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Old 30-05-12, 02:11   #1
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Default Megaupload Wins Crucial Evidence Disclosure Battle With US Govt.

Megaupload Wins Crucial Evidence Disclosure Battle With US Govt.
by Ernesto

A New Zealand court has ruled that the U.S. Government must hand over the evidence they have against Megaupload so Kim Dotcom and other employees can properly defend themselves against the pending extradition request. The U.S. refused to comply but Judge Harvey concluded that this would be unfair. He further noted that the entire U.S. case stands or falls on the strength of the alleged copyright infringement charges.

megauploadAs widely reported, Megaupload founder Kim Dotcom and the rest of the “Mega Conspiracy” stand accused by the US Government of running a criminal operation.

Charges in the indictment include engaging in a racketeering conspiracy, conspiring to commit copyright infringement, conspiring to commit money laundering, and two substantive counts of criminal copyright infringement.

The prosecution is hoping to have the defendants extradited to the U.S., but following a ruling by New Zealand District Court Judge David Harvey today, this will prove to be more complicated than expected.

In an 81-page decision, Judge Harvey ruled on a request from Megaupload’s legal team for the U.S. Government to reveal what evidence they have on the defendants. In other words, Megaupload wants to see the extent to which the U.S. authorities can back up their criminal charges.

The U.S. Government objected to the request arguing that Megaupload doesn’t have the right to disclosure in the extradition process, but Judge Harvey disagreed.

He ordered the disclosure of all documents related to the alleged criminal acts, not just those in the possession of New Zealand police, but all files held by the FBI and other U.S. authorities as well.

Much of today’s ruling looks into procedural issues, but Judge Harvey also makes some interesting remarks on the way the U.S. is handling this case. He notes that if the U.S. has its way the extradition process would be merely “administrative”, as opposed to “judicial”. This would interfere with the rights of the accused, who according to Judge Harvey should have the right to review the evidence so they can argue against it.

“In my view there must be fairness and the hearing and balance must be struck, otherwise the record of case becomes dominant virtually to the exclusion of everything else and places the extradition process in danger of becoming an administrative one rather than judicial,” the verdict reads.

The Judge further grants disclosure of evidence related to all the criminal charges, and notes that the allegations of the U.S. Government are rather complex. For example, the authorities are applying civil copyright concepts in a criminal context. Furthermore, he notes that the copyright infringement changes are the cornerstone, in the sense that the money laundering, wire fraud and racketeering charges are all based on the alleged copyright infringements.

“There is a complex factual matrix and justiciable issues are complicated by the fact that the United States is attempting to utilize concepts from the civil copyright context as a basis for the application of criminal copyright liability which necessitates a consideration of principles such as the dual use of technology or what they described as significant non-infringing use,” Judge Harvey writes.

“The existence of criminal copyright charges is a keystone to providing the unlawful conduct element of the racketeering, money laundering and wire fraud charges.”

Judge Harvey concludes with an order for the US Government to hand over all documents related to the charges within 21 days.

This is a significant victory for Megaupload, and not only because they can now build a better defense against the extradition as well as any U.S trial. The comments made by Judge Harvey also suggest that without proper evidence of criminal copyright infringements against the accused, there’s not much left of the case. And as Kim Dotcom revealed earlier, this evidence might not be that strong.

Boy do I love to see this and I'll be getting to the why's really quickly.

First off, there is the problem in the US that both the government and the copywrong industry has taken, that the law should somehow be secret. How in the world can you follow the law if you don't know what it is? Part of knowing the law is knowing why the courts ruled what they ruled with the evidence to back up the reasoning. Saying just that 'we said so' doesn't cut it.

From the government you start hearing about National Security and how all the data should be under court seal. Or that national trade treaties that deal with IP properties should be secret. Only the only people getting input into those trade treaties are those with vested interests. No one representing the public is getting any input or output from them and no one in any of the foreign governments are getting input into things that they need for their own countries to be legal. This in essence is why these proposed treaties like ACTA are failing.

The government in the form of the DOJ has started following a practice of stonewalling. Get the information, lock it up, delete or limit what is then available so that they have a more sure case. The prosecutors have also started mixing and matching charges, as demonstrated in this article of wanting some charges stemming from civil law and some stemming from criminal law. The problem with that is they are very separate and very much different in what those charges are and what can be done. There is also the problem that civil has a lower standard of proof. In criminal law in the US the standard is guilty beyond a shadow of a doubt, where civil law requirements are merely, probable given the facts that it occurred.

But you can not mix and match these two. The issue will eventually be uncovered that the copywrong gang pushed the US to action and the government did whatever they demanded without really checking up on the case themselves. One of the past issues with charges has been that government investigators have not investigated themselves but rather took the word of the copywrong gang that it was somehow illegal. This is what has happened with the domain confiscations. In the domain confiscations as I have explained before, you can only seize and hold property for one year. This in preparation for charges and a trial. At the end of the year, either the property is returned or held for evidence for the pending court case. It is the position of ICE that if a domain owner wants it back, they have to bring it to court. That isn't what the law says. They are banking on the idea that most of these domains aren't worth the money fighting it in court will cost.

On the whole, the judge is right to hold the US to it's own laws. One that the government doesn't want to do because it's case is weak if it has to follow the law it acted under. No one on the legal side actually investigated the operations of Megaupload or you would have heard about it. Instead what has happened is the usual of the copywrong gang screaming it's head off for the government to do something and something was done; illegally. It's a shame a foreign government has to make the US own up to following it's own law, which should be its own standard.

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