Independent legal opinion on the Dotcom decision

www.radionz.co.nz
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.  

 

 

Oh how extremely useful for me, and how inconvenient for those behind Dirty Politics as case law is starting to slowly increase the repercussions for stealing people’s data.  The fact that Hager then leveraged my property to make money off it is even more absurd.

Once I get the current cases out of the way, I expect to have some more time on my hands.  I suspect I will at least need to consider the idea of having Mr Hager face a court for dealing in stolen property with a fair degree of malice of forethought I might add.

But back to Mr Dotcom (although they are in the end inextricably linked)

  • The analysis of the computer crime provision in section 249 of the Crimes Act is interesting and may come as a surprise to some. The section forms part of a series of provisions which were brought in primarily to deal with hacking and other forms of unauthorised access to, and use of, computer systems. Here however, the High Court holds that by sending misleading emails to copyright owners, advising that digital files that were the subject of the copyright owners’ takedown notices had been removed (when they had not been removed), the appellants have accessed a computer system for a dishonest purpose. That purpose being to mislead the copyright owner into thinking the allegedly infringing digital file has been removed when, in fact, it is retained on the Megaupload or Megavideo platform. There is no need for unauthorised access by the appellants. As long as there is a dishonest purpose and “property, privilege, service, pecuniary advantage, benefit, or valuable consideration” (required under section 249), is obtained as a result, it does not matter whose computer system is used. In this case, the appellants were using their own computer systems to send the allegedly misleading emails. One can therefore imagine section 249 being added to any charge sheet where a computer system has been used and some advantage obtained by deception or dishonesty. Note here that computer system is defined widely and includes the internet.

Dotcom is going to get extradited.  There is no need for the Copyright charge to stick as a pre-cursor to the fraud and racketeering charge.

But with no hint of irony, his case has hugely assisted me in any situation where I face the people who have used my legal property… illegally.   Thanks Kim!

 


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