Independent legal opinion on the Dotcom decision
Author Nicky Hager holding the proof of having created a commercial product from my property.

Rick Shera writes

Apart from the overall decision itself that the appellants are eligible for extradition, a few very interesting things that leapt out:

  • We’re already starting to see the impact of the Supreme Court’s decision in Dixon (Dixon v R [2015] NZSC 147), that digital files are property. With that finding in hand, it now becomes a simple matter to find that “property”, when referred to in any provision of the Crimes Act, refers to digital material. So, in Dotcom, the High Court finds that the there would be a prima facie case under New Zealand law that the appellants have obtained property (the alleged infringing copies of films) by deception under section 240 of the Crimes Act 1961 and therefore that that provides a “pathway” for extradition. One wonders how long it will be before we see a civil action for conversion of digital files.

Digital files being property will be very useful in any future legal encounters where I get to question Mr Hager on the use of stolen property. ? And then making money from it. ? Read more »

Get used to wearing orange, fatty

Get used to wearing orange, fatty

Bye, bye Fatty, been a pleasure knowing you, not.

Kim Dotcom can be extradited. Next stop Leavenworth, stainless steel jewellery and an orange boiler suit.

Kim Dotcom and his three co-accused are eligible for extradition to the US, the High Court has ruled in a decision just released.

The US Government has been seeking to extradite Dotcom, Mathias Ortmann, Bram van der Kolk and Finn Batato to face trial on 13 counts, including allegations of conspiracy to commit racketeering; copyright infringement; money laundering and wire fraud since 2012.

In the High Court finding released today, Justice Murray Gilbert upheld a decision by the District Court that there were grounds for the quartet to be extradited, ? Read more »


Dopey Colin Craig decides to appeal his District Court shellacking

Colin Craig has decided to appeal the shellacking he received?in the District Court.

Kelly Dunnett from Fairfax has the details:

Former Conservative Party leader Colin Craig has served notice of his intent to appeal?a judge’s decision to dismiss a lawsuit he took against a blogger for publishing a poem he wrote to his former secretary.

At a December hearing at the Auckland District Court Judge Mary Beth Sharp threw out Craig’s efforts to seek damages for “unauthorised infringement” of alleged copyright interests in a poem he wrote entitled Two of Me.

It was said to be part of an 11-page letter he wrote to ex-secretary Rachel MacGregor, containing several poems.

Judge Sharp made an oral judgment at the December hearing and?has now released a formal decision, canvassing her reasons for the dismissal. That included her ruling that Craig’s proceeding was?”vexatious” and that he had an “ulterior purpose”.

Craig?sought $5000 in damages plus $3000 for every month Whale Oil blogger Cameron Slater had a copy of the poem on his blog, and also sought damages from Taxpayers Union director Jordan Williams for giving a copy of the poem to Slater in the first place.

Craig also asked for an injunction?preventing further publication of the ode. He represented himself in the proceeding.

Read more »

The judgement arrives: Colin Craig cops another one in the chook

Colin Craig contemplating yet another loss

Regular readers will remember that we attended court on December the 6th last year to strike out Colin Craig’s vexatious claim of copyright?against us and Jordan Williams. The judgement has finally arrived and Judge Sharp has recorded all of her comments that were made at the time which we reported.

The judge summarises the history in the first nine pages before getting into the arguments. The judge found Craig’s argument that his poem was worth a lot of money to be “specious.” This can be found at the top highlighted in red on page ten. This was the start of what became a march against Colin Craig.

At paragraph 43 the Judge states ” There is no evidence before me of any sort that there is any value in this work or that either of the defendants derived any income at all from it, from publishing it.” She also stated that it was obvious to her ” that the plaintiff would fail at substantive trial in establishing that in fact, either of the defendants had monetarily profited from their publications of this work. ”

Read more »

Eminem v John Key back in court

Well, it?s a recording company suit and a National party drone, but it goes to show how slowly the wheels of the justice system turn.

Lawyers for American rapper Eminem and the National Party were back in court today, over the copyright of music featured in the party’s TV advertisements during its 2014 election campaign.

Eight Mile Style LLC and Martin Affiliated LLC, Detroit-based publishers of Eminem’s copyrights, accused the party of using backing music to the rapper’s song Lose Yourself, from his 8 Mile album.

Greg Arthur who appeared for the party, told Justice Brendan Brown in the High Court at Wellington he wanted to split trial into two parts – one for liability and one for damages.

Mr Arthur said the two issues were “clearly divided” and a split trial would save the time spent in trial.

He said the liability trial would take about two weeks, possibly more, but calculating damages “wasn’t straightforward” so liability should be established first.

Garry Williams representing Eight Mile Style LLC and Martin Affiliated LLC, disagreed, saying his clients wanted a single trial.

He said the assessment of damages wasn’t complex and it could be dealt with in a single trial.

“They are issues that arise in copyright cases all the time,” he said.

Justice Brown held off his decision and gave the parties the opportunity to come up with a resolution by March 23.

Read more »

Paypal blocking payments to VPN and SmartDNS services but you can use it to buy other ‘bad’ stuff

Paypal has announced that they are stopping processing payments for?users of?VPN and SmartDNS services ostensibly because they say it is enabling?copyright infringement, such as geo-blockades, which are violating its terms of service.

PayPal is widely known for their aggressive stance towards?BitTorrent sites, Usenet providers and file-hosting services, but VPN, proxy and SmartDNS providers might now suffer the same fate too.

This week PayPal stopped accepting payments for a company that provides VPN and SmartDNS tools, stating that these may facilitate copyright infringement.

So-called ?unblocker? tools can be used to bypass geo-filtering blockades which Netflix and other video platforms have in place.

According to the message PayPal sent to UnoTelly and possibly others, these services are against the company?s policies because they help users to bypass copyright restrictions.

?Under the PayPal Acceptable Use Policy, PayPal may not be used to send or receive payments for items that infringe or violate any copyright, trademark, right of publicity or privacy, or any other proprietary right under the laws of any jurisdiction,? PayPal?s email reads.

?This includes transactions for any device or technological measure that descrambles a scrambled work, decrypts an encrypted work or otherwise avoids, bypasses, removes, deactivates or impairs a technological measure without the authority of the copyright owner.? ?? Read more »

Fatty German Sausage export halted until at least October

Kim Dotcom

Kim Dotcom

Kim Dotcom continues to waste court time with pointless appeals.

His appeal for the extradition decision will now be heard in August this year.

The appeal against the decision to extradite Kim Dotcom and his fellow Megaupload co-accused Mathias Ortmann, Bram van der Kolk and Finn Batato will be heard in August.

In December, Judge Nevin Dawson ruled there was a case to answer in the copyright violation, money laundering and racketeering charges brought by the US government against the Megaupload founders. ? Read more »

Get ready for the next media-driven TTPA storm in a teacup: copyright cost

Apparently, the copyright changes will cost every man, woman and child about a $1 a month – roughly. ?Or, if you add it all up, $55m a year.

Not that you’d notice mind you.

New Zealand consumers could face higher costs than first predicted as a result of copyright changes in the Trans Pacific Partnership, newly released documents show.

The 12-country trade deal, which is expected to be signed off by leaders in Auckland next month, is estimated to have net economic benefits for New Zealand of up to $2.7 billion per year from 2030.

The biggest costs will come from concessions on copyright. The Ministry of Foreign Affairs and Trade (MFAT) says the cost to consumers and businesses of extending the copyright term from 50 years to 70 years will eventually rise to around $55 million a year.

However, Treasury advice released to the Labour Party under the Official Information Act showed there was uncertainty about this estimate.

Oh look, a Labour Party-driven, Media-boosted ?beat-up.

So, what this means is that the movie you want to buy that’s?already 50 years old,?or the book you want to buy from an author who’s already been dead for 50 years, will now attract a copyright charge for an additional 20 years. ? Read more »

Copyright comes off Mein Kampf – German sales go through the roof

Hitler’s anti-Semitic manifesto Mein Kampf will be on sale in Germany on January 8, for the first time since World War II.

In accordance with European law, a copyright expires 70 years after the death of the author, whereupon the published writings are officially in the public domain.

A team of six scholars from the Institute of Contemporary History in Munich led by Christian Hartmann will release 4,000 copies of the now 1,984 page book, which will include 3,700 critical annotations by the historians to demystify Hitler’s propaganda.

In the face of controversy over their decision to publish a new version of the book, with critics saying you can’t “annotate the devil”, the academics arguedthat the world is better off with their version in the mix.

“We are like a bomb disposal unit, rendering relics from the Nazi-era useless,” the author told ZDF, a German TV station.

“It’s 90 years since the book was written, so it has lost its power to influence people,” Hartmann commented further on the Heute current affairs show.

“Specific topics covered in it are forgotten in history,” Hartmann said. “We now have a critical reference to the book, which will work internationally.”

I understand the book and its author have left a huge gash in?the nation’s psyche, but I’ve never really supported the idea of banning the book. ?You might as well ban shoes because Hitler wore them. ?? Read more »

Why Dotcom’s appeal is forlorn

Yeah Kim, those cuffs are for you

Yeah Kim, those cuffs are for you

Kim Dotcom and his lawyers were full of bravado yesterday, claiming they will appeal. They can and have.

But I think if they, and it would be helpful if the media did as well, read the judgment there is one damning paragraph from Judge Nevin Dawson that they should take heed of.

[698] This eligibility Court has received an extraordinarily large volume of material to consider, and the hearing took over 9 weeks before completion. The parties were informed by this Court that all matters relevant to this eligibility hearing would be heard at the hearing and decisions would issue accordingly. At the end of the hearing, all parties confirmed to this Court that none of them had any further issues they wished to raise.

[699] Given the very large volume of material presented during the hearing it is not possible to issue decisions that would be less than encyclopaedic in length in order to cover every minor point alluded to in the hearing. There is no need to do this. Much of the material presented to this Court has not been relevant to an eligibility hearing and a number of the submissions were unsupported by appropriately sworn evidence. They do not come near to undermining the applicant?s case or point to a breach of the duty of candour and good faith. If some aspects of the parties submissions or evidence has not been referred to in this judgment that is because it was not relevant to the decision given.

That is legal speak for saying that screeds of what the defence produced to support their application was irrelevant and unsupported by facts. Horse-shit in other words. ? Read more »