The Court confirmed that the principle of dual criminality is alive and well -- but that didn't save Dotcom, even though New Zealand doesn't have a specific law criminalizing copyright infringement.
Legislative history, English and Canadian authority and principles of extradition law all suggest that the conduct with which a person is charged must be criminal under both United States and New Zealand law before they can be extradited.
In making that finding, the court overuled a Canadian case, Cullinane v United States of America [2003] 2 NZLR 1 (CA) is overruled.
So on what grounds did they authorize the extradition?
The United States relied on a range of extradition pathways in seeking the extradition of the appellants. The Court has confirmed all of these extradition pathways are available to the United States, and that the United States has tendered sufficient evidence to support their case on those pathways.....
....Turning to the particular pathways relied on, the Court disagreed with the High Court Judge and held s 131 of the Copyright Act could be relied on by the United States. It rejected a submission from the appellants that Parliament has chosen not to criminalise copyright infringement, and held a criminal offence is committed by anyone who knowingly possesses an infringing digital copy of a protected work in the course of a business with a view to committing any act that infringes copyright. Criminal copyright infringement is also possible under certain offences in the Crimes Act 1961, such as dishonestly accessing a computer system.
Possible? Under a statute by punishing a different crime? How is that dual criminality?
Then the court held that it wasn't necessary for the U.S. to show the copyright status of the infringed upon works. In other words, it's ok to extradite Kim Dotcom for copyright infringement even without a showing the works he infringed on were subject to a copyright.
The Court then held that the High Court Judge was right not to require proof of the copyright status of the works the appellants were said to have infringed. Extradition law focuses on the core criminality alleged, and matters that are not part of that core criminality are transposed from the requesting state into New Zealand law and assumed as part of the extradition process. Copyright status is such a matter but, even if it is not, the Court considered the evidence was sufficient on the point.
So Kim Dotcom can be liable through osmosis?
Alice in Wonderland, indeed.
Dual criminality is required but it's okay that NZ doesn't criminalize copyright infringement because there are other NZ offenses that possibly could cover it.
There's no need to to prove any specific work were in fact copyrighted in order for Kim Dotcom to be extradited for copyright infringement
There's no need to review the illegal conduct the US and NZ engaged in to obtain the evidence to search, indict and seek to extradite Dotcom and his partners, because that's a trial issue for the U.S. to decide.
So the FBI and cops in another country can illegally intercept your communications and throw due process down the drain because NZ has no problem ignoring the U.S. exclusionary rule and considering illegally obtained evidence in deciding whether you should be extradited.
Kim Dotcom will be appealing this ruling to the New Zealand Supreme Court.
Six years of litigation and still no final decision. Does anyone even remember MegaUpload? I do.
