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Wednesday, 30 May 2012 11:57

Kim Dotcom has a victory in court

Written by Nick Farrell



US government has to hand over evidence


A New Zealand court has told the US government that if it wants to extradite Megaupload founder Kim Dotcom and his co-defendants from Godzone it is going to have to show a bit of the evidence.

The US expected that after the New Zealand police had done what they were told and arrested Dotcom with out asking questions, the New Zealand judiciary would roll over too.  Fortunately they were mistaken. A New Zealand judge ordered the United States government to hand over evidence the defense will need to prepare for an upcoming extradition hearing.

The US insisted that the defendants should make do with the information about its case. The judge's comments in the 81-page decision suggests that he is conscious of Dotcom's trying circumstances and the unusual nature of the case against him. Judge David Harvey said that actions by and on behalf of the requesting State have deprived  Dotcom and his associates of access to records and information.

Judge Harvey wrote, "does not have access to information which may assist him in preparation for trial." The case did not appear straight forward either.  The Judge noted that the United States was attempting to utilise concepts from the civil copyright context as a basis for the application of criminal copyright liability. This means that he will have to think about principles such as the dual use of technology and what they be described as significant non-infringing uses.

Already Judge Harvey has indicated that it is not possible to have a criminal Grokster. In civil cases like Grokster, defendants faced only financial penalties, not jail time. Judge Harvey must still determine whether the US government has a plausible case for Dotcom's guilt. With a trove of documents furnished by the United States, the Dotcom legal team will be better positioned to argue that it doesn't.

Nick Farrell

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