The FBI killed Megaupload in 2012 and had New Zealand police arrest Kim Dotcom. Photo / Getty Images
The FBI killed Megaupload in 2012 and had New Zealand police arrest Kim Dotcom. Photo / Getty Images
COMMENT: They sat there on a high bench and plotted, supremely.
What if, said Justice Susan Glazebrook, there was a novel Justice Dame Ellen France has been writing and it was on her computer.
And what if, she continued, I went onto her computer and took it.
Where the Megaupload case goes, discussion on copyright follows. This week, it has come to the Supreme Court in Wellington, chapter and verse.
The FBI killed Megaupload in 2012 and had New Zealand police arrest Kim Dotcom, Mathias Ortmann, Bram van der Kolk and Finn Batato in Auckland. The US wants to have them extradited and tried over an alleged, vast, US$500 million ($757m) copyright violation.
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Megaupload was Dotcom's vision, a website which could host files and create links to those files. The vision came to life through computer coders Mathias Ortmann and Bram van der Kolk and was then sold by marketing expert Finn Batato. They face the prospect of decades in prison.
What if, said Glazebrook, I took 50 copies of France's novel down to the street corner and sold the book.
What if, she said, she conspired with Chief Justice Helen Winkelmann to take the novel.
Winkelmann looked up. France did not. Her judgments offer more than many novels on best-seller lists. They are clear and insightful. They describe a landscape, often fill it with real people and their actions then, carefully, bring an inevitable conclusion. There is balance and structure, logic and reasons.
What if, said Justice Joe Williams, I were to take my wheelbarrow and load 10 copies of the stolen manuscripts into it.
Megaupload accused Finn Batato, Kim Dotcom and Mathias Ortmann arriving at an earlier court appearance. Photo / File
What if, he asked, I were to push it to the street corner where Glazebrook is selling the book and get paid for my efforts.
The Supreme Court mulled it over. Williams rattles off clauses and sub-clauses of legislation which would capture his, and the other justices, illicit copying.
"The Megaupload business," said Grant Illingworth QC, stressing the word "business". "The Megaupload business had records of what was going on."
Was Megaupload a business? Was it a criminal conspiracy? Was it Justice Joe Williams with a wheelbarrow getting paid to take cheap copies of Justice France's novel to the street corner, where Justice Glazebrook was selling it off?
Illingworth, lawyer for Ortmann and van der Kolk, likened it to a photocopier. They owned it and rented its services. What liability do they have if someone comes along and uses it for untoward purpose?
You say they are passive recipients, Winkelmann said to Illingworth.
Glazebrook cuts in. What about the rewards? Users who uploaded files which proved popular with other users got cash incentives.
Illingworth: "They're trying to generate as much traffic as they can because that's good business. They're not saying you get rewards for breaching copyright, you get rewards for increasing traffic."
The Megaupload accused in 2012 - Bram van der Kolk, Kim Dotcom, Mathias Ortmann and Finn Batato. Photo / File
Users stored content on the website. There was no search bar to find copyrighted material. If people accessed movies or music, it was through links found elsewhere on the internet.
Even though those running the website knew most people were breaching copyright, asks Williams.
The case has bedevilled the judiciary since 2012. Partly it is high-powered lawyers with the funding and liberty to explore legal nuance and case law interpretations.
But it is also the courts grappling with the multi-jurisdictional nature of the internet and attempting to wrangle it inside a framework of historical civil and criminal legal concepts.
And so the art of analogy.
What if, said Glazebrook, I made a movie called Woodenhead.
But she didn't. It was made by Northland's Florian Habicht. It is a dark fairy tale about a couple who wander into the woods with a donkey.
