When the Megaupload extradition case finally comes to court next week, one defendant ‘facing a death sentence’ will cut a solitary figure among the banks of lawyers. He spoke to David Fisher.

Finn Batato walks naked into a maelstrom on Monday. He faces decades in jail but has little money and none of it to spare for a lawyer to defend himself in the biggest copyright case the world has ever seen.

"I'm optimistic," he says, but it's hard to imagine why. Perhaps it is because the alternative is too bleak, with two young sons at the modest North Shore home he shares with their mother, Anastasia. They married last month - it seemed mad but the couple were determined their life would not be entirely ruled by Megaupload.

It's almost four years since the FBI brought the filesharing company crashing down. Batato, the website's advertising manager, was paid well but never enjoyed the cash the shareholding defendants enjoyed.

What little remains now sustains the young family and even then it's running out. A lawyer is an impossible indulgence - too expensive to have and too costly to lack.

Advertisement

And so, facing the possibility of decades in jail, Batato will defend himself as best as he is able.

Finn Batato and wife Anastasia on their wedding day in Queenstown. Photo / Supplied
Finn Batato and wife Anastasia on their wedding day in Queenstown. Photo / Supplied

The extradition hearing - long delayed - has finally arrived. Though there are applications for a delay, those who have watched the case have a sense Judge Nevin Dawson wants to get the meat of it. Will they stay or will they go?

Judge Dawson doesn't have to find that the law was broken. Instead, he is required to find whether there is enough evidence to warrant the matter going to trial, where that finding would be made.

The men have been charged with copyright violation, taking part in a criminal conspiracy and money laundering.

They cannot be extradited on copyright charges. It's not serious enough. Instead, the United States wants them extradited for money laundering and criminal conspiracy. Those alleged crimes only exist if copyright breaches are found to have happened. It's a teetering tower of criminality built on the least serious of the accusations faced.

Case is shaping as an epic showdown

Kim Dotcom has as legal counsel the aggressively brilliant Ron Mansfield. Megaupload's genius programmers Mathias Ortmann and Bram van der Kolk have Queen's Counsel Grant Illingworth, whose competence is such he that has acted for judges in the past.

They will need the legal might. The Government's lawyers, led by the elegant and scalpel-sharp Queen's Counsel Christine Gordon, have invested more than 30,000 hours into cases related to the Megaupload raid, according to Crown Law Office figures.

Kim Dotcom. Photo / Greg Bowker
Kim Dotcom. Photo / Greg Bowker

The other lawyers are not allowed to help Batato. There is a court-appointed lawyer, who job is to make sure Batato follows the legal form but he is also bound from assisting. On one occasion Batato rose to argue his point and was praised afterwards by the lawyers acting for others. "I was kind of proud about that," he says.

The lawyers' benches are stacked with folders of evidence, case law, submissions and legal esoterica. Batato's is bare, usually, except for a pad on which he determinedly and diligently takes notes, as if it were an exam which, if passed, would win him release.

"It's intimidating. I've never been charged with anything, I've never done anything wrong in my life. It's frustrating to be in that situation. What can I say in court? I can join in submissions if they are suitable.

"Sometimes I make a couple of my own ... but I have to hope the other lawyers will make a good job.

"I can't quote case law from 1965 or Canadian or UK cases. I can't. How am I supposed to do that?"

Batato and the other defendants have always maintained their innocence. They say they ran Megaupload in line with strict legal advice, removing links to copyrighted content when alerted to it. "I would never have done anything, ever, semi-criminal or anything that would result in any legal difficulties for me," he says.

But the four, who are facing charges in the United States, have long stopped believing the prosecution they face is justified. Instead, they believe the US Government is acting for a Hollywood threatened by the inevitable damage the internet will have on its business model.

So, innocent as Batato says he is, he concedes the worst is possible. "The implications if it goes not well for us is extremely stressful and terrible to think about."

There is so much to lose

He and Anastasia started dating when he was under house arrest, not long after the police raid on Dotcom's manor in January 2012.

Her friends questioned her state of mind - they assumed the four accused were guilty in the wake of the dramatic raid.

The couple fell for each other, they say, while waiting for everyone to come to their senses. She recalls how "we thought August would be the maximum amount of time and it would be finished".

Really, says Finn Batato, it was meant to be over by now. "I thought it would actually crystallise that this is not a criminal case much earlier."

There were delays - questions over the police raid and the processes which weren't followed, revelations of illegal spying - and arguments over what evidence would be presented.

Then came Leo, who is now 2, and then, seven months ago, Oskar.

The charges - "of course it's not right what they claim" - could put him away for decades. "That of course is like a death sentence then. If you're talking 30, 40, 50 years, it's a death sentence for what is actually a civil copyright case."

"The constant pressure over your head - not knowing what is there to come, is very hard, very tough. Everything that happens in our life happens with that big black cloud over our heads which especially has an impact on me and my mood because I can't just switch it off. I wish there would be a button where you can just press it and the case goes away for a couple of days. It doesn't matter how fun and nice the times are, it is always still lingering above you."

He considers Leo, who is old enough to interact, and wonders "how much longer will I see him".

He talks with his son in German.

"If everything goes down the hill, maybe I will see him once every month in a prison cell. That breaks my heart. I can't enjoy it as much as I would want to. It's highly stressful."

Batato was never meant to be in New Zealand when the raid happened. He should have been in Germany. Plans changed and next thing he knew he was in a cell in Mt Eden prison.

"If I would have been in Germany then I would not have had the chance to raise a family with Anastasia. There is also something good and that is what we focus on when we think about it and talk about it."

Mrs Batato talks of the "happy moments new families have" being "tainted by this background tension of not knowing what the future holds.

"You're so scared. It's terrifying to think Finn might spend the rest of his life in prison. To raise a family on that ... to have that fear makes everything not as special as it could be."

They had to take life back for themselves, where they could. "We decided we can't put our lives on hold forever. We thought 'is it the right time to even have a child' but it's never really the right time. Every parent knows that."

Batato, admittedly a proud man, resisted marriage because he didn't "want to appear like I'm getting married to stay in the country or something. But we can't wait forever. At some stage you have to move on with your life."

Last month, with the help of family and friends exchanged vows atop a hill above Lake Wakatipu. The wedding photographs play on a television screen on the wall of their modest North Shore rental. A modest car - a Volkswagen - is parked in the drive. It's not all millionaires and mansions in the Megaupload case.

Before Megaupload, Batato was managing director of the German office of Europe's largest independent advertising sales house. He had known Dotcom since they were teenagers and in 2007 - entranced by the internet as the future of business - joined Megaupload as chief marketing and sales officer.

He earned good money - the FBI documents record him being paid $630,000 in 2010. That was the big year for Megaupload, when they all picked up the benefits of earlier, tougher years. Batato saved his money, but it was seized in Hong Kong, when the FBI raids took place. Legal action has released enough to cover his living expenses. "I am currently in a situation where I would run out of funds at the beginning of next year.

"The case changed a lot of financial things for me and then for us as a family. Yeah, that sucks if every third week or every month you have to check your bank account if you can go grocery shopping. But we are coping. We are a strong little family. We can deal with that. Money doesn't make you happy. The money is not really the essential thing in life. It makes things easier but it's not really essentially important to be happy."

Mrs Batato: "I think as a family the stressful thing about the money is that eventually it will run out. The unknown is what comes next. What if Finn can't work? It's so unknown. It's not knowing how long it can last or how long it needs to last."

Though Batato admits to a private anger, Mrs Batato describes her feelings as more of frustration and sadness. "Since the case has dragged on so long, I got really bad anxiety and I had to increase my anti-anxiety medication. I feel I have to be stronger for Finn because what he is going through is so much worse than what I'm going through, although I'm going through it with him.

"I feel I have to hold myself together when it comes to the times when you want to be angry, or you want to cry about it or want to think or talk about the future. It's hard. It's just hard."

There's a difficulty in looking for work - "that's the Dotcom guy," he says, mimicking a prospective employer. "It's not only my past good reputation they killed with this case - and I had a very good reputation - but it is also the future."

Relations not as good as they have been

In the beginning, the four defendants were tight but it didn't remain easy. "The longer it took the more tension built up." Batato still sees the other three regularly but the Herald is aware relations between Dotcom and the others is not as good as they have been. Dotcom recently began publicly attacking Mega, the company the four built and in which his co-accused still hold shares.

It should have been settled earlier but the opposing sides are now "just like two stubborn bulls are running into each other". "Everyone can only lose - it's money, face, reputation. Everyone can only lose in this case. There is no winner."

The extradition case: a beginner's guide

(From left) Van der Kolk, Dotcom, Ortmann and Batato outside the High Court in 2012 for a hearing over search warrants used in the raid on Dotcom's mansion. Photo / Sarah Ivey
(From left) Van der Kolk, Dotcom, Ortmann and Batato outside the High Court in 2012 for a hearing over search warrants used in the raid on Dotcom's mansion. Photo / Sarah Ivey

In 2012, the FBI launched raids worldwide, aimed at bringing down the Hong Kong-based Megaupload website.

Of the seven people listed on the indictment, four were arrested at the time - majority shareholder Kim Dotcom, minority shareholders Mathias Ortmann and Bram van der Kolk and advertising manager Finn Batato. The seven sought by the FBI were accused of running a criminal conspiracy that centred on massive copyright violation. They were also accused of money laundering.

What was Megaupload?

It was a website to which users could upload files and obtain links to then share with others. It was known as a place where users could access movies and music without paying. But it was also a place which offered copyright holders a service by which they could identify links to copyrighted material which would then be removed. Users were also warned not to upload copyrighted material

What happens in court next week?

It's an extradition hearing, which could see the four men sent to the US District Court of East Virginia to face trial on the charges. Judge Nevin Dawson is not required to find guilt. His job is to find out if there is enough evidence to suggest there is a case to answer. In other words - has the United States shown the charges should have been laid?

That doesn't sound complicated - is it?

It's not as simple as showing users accessed copyrighted material from Megaupload. In that case, it is the users who might have violated copyright. There is no criminal charge for second-degree copyright violation. It's also not enough to show direct copyright violation because that is not an offence for which people can be extradited. Instead, it will have to be shown that there is enough evidence to support accusations of conspiracy and moneylaundering.

Is there enough evidence to support conspiracy and moneylaundering charges?

The FBI thinks so. The defendants believe not. Showing a breach of criminal copyright is vital because if it can be shown as systemic then it transforms business transactions and meetings into the laundering of illegally obtained money and conspiracy to commit crime.

What evidence did the FBI have?

Investigators had accessed massive amounts of email communication between the accused, and detailed exchanges they said supported the charges. Some of the exchanges were compelling - in one, van der Kolk said: "We are the pirates here".

And what did the defendants say?

They said the FBI evidence was a self-serving stitch-together of emails designed to support a case that was motivated by Hollywood pressure on Washington.

Was the case motivated by Hollywood?

Hollywood certainly pushed Washington to go hard on filesharing websites, including Megaupload. In 2010, the White House made intellectual property - and copyright - an issue of national security. The movie and music industry was described as a cornerstone of the US economy and in need for protection from rogue internet businesses.

Was Megaupload a rogue business?

It was a registered Hong Kong company that paid tax and hired staff in a number of countries. It sold advertisements, had paying customers and sought and received extensive legal advice. It had no offices in the US and its founder Kim Dotcom had never been to the country.

How is it the US' business?

That's an interesting question because there are different copyright laws in many countries. The original prosecutor, Neil McBride, the US attorney for East Virginia, said in 2012: "I'm convinced that most emails in the world at some point transit through servers that sit somewhere in the Eastern District of Virginia, so that gives us venue." By venue, he means jurisdiction, and that means US law travels with the internet.