5 aspects of the hunt for Kim Dotcom that make no sense

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online piracy

In January 2012 the United States confiscated the domains (and servers) of MegaUpload, a file-sharing and storage site based in Hong-Kong a few days after arresting Kim Dotcom, the owner of the multi-million dollar business. In short, the sites were shut down by the US on the indictment of the owners for running a criminal organisation centred on copyright infringement.

Dotcom (born Kim Schmitz) has recently taken to Twitter to raise his objections to not only the way he was treated, but the entire hypocrisy of the case. I may just have to agree with him.

While I fully understand the rights of copyright holders to find and hunt down copyright infringers, I have concerns about how things are being done.

Here are five things that make no sense to me:

1. The USA doesn’t own the internet. MegaUpload had its servers based in Hong Kong. It was a Hong Kong registered business and he was living in New Zealand. He doesn’t even have US citizenship. So by what rights did the FBI have jurisdiction on invading his New Zealand home, confiscating all his possessions and insisting on an extradition to the US for breaking US Laws?

Can I be tried in the US for driving on the left side of the road in South Africa or Great Britain? My conclusion follows the same logic. The law in the US says I must drive on the right-hand side. I haven’t broken any laws in SA, but I have, technically, broken a US law (even though I’m not in the US). Will the FBI confiscate my car?

So what exactly was it doing in New Zealand?

2. The FBI removed all his computers from New Zealand, without permission, to be investigated by its team. This even after a New Zealand judge ruled it illegal. Again the USA seems desperate to enforce its idea of justice on another sovereign land with complete disregard for the local lawyers.

3. The US has frozen every penny of his assets. This may make sense. If his assets are the results of ill-gotten gains, then he shouldn’t have the right to use them. But at the end of the day, let’s say for example he is found guilty, who gets to keep the US$175-million? The USA? And why should it get it, and not the New Zealand government? Or would it actually go to the copyright holders?

The end result of freezing his assets though, is that he is actually denied the right of hiring a capable attorney. In fact the Department of Justice has said that he should not have the right to choose his own counsel as this would be conflict of interest for copyright holders. He may even have to resort to a court-appointed attorney (paid for by the US Government? Sounds absurd!) What happened to “innocent until proven guilty”?

4. Kim Dotcom is accused of owning a computer system that allows people to store large amounts of data on it, and then share it between people. So, for example, companies could use the system for cloud-storage. Architects, for example, could share blue-print files across multiple offices/countries/continents.

The problem is that people used his system for stories copyrighted data, like movies, mp3s, etc and sharing it between each-other. Kim Dotcom’s crime, then is classified as “secondary copyright infringement”, basically because he owned the system that enabled copyright infringement, he is guilty of the infringement.

Sounds about right, doesn’t it? However, the fact that the US has no criminal statute for copyright infringement.

5. My final thought is what happened in the New York Supreme Court last week, in a case regarding the DMCA (Digital Millennium Copyright Act — in the US) and Grooveshark, a music sharing site. The court said that internet service providers like YouTube, Pinterest and Grooveshark are protected by broad “safe harbour” claims of copyright infringement based on user-uploaded content.

Hey wait! Isn’t that what MegaUpload did?

From what I’ve read online about Dotcom, he doesn’t exactly sound like a nice guy. He seems to have dodged the law on a few occasions and made millions through insider-trading.

But I have to admit that his case highlights a few major concerns for me, most notably the United States’ insistence that it should own and police everything that happens online. As countries develop we become more dependent online. We store our lives in the cloud. Even governments are moving to store our personal records, our lives, our tax records, everything on the internet.

So who exactly decided the US should police what we do online?

Photo credit: Big Stock

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