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Kim Dotcom Loses Latest Round In Extradition Fight, Will Try To Appeal Again

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Kim Dotcom's ongoing legal saga continues. The latest is that the New Zealand Court of Appeal has rejected his appeal of earlier rulings concerning whether or not he can be extradited to the US. Dotcom and his lawyers insist that they will appeal to the Supreme Court, though there seems to be some disagreement about whether or not that will even be possible. The full ruling is worth a read, though much of it is dry and procedural.And, I know that many people's opinion of this case is focused almost exclusively on whether they think Kim Dotcom and Megaupload were "good" or "bad," but if you can get past all of that, there are some really important legal issues at play here, especially concerning the nature of intermediary liability protections in New Zealand, as well as the long-arm reach of US law enforcement around the globe. Unfortunately, for the most part it's appeared that the courts have been much more focused on the whole "but Dotcom is obviously a bad dude..." and then used that to rationalize a ruling against him, even if it doesn't seem to fit what the law says.As Dotcom and his lawyers have noted, this has meant that, while there are now three rulings against him on whether or not he can be extradited, they all come to different conclusions as to why. A key issue, as we've discussed before, is the one of "double criminality." For there to be an extraditable offense, the person (or people) in question need to have done something that is a crime in both the US and New Zealand. As Dotcom has argued over and over again, the "crime" that he is charged with is effectively criminal secondary copyright infringement. And that's a big problem, since there is no such thing as secondary criminal copyright infringement under US law. Since Megaupload was a platform, it should not be held liable for the actions of its users. But the US tries to wipe all of that away by playing up that Dotcom is a bad dude, and boy, a lot of people sure infringed copyright using Megaupload. And all of that may be true, but it doesn't change the fact that they should have to show that he actually broke a law in both countries.Indeed, the lower court basically tossed out the copyright issue in evaluating extradition, but said he could still be extradited over "fraud" claims. Dotcom argued back that without the copyright infringement, there is no fraud, and thus the ruling didn't make any sense.The Court of Appeal comes to the same conclusion, but for somewhat different reasons. It appears that Dotcom's lawyers focused heavily on what some might consider technical nitpicking in reading of the law. Pulling on a tactic that has been tried (not successfully...) in the US, they argued that reading through the text of the copyright shows that it only applies to "tangible" copies -- i.e., content on a physical media -- rather than on digital only files. In the US, at least, the Copyright Act is written in such a way that a plain reading of the law says that copyright also only applies to physical goods, rather than digital files. But, as has happened here, US courts have not been willing to accept that fairly plain language in the statute because it would mess up the way the world views copyright. It's no surprise that the New Zealand court came to the same end result. While it would be better if the law itself were fixed, the courts seem pretty united in saying that they won't accept this plain reading of the statute, because that would really muck things up. Unfortunately, in focusing on that nitpicking, it may have obscured the larger issues for the court.Over and over again in the ruling, the court seems to bend over backwards to effectively say, "look, Dotcom's site was used for lots of infringement, so there's enough evidence that he had ill intent, and therefore we can hand him over to the US." That seems like a painfully weak argument -- but, again, par for the course around Dotcom. So, basically, even though it has other reasons than the lower court, this court says there's enough here to extradite:

We have departed from the Judge in our analysis of s 131.260 But theJudge's conclusions on ss 249 and 228 (the latter of which we will turn to shortly)were not affected by his conclusion on s 131. Each of the ss 249 and 228 pathwaysdepended on dishonesty, as defined, and the other elements of the actus rei of thoseoffences. Inherent in the Judge's finding was that dishonesty for the purpose of s 249(and s 228) did not require proof of criminal conduct under s 131. With that conclusionwe agree. It is plainly sufficient that for the purposes of s 217 that the relevant actsare done without belief in the existence of consent or authority from the copyrightowner. It does not need to amount to criminal conduct independently of s 249.Put another way, dishonestly as defined in s 217 is not contingent on havingcommitted another offence, but is instead simply an element of the offence.
That may be a bit confusing, but basically they're saying it doesn't much matter whether or not there was actual criminal copyright infringement or not, because there was enough "dishonesty" to allow Dotcom to be extradited on other issues.Again, none of this is that surprising, but it does again feel like the courts reacting to how they perceive Dotcom himself, rather than following what the law actually says. That should worry people. At this point, it seems highly likely that Dotcom's attempts to appeal to the Supreme Court will fail and that he will be extradited. Of course, then there would still need to be legal proceedings in the US -- though the judge assigned to his case has already shown little interest in understanding the nuances of copyright and intermediary liability law, so it's likely to be quite a mess here as well.Whatever you think of Kim Dotcom, many of the legal arguments against him seem almost entirely based on the fact that people want to associate him with the actions of his users, and the fact that he didn't seem to much care about what the legacy entertainment industry thought of him. Maybe he deserves to be locked up -- but it's hard to argue that the process has been fair and based on what the law actually says.

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Over The Top Sports Streaming Comes To Europe With Amazon's Deal With The Premier League

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We've made the point repeatedly that one of the last and most important threads on which the current cable television industry is hanging is that of live sports. While cord-cutting is indeed a thing, the many broadcast agreements pro and major college sports leagues have with cable broadcast partners keeps the cord-cutting from becoming a deluge from a burst dam. That being said, small but important steps have begun with many leagues, which are finally recognizing the demand viewers have for over the top streaming options. While there are still far too many restrictions in these sports streaming options, there is no doubt that American sports leagues have begun snipping away at this thread for cable television.And now it this practice is coming to Europe as well. Specifically, Amazon has secured a relatively small but massively important streaming broadcast agreement for Premier League soccer.

Amazon has scored the rights to stream Premier League football (soccer) matches in the UK for three years. It’s the first time that Brits will be able to watch a full day of games on a streaming-only service, and Amazon will offer 20 games next season to Prime subscribers at no extra cost. Amazon has secured one of the smaller packages of Premier League games, but an important one over the festive period. Prime subscribers will get access to the first midweek December games rather than the big weekend fixtures, and Amazon will also be streaming all of the festive Boxing Day fixtures.“This will be the first time a full round of Premier League fixtures will be broadcast live in the UK,” notes Amazon. It’s a deal that will mean British football fans will need to have an Amazon Prime subscription to watch any Boxing Day matches live. Boxing Day is a public holiday in the UK, and it’s a big day of football matches. It’s also the day after Christmas Day, when most British football fans will sit around in their pajamas and feast on leftover Christmas dinner food and watch matches live.
The plans Amazon has for this specific broadcast agreement obviously revolve around more than just revenue from the matches themselves. The timing of the games is key, centered around the post-Christmas holiday. Amazon will be pushing the public to sign up for Amazon Prime so that they can stream these games, while at the same time pushing those same customers to do their holiday shopping on Amazon as well. It's a way to gobble up marketshare in a fairly ingenious way.But the greater overall effect could be on the cable industry in Europe. Imagine if the viewership numbers for these streaming games compares favorably to broadcast cable television numbers. Suddenly, the Premier League will have found a brand new partner to show its games, one that is motivated by more than just selling advertising during commercial breaks. There's a synergy there that cable TV simply can't have. And, of course, the public would have far less use for cable TV if it can get its sports via streaming.This trend has and will continue. And it doesn't look good for the cable industry.

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