Kim Dotcom’s take on his fight against extradition to the United States makes law enforcement agencies here and there look like the Keystone Cops – but it could become another internet tragedy.

The big man is smarter than the jokey character he assumes for the mainstream media.. He knows exactly what’s happening around the world. The war against internet video piracy and for control of the internet is escalating rapidly to new heights. While he’s fooling around with the bumbling raiders who crashed their way into his panic room, and the FBI agents who ignored a New Zealand court order to retain seized material in New Zealand, the real action is taking place in the United Kingdom, the United States, and soon, Dubai.

Two events in London last week should be ringing alarm bells here. The first is the conviction and four year jail sentence imposed on Anton Vickerman for “conspiring to facilitate copyright infringements” by operating his MegaUpload look-alike Surfthechannel website and providing users with links to pirated copies of films and TV shows. The second is the siege of the Ecuadorian embassy sheltering Julian Assange, the WikiLeaks founder who’s resisting extradition to Sweden to face charges of sexual assault because he fears rendition to the United States where he’s likely to receive much more draconian treatment under US anti-terrorism law.

The Vickerman case shows the determination of the Hollywood film industry to crack anyone associated with an infringement of what they see as their rights. Vickerman’s internet operation was established in 2007. The next year, when the operation built its business to provide 2 million links from just 40,000 in its first year, the UK Crown Prosecution Service investigated Surfthechannel and decided not to prosecute.

According to supportive comment on the Techdirt site, Vickerman’s operation “did not aim to direct users to illegal copies—merely to help users find film and TV content online. There happens to be a lot of it—including legitimate content from a range of sources like Hulu cooperative networks including the Discovery channel and the US-based cable and satellite broadcaster A&E.

After Crown prosecutors dropped their investigation, Hollywood funded the Federation Against Copyright Theft – FACT - to pick up the case. Five years later, they had their eight days in court. They did not charge Vickerman with actually infringing anyone’s copyright – but with conspiring to facilitate infringement. The history of conspiracy trials in the UK suggests that “a nod and a wink” could be enough to prove guilt.

According to news reports, Judge Evans found Vickerman had located files of films and uploaded them to sites, often in China, which he then linked back to on his site, and that forum messages, chat logs and emails indicated that he "knew fine well" that the site was not operating lawfully. Vickerman protests innocence as he heads off to his cell for a five year sentence, leaving a broken marriage and a ruined business in his wake. He has yet to lodge an appeal.

Dotcom has the FBI on his case, not FACT – and you have to wonder why. The charges they are talking about aren’t conspiracy to facilitate infringement. They are actual infringement, money laundering and racketeering. Maybe that’s the explanation for their involvement. They want to limit disclosure of their evidence, but they are going to have to reveal enough to demonstrate their case passes a New Zealand court’s threshold for extradition. Any guidance on what that threshold is would be appreciated.

Back now to the Assange case: our concern for him should not be related to the case he faces in Sweden. It has to be on the Swedish government’s refusal to provide his Ecuadorian government hosts with an assurance that the WikiLeak’s founder would not be transferred to the United States, where there is little doubt that he would be treated in a similar manner to Bradley Manning, the soldier alleged to have leaked a massive and embarrassing  trove of secret US government documents that were published on the Assange website.

Manning has been held in a military brig for 800 days waiting for a court to hear the charges against him. He has been detained for 265 days as a maximum security prisoner under prevention of injury status. According to a court submission by his defence counsel, this means he is held in a windowless 6x8 cell for 23 out of 24 hours, under constant supervision, and only moved outside the maximum security zone in shackles. He is woken at 5:00am and only allowed to sleep with lights on after 10:00pm. Guards may wake him to check him every five minutes.

If the US authorities invoke the provisions of the National Defence Authorisation Act and charge Assange as “a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States “ he too could be subjected to indefinite military detention without charge or trial. Publishing secret documents about the conduct of the war against terrorism could provide sufficient grounds to demonstrate “substantial support”. No wonder Assange is wary and the Ecuadorians who provide him with asylum are protective. 

Meantime, WikiLeaks and the internet video pirates have generated a powerful US military-industrial alliance of interests in more aggressive regulation of the free-flow of information made possible by the internet.

The latest player to join the action is the International Telecommunications Union  [ITU}– an arm of the United Nations. In Dubai next December, it will debate a plan to manage the operation of the internet.

Ironically, it was the US Federal Communications Commissioner Robert McDowell who warned that some of the countries that belong to the ITU—each of which gets a single vote— are interested in restraining the essential freedom of the Internet because it causes problems for dictatorships and autocracies.

At the same time, we need to recall our Prime Minister's statement last year that New Zealand would need the highly contentious internet access banning provision – Section 92 (a) – in the Copyright Act if we want to get a trade agreement with the United States.

There is still a provision for court-ordered suspension of internet access for copyright infringers in our law, but it requires the signing of an Order-in-Council by the Governor General to be activated. That could happen at any time. Perhaps December could be the chosen time. That’s when the Obama schedule sees a Trans-Pacific Partnership in place and the ITU meets on the new internet management regime in Dubai.

We may be laughing along at all of the media-managed buffoonery of the  Dotcom case now.There could be tears beyond Christmas.

Comments (12)

by Graeme Edgeler on August 20, 2012
Graeme Edgeler

Manning has been held in a military brig for 800 days without being charged. He is detained as a maximum security prisoner under prevention of injury status. According to a court submission by his defence counsel, this means he is held in a windowless 6x8 cell for 23 out of 24 hours, under constant supervision, and only moved outside the maximum security zone in shackles. He is woken at 5:00am and only allowed to sleep with lights on after 10:00pm. Guards wake him to check him every five minutes.

1. My first thought was that the allegation guards wake him every five minutes cannot possibly be true. He would be dead. A quick scan of news articles referencing his poor treatments finds no mention.

2. My second was to check the other bolded claim, which seemed exceedingly unlikely, given the availability of habeas corpus. Manning was arrested in May 2010. He was charged in July 2010, and further charges were added in 2011. He has undergone some of the preliminary stages of a general court martial, with others coming up.

by David Beatson on August 20, 2012
David Beatson

Graeme - you are correct in that charges have been laid. I have now read the detailed statement by his defence counsel and amended the copy accordingly. For the sake of accuracy, here is what the defence counsel says about the sleep deprivation Manning has endured during his 265 days as a maximum security prisoner under the prevention of injury regime at Quantico Brig.

"19. Owing to PFC Manning being placed on continuous POI status, he was subject to the following further restrictions:

"a]         PFC Manning was subject to constant monitoring; the Brig guards were required to check on him every five minutes by asking him some variation of, “are you okay?” PFC Manning was required to respond in some affirmative manner. Guards were required to make notations every five minutes in a logbook. See Attachment 40.

"b)         At night, if the guards could not see him clearly, because he had a blanket over his head or he was curled up towards the wall, they would wake PFC Manning in order to ensure that he was okay."

I plead quilty to over-compressing the statement about Manning's treatment, but it still sounds like serious sleep deprivation to me.

 

 

by Ben Curran on August 20, 2012
Ben Curran

One thing I've never understood about the Assange UK/Sweeden/US thing. If the US wanted Assange, why don't they attempt to extradite him from the UK? UK nationals have been extradited to the US before, I don't see why they would have that many qualms about handing Assange over?

Meaning that the whole "Sweeden should promise not to hand him over to the US" thing is irrelevant.

by Thomas Beagle on August 20, 2012
Thomas Beagle

"demonstrate their case passes a New Zealand court’s threshold for extradition. Any guidance on what that threshold is would be appreciated."

According to MFAT, it's a crime that 1) has more than one year's jail in the requesting country, 2) and is illegal in NZ and would have a similar penalty, 3) or is specified by an extradition treaty between NZ and the requesting country.

The information at this link here goes on to discuss the technicalities of authentication, request details, etc. http://www.mfat.govt.nz/downloads/treaties-and-international-law/Extradition-Act-summary.pdf

Furthermore I note that we're taking the next step in internet censorship in NZ. We already have an internet filter and now the Law Commission wants to add a quick-fire Communications Tribunal with the power to order material to be removed from the next.

 

by stuart munro on August 21, 2012
stuart munro

I've a feeling Kim Dotcom has a pretty clear idea of how serious this is. Illegal armed raids and confiscations'll do that to you. We're lucky to have him leading this fight, the rest of our  activist base appears to be bogged down on other issues.

I don't really see the need to legislate on video downloads for NZ - the net is so slow there can't be much traffic to speak of. NZ is being targeted because we have a lame government.

by Andrew Geddis on August 21, 2012
Andrew Geddis

@Ben:

One thing I've never understood about the Assange UK/Sweeden/US thing. If the US wanted Assange, why don't they attempt to extradite him from the UK? UK nationals have been extradited to the US before, I don't see why they would have that many qualms about handing Assange over?

Quite. The pro-Assange response runs something along the lines of "UK law may have some more protections in it, while Sweden doesn't like Assange as much and is a smaller country and so is more susceptible to US pressure." Frankly, I think this is a bit of a stretch ... and there's a nice rebuttal of many of the arguments against extradition to Sweden put up here.

None of which is to deny that the US would love to get Assange and that if they ever did, they would treat him in a way that civilised societies should deplore. And I guess that with this reality lurking in the background, it colours every issue in a particular way (whether or not that is warranted).

by David Beatson on August 21, 2012
David Beatson

I gave up trying to analyse whether Sweden or the UK offered Assange a better opportunity to resist extradition to the US. Opinions seem to differ widely. I came to the conclusion that Assange would not want to be held in custody on any charge in either country since he would then be vulnerable to extradition and an extremely doubtful future in detention in America.  

by Andrew Geddis on August 21, 2012
Andrew Geddis

@David,

That's an entirely valid interpretation. Unfortunately, another valid interpretation is that Assange really, really doesn't want to go to Sweden because there's a non-zero chance he will be convicted of rape due to his somewhat cavalier attitude towards issues of consent. Which then casts him in a somewhat less heroic light.

However, I guess only he (and, given the human capacity for self-delusion, maybe not even he) really knows where the truth lies. Which then leaves the rest of us to translate the matter through our own ideological lenses!

by David Beatson on August 21, 2012
David Beatson

Andrew, that may be a valid interpretation. I'd prefer to reserve my own response to it until the evidence of rape is presented and tested in court. We may both be waiting some time to see which interpretation proves to be correct.  

by Ken Martin on August 22, 2012
Ken Martin

From the perspective of a media consumer, I have gone right off using cloud storage, after noting the difficulties and likely expenses former customers of Megaupload face in retrieving their (often) legal data. Regarding the internet theft of intellectual property, this would not be done if likely customers were able to purchase such material legally for a reasonable fee. Apple and its iTune store prove that, although presently there is a limited range there of, say, live music videos. But movie and music producers want to continue using an outmoded and increasingly ineffective marketing system. The genie is out of the bottle. Consumers are not prepared to tolerate further one-sided restrictive marketing. Ultimately consumer interests will prevail. However, their interests may be set back in the short to medium term by TPP negotiations. Mr Assange is in quite some danger, and is likely to remain so. His future is decidedly unclear. Britain and Sweden, with their overlord America in the background, continue to connive in attempting to prise him from the sanctuary of Ecuador's diplomatic premises. Both refuse to offer an assurance he will not be extradited to America to face charges unrelated to the matters Sweden wants to discuss with him. He is right to fear being extradicted. If he is brought to trial in America, their anti-terrorism laws will be misused, just as Britain misused theirs, when they attempted to hammer Iceland over its debt after the recent financial crisis.

by Ross on August 22, 2012
Ross

there's a non-zero chance he will be convicted of rape

For that to be valid, you need some supporting evidence.

 

by danniel on May 28, 2014
danniel

A controlled internet wouldn't be an internet anymore. We should just find the way that makes everyone happy, I am sure this solution is perfectly possible. I read some interesting opinions about that at the T1 internet providers online board. People seem to be really proactive in keeping the internet free.

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