If the FBI’s case against Kim Dotcom is so strong, then why hasn’t he been extradited yet? Larry Williams and Cam Slater disagreed with me on Newstalk ZB tonight when I said he had to be accused of a crime that is also a crime (carrying a similar sanction) in New Zealand.

Andrew Geddis please advise, but here’s what the Ministry of Foreign Affairs says about extradition:  Anyone can be extradited, even if we don’t have an extradition treaty with that country. The extraditing country must meet these criteria:

“Any request for extradition from New Zealand must relate to an “extraditable offence” which is defined as an offence that:

• Carries a maximum penalty of not less than one year’s imprisonment in the requesting country; and 
• Involves conduct that would be regarded as criminal had it occurred in New Zealand, and would have carried a similar penalty. 
• Is specified by the extradition treaty, if there is one.

[My emphasis.]

So it looks like Herr Dotcom would have to be guilty of something that is also a crime in New Zealand.

According to the FBI’s 191 page ‘summary of evidence’, Dotcom is guilty of copyright infringement, money laundering and racketeering. All of which are crimes in New Zealand and carry possible prison sentences of longer than five years. 

The claimed offences pass a threshold then. Even copyright infringement carries a fine of not less than $10,000 per infringement but not more than $150,000 per piece of content infringed, and a jail sentence not exceeding five years.

But it’s not so clear that Dotcom has broken this law, here, in the US or anywhere. The 1994 Copyright Act looks to me like it was designed to catch people who actually copy a DVD or a piece of copyrighted content and then sell the copies. 

Imagine a firm renting out storage units. Even if ‘Dotcom Mega-Storage’ knows that some units contain stolen goods, he might not be charged with possessing stolen goods – even if he tells them to change the locks to stop people looking, or offers them another unit if their unit is under surveillance, or gives out special offers to those who store more stolen goods with his firm. He’s not a police officer. It’s not his job to arrest the bad guys. 

That’s why he hasn’t been extradited yet: No prosecutor will have an easy time showing his digital storage facility amounted to an intention on his part to rip people off, or that running such a facility would send you away for a year in Paremoremo.

It’s harder still when the evidence the FBI is relying on keeps being excluded for having been unlawfully obtained. So far, the only people who have been shown to have broken the law are our police.

Despite all the emails and skype chats gathered by the FBI, which claim to show that Dotcom and his fellow defendants were a criminal network and that their goal was always to design a site to distribute copyrighted material illegally... Despite all the FBI claims that Dotcom and others discussed ways to give cash rewards to their biggest uploaders (wow, Rewards as incentives? Arrest Fly Buys.)...  Despite FBI claims they disabled internal search of files stored on Megaupload, creating a ‘cyberlocker’ site’ (where copyrighted content was hidden and available via a backdoor) the FBI are struggling to make a case stick. If they could, then they’d have one against Google, youtube, iCloud and Amazon.

A Dotcom conviction could break the internet. Maybe that’s the point.

Melanie Jones, in the International Business Times, explains why the case against Dotcom is weak by comparing it to another big lawsuit; Viacom v. YouTube:

“In 2007 one of the largest media companies in the world, Viacom Inc., filed a lawsuit against YouTube and its parent Google, which accused both of massive, brazen copyright infringement.

“Viacom argued that the video-sharing site, which allows users to upload, view and swap video files, was engaging in intentional illegal activity by displaying and reproducing Viacom-owned materials without having any right to the content.

“It argued, convincingly, that the defendants in the case not only knew that copyright infringement was taking place, but that the site's hosts would often engage in, promote and induce copyright violations. The corporation's lawyers even asserted that YouTube had built up an entire library of illegal materials that it used to increase traffic and advertising revenue.”

Sounds familiar doesn’t it? But Viacom lost. The judge ruled in favour of Google and YouTube:

“Judge Stanton essentially moved to distinguish the hosts that run a file-sharing site from the activity of the millions of users the site provides a haven for.”

“(The Judge said).....the onus is on the copyright holders, not the site's owners, to seek out what materials are being illegally uploaded and swapped and to move to have them taken down.”

If the FBI case is weak, that begs the question, why are the New Zealand Police continuing to pursue it? The New Zealand government better hope that Dotcom doesn’t get extradited and then win his case, because the damages owed will be in the millions. It was our police who shut down a multi-million global business. It’ll be New Zealand tax payers who pay the reparation.

I’m not defending Dotcom. He’s a convicted fraudster, a narcissist and apparently a libertarian with revolutionary fantasies.

I’m just not sure this is our fight. I doubt he’ll be leaving us in a hurry anyway. The next extradition hearing is scheduled for July.