via well done PR campaigns.

deleted 12y ago
[deleted]