Hey, Kim Dotcom! This game is getting serious...

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.