The legal, business and political implications of the Megaupload case were examined at a breakfast panel discussion held by the New Zealand Computer Society in Auckland recently.
The panelists were IT lawyer Rick Shera, InternetNZ CEO Vikram Kumar, and TPP-Watch founder Jane Kelsey.
Shera opened with an observation that the Megaupload extradition proceedings were likely to be "absolutely fascinating" from the legal point of view. The issues were complex but he was glad "New Zealand's most tech-savvy jurist," David Harvey, would be presiding over the hearing which is scheduled to take place in August.
In order for the extradition to succeed, Shera said, "there has to an extraditable offence and it has to be serious. Some say the definition of 'serious' is a offence that could carry a 12 month prison sentence, others say it's four years."
The extraditable offence also had to be "similar or akin to" New Zealand law. While New Zealand did have the Copyright Act, Shera said there were differences between the US and New Zealand legislation, and issues such as knowledge and the obligations of third parties could be significant.
Shera said it showed the struggle by copyright holders to enforce their rights was moving towards ISPs and cloud providers, as film and music companies were discovering that suing users was not best way of achieving their goals.
There had been earlier civil actions against Limewire and Napster, Shera said, but the difference here was that the Megaupload case was a criminal action. This had involved the "nuclear option of taking down websites, seizing assets, shutting down a business even before the accused has a chance to know they are being accused."
Shera questioned whether due consideration was being shown to third party rights or whether criminal proceedings delivered an appropriate remedy.
"Win or lose, Megaupload is down and the business is probably destroyed."
Vikram Kumar took up the theme of the novelty of a criminal copyright case, saying it represented a "fundamental shift that we have to start thinking about."
"We are not used to seeing copyright matters treated in a criminal context," he said, adding that many people had "reacted emotionally" to the use of armed police in the Dotcom raid.
"What we have here is the arm of the state acting on behalf of people who have alleged they have been wronged."
Kumar said there had been two categories of reaction to the case so far, the first of which had played out behind the scenes. Some of Megaupload's competitors had started clearing up their own lockers, and links to copyright infringing files were taken down. Almost immediately much traffic had shifted to other sites.
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