U.S. Government Ordered to Hand Over More Evidence in Pursuit of Megaupload

Kim Dotcom Mona Schmitz Leaving court - H 2012
Fairfax Media/Getty Images

Kim Dotcom Mona Schmitz Leaving court - H 2012

A New Zealand judge has ordered authorities to disclose more evidence against Kim Dotcom and fellow Megaupload employees.

Judge David Harvey will soon be weighing whether to extradite those allegedly involved in what has been termed the "Mega Conspiracy," the largest criminal copyright infringement action in U.S. history. Before that happens, the judge says that it is only fair that Megaupload's defense lawyers get an opportunity to prepare.

"Actions by and on behalf of the requesting State have deprived Mr. Dotcom and his associates of access to records and information," writes the judge in a 81-page decision.

VIDEO: 6 Outrageous Kim Dotcom Moments

The U.S. government has already introduced in its indictment some evidence in its possession that will likely be used to try to convict Dotcom and his colleagues of copyright infringement and racketeering. For instance, there's the now infamous e-mail by Megaupload programmer-in-charge Bram Van der Kolk that says, "We have a funny business...modern day pirates :)"

But Judge Harvey says that isn't enough.

Among the documents that the judge has ordered to be disclosed are copyright ownership records, records obtained from covert operations by agents to identify infringements on Megaupload's network, communications between copyright holders and Megaupload, communications between Megaupload employees and users, documents relating to Megaupload's operation and records of Megaupload's financial transactions.

STORY: Megaupload's Kim Dotcom: Inside the Wild Life and Dramatic Fall of the Nerd Who Burned Hollywood

In coming to the decision, the judge notes that there is nothing in the extradition treaty between the U.S. and New Zealand that relates to the disclosure of documents and says "there has been some debate as to whether or not extradition proceedings are of themselves criminal proceedings or something in between the civil and criminal jurisdiction of the Court."

Judge Harvey says he himself sees the extradition hearing as being akin to a criminal proceeding and thus, "the right to adequate time and facilities to prepare a defence in my view is entirely consistent with the nature of extradition proceedings."

At the extradition hearing, scheduled for August, the judge will weigh whether the U.S. government has a plausible case against Dotcom. In his decision, the judge hints of some skepticism. For example, he writes:

"As I have already observed this is a case that is more complex than many. There is a complex factual matrix and the justiciable issues are complicated by the fact that the United States is attempting to utilise concepts from the civil copyright context as a basis for the application of criminal copyright liability which necessitates a consideration of principles such as the dual use of technology or what they be described as significant non infringing uses."

In a separate order, the judge has also allowed Dotcom to remove his electronic monitoring device and move back into his mansion. The judge says he's no longer a flight risk and so he'll be able to move with his wife from a smaller property adjacent to his home to the bigger mansion that's been estimated to be worth about $23 million. According to the Sydney Morning Herald, the bail conditions were previously relaxed so he could record a music album, although he's still under the obligation of having to send to officers a photo of himself in the recording studio anytime he leaves his home to record.

E-mail: eriq.gardner@thr.com

Twitter: @eriqgardner