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PoliticsFebruary 20, 2017

Liveblogging the livestream: Kim Dotcom appeal – now updated with court ruling


Kim Dotcom is back in court. He won the battle to livestream it. Until we can bear it no longer we’re liveblogging that. UPDATED with February 2017 ruling.

Monday February 20, 2017: We have a ruling!

A mere five months on, the ruling is in, and Justice Gilbert says Dotcom and co are eligible for extradition. It’s 363 pages long, but here’s the bit you need to read:

Team Dotcom has come out fighting, issuing a statement which begins:

This case is no longer the “largest criminal copyright case”,  at least as far as New Zealand is concerned. As we have said all along, there is no such offence under our Copyright Act. We were right. However, this afternoon the High Court judgment was issued and, ultimately, although it concluded we are right, the Court concluded that Kim is still eligible for surrender. 

To win the major plank of the case but to get that outcome is extremely disappointing. However, we are far from defeated. It is hard to accept the logic that, if the conduct that all accept at its heart relates to assertions of breach of copyright is not an offence under that Act, how it can nonetheless be massaged into a general fraud offence. In fact, that thinking has been rejected outright in the Supreme Court in the United States.

Onwards, then, brothers and sisters, to the Court of Appeal …..,.

Wednesday September 28: Day 22 of the hearing, Day 21 of the livestream

The last day. Or pretty much. Please.

At the end of it, Reuters reports, meanly:

The appeal set a precedent when the judge gave permission for the hearing to be streamed on YouTube, but legal experts at the time had warned that appeals hearings tend to be similar to “watching paint dry”.

Rodriguez Ferrere said the “monolithically boring” nature of the entire proceeding “turned everybody off”.

The final afternoon’s proceedings only attracted around 100 viewers online, according to YouTube.

Earlier, Mansfield concludes his submissions as follows (I missed it, so am cribbing from this report at TorrentFreak):

“Today marks 1730 days since 20 January 2012, when the New Zealand police effectively dropped from the sky and conducted the search of Mr Dotcom’s home. And at that point they then sought about arresting him. The officers were disguised, armed and left him and his family effectively bereft of assets and income.

“Sportsmanship in a court of law is called fairness and the United States conduct has in our submission both been unlawful and unreasonable and the tactics they have adopted have been unfair and prevented Mr. Dotcom and the other appellants from having the benefit of a fair hearing.

“He simply has not had a fair go. And we do ask that your honor considers the submissions which have been presented, because, in effect, after that period of time, after 1730 days it would be the first time there is a meaningful judicial assessment of the facts and of the submissions presented.”

Later in the day, as the afternoon wears on, the final appellant counsel stands. It’s only Jeremy Bioletti, the sometimes controversial lawyer who uses the Twitter handle @acquitmenow, which is what his client, Finn Batato, will have been thinking over the years, so there’s a good match. For the rest of us it’s @releasemenowmakeitstop.

He won’t be long. “You are the standout winner of the prize for brevity, Mr Bioletti,” says Justice Gilbert, who has aged several hundred years over the last few months.

Mr Bioletti addresses the court while Mr Mansfield uses his hand as a head-tripod
Mr Bioletti addresses the court while Mr Mansfield uses his hand as a head-tripod

Mr Bioletti, Mr Jeremy Bioletti, enters crescendo mode in saying, “I think there is a little bit of a difference between how things work, especially with the millennial generation, and what is being alleged here.” I feel duty bound to report this remark, given widespread allegations that the Spinoff is a seething hotbed of millennials, which I would be able to confirm were it not for the fact that I left my monocle in the caboose. He continues, with regard to the holders of copyright of materials shared on Megaupload: “There really hasn’t been any loss, because it was never going to happen anyway, because that’s just the nature of the internet. And of course that’s the clash we’re dealing with in this case: it’s the nature of the internet versus, you know, the classical copyright regime which seems to enforce property rights.”

It’s Mabo, it’s the vibe, it’s the internet.

Mr Bioletti then mentions that it’s 5pm, and the other lawyers all pitch in about issues of the admissibility of an affidavit from somebody, which cropped up late in the piece, and the Crown thinks it’s all a bit uncool and need some time to talk to Wellington and then the other side need time to reply and this and that and the bloody other, and they resolve to return to address all of this in days to come, so it isn’t really all over yet, although mostly it is, and so Justice Gilbert says: “I’ll just take this opportunity, even though we’re not quite finished, just to thank all counsel for the excellent submissions and all the assistance you’ve given to me …”

Except – bit awkward this – Mr Bioletti hasn’t actually finished his oral submissions. He does that, all in good cheer, bit off a laugh, everyone seems suddenly relieved, like sad villagefolk feeling rain fall on their skin after many cruel years of drought. There is another discussion about the timings of submissions, which I can make neither head nor tail of, and it all ends with Mansfield leaping to his feet – “just while we’re playing the justice version of Whack-a-Mole” (chortly laughter, ho, ho, ho) – to address briefly issues regarding THE LIVESTREAM: “perhaps we can deal with the livestreaming, and how we tidy that up, when we come back …” And the stream suddenly cuts out. Why? Has the court ruled it thus? Have nefarious evil imperial forces penetrated New Zealand online infrastructure through the High Court plumbing? Has the cameraperson finally lost the will to live, plummeting hari-kari with the camera towards the timber floor? We the people deserve to know. I can hear a shuffling outside my window but I will not rest. The door is creaking, but I shall not stop seeking the truth. Never will I giv

Tuesday September 27: Day 21 of the hearing, Day 20 of the livestream

Hillary vs Donald. Was anyone really watching the livestream? They were probably watching the debate in court*.

*They were not watching the debate in court because they are professionals.

Monday September 26: Day 20 of the hearing, Day 19 of the livestream

The case continues.


Friday September 23: Day 20 of the hearing, Day 18 of the livestream


Our old friend* Grant Illingworth QC is on his feet again. He’s been engaged in discussion with the judge about appendices and tables, and despite my devotion to every detail of this case I haven’t the foggiest what it relates to. But he does offers this stirring speech, summarising the last bit of Volume One of the appellant submissions:

“Then at page 164 we deal with the contention that there must be a flagrant affront to the legal values of this country, and the US submits that it would require a flagrant affront to the legal values of this country before the conduct of the requesting state could justify a stay [of extradition proceedings, as requested at the District Court.

This image of Mr Illingworth has been flipped on its vertical axis just for a bit of variety
This image of Mr Illingworth has been flipped on its vertical axis just for a bit of variety

“In our submission, Your Honour, that doesn’t take the matter any further. If the conduct of the United States has had an impact on the extradition hearing which affects the fairness of that hearing that is sufficient to bring into play the principles of natural justice which are affirmed by our common law and by our Bill of Rights. And that is sufficient to meet any requirement for there to be a flagrant affront, which in any event we say is not a prerequisite. In our submission a breach of national justice is always a flagrant affront to New Zealand values.”

* Not actually a friend, just a figure of speech.

Thursday September 22: Day 19 of the hearing, Day 17 of the livestream

The 265th day of the year. A hundred to go. And then another year will roll around, and on we’ll go, I suppose.

Wednesday September 21: Day 18 of the hearing, Day 16 of the livestream

Bill Murray turns 66 today.

Tuesday September 20: Day 17 of the hearing, Day 15 of the livestream

Opportunistic cross-promotion: Kim Dotcom comes up in this.

Monday September 19: Day 16 of the hearing, Day 14 of the livestream


Friday September 16: Day 15 of the hearing, Day 13 of the livestream


Thursday September 15: Day 14 of the hearing, Day 12 of the livestream


Wednesday September 14: Day 13 of the hearing, Day 11 of the livestream


Crown counsel Christine Gordon, acting for the US, today responded to earlier arguments by the counsels for Dotcom and co that they had been prevented from presenting to the District Court evidence of unlawful US behaviour, nor permitted to hear from various expert witnesses.

What happened?

Well, Ms Gordon said the evidence the men wanted to produce was either irrelevant to the extradition case, or would not have been enough to destroy the initial case against them. “That would require showing that some part of the US evidence … must be regarded as completely unreliable or defective.”

None of the evidence the men had wanted to produce could do that, Ms Gordon said.

“[Their evidence] ignores the evidence of what the appellants knew and what the appellants did. They encouraged [Megaupload] users to upload infringing content, they paid them for what they knew was infringing content, and they preserved that content.”

By a freak coincidence, my account of the above is essentially exactly the same as that contained in the report from RNZ Dotcom correspondent and leading commute microblogger Kate Newton.

A grab from today's livestream which I was definitely watching
A grab from today’s livestream which I was definitely watching 110% all day long

But where were we? Defence lawyer Ron Mansfield’s arguments had “a certain oratorial ring” but they were roundly contradicted by the concrete evidence the US had presented at the extradition hearing, Ms Gordon said.

However, Ms Gordon came in for intense questioning from Justice Gilbert over whether it was fair to prevent the men from presenting the evidence they had wanted to.

There were two issues the District Court had to decide, Justice Gilbert said: whether the offences were extraditable ones, and whether there was an initial case.

He asked Ms Gordon whether, if she was wrong about how relevant the evidence was, that could mean the extradition hearing had not been fair.

“The stakes are high here, aren’t they? So high levels of fairness are required,” Justice Gilbert said.

Again, this is uncanny, but Newton’s report for the public broadcaster posted earlier today is pretty much word for word the same as my version which is not at all a cut and paste job but based wholly on watching the livestream all day, which I definitely did. Although isn’t it all richly ironic given it’s a copyright matter, and who doesn’t love a bit of rich irony?

Here’s a tweet from Kim:

Tuesday September 13: Day 12 of the hearing, Day 10 of the livestream

Devoted lackadaisical livestream-liveblogger unavoidably waylaid again.

Monday September 12: Day 11 of the hearing, Day 9 of the livestream

3.30pm: Take that, Gizbozo.

1.30pm: Sorry.

Just got to clear this list of stuff then I’ll crank up the stream again. Promise.

Friday September 9: Day 10 of the hearing, Day 8 of the livestream


Thursday September 8: Day 9 of the hearing, Day 7 of the livestream


Wednesday September 7: Day 8 of the hearing, Day 6 of the livestream

11.00am: Internet mogul, hacker and hip-hop luminary Kim Dotcom has been hyping today’s action on Twitter.

11.10am: Dotcom’s counsel, Ron Mansfield QC, or “ronnus the copyright slayer”, as Mr Dotcom calls him, has begun his submissions.

Not Ron Mansfield
Not Ron Mansfield

Unfortunately, however, there is an appalling buzz on the livestream so it’s basically unlistenable.

11.15am: Kim smells a rat!

I bet you that Barack Obama is crouched behind the witness box running the audio lead through a dead puppy that he killed just because he hates internet freedom.

11.55am: Buzz/hum is still there. I think Mansfield just said he’s quoting from John Oliver, but it’s difficult to be sure.

12.05pm: I heard right.

12.30pm: Court is back in session after a break. And so is the hum. I’ll keep you apprised of all hum-based developments.

12.55pm: THE HUM IT IS GONE. ????????????????????????????????????

1.10pm: Mansfield is showing slides, and it’s all about the ROC (record of case).


Tuesday September 6: Day 7 of the hearing, Day 5 of the livestream

1.20pm: Livestream drama.

Dotcom’s lawyer, Ron Mansfield QC, has acknowledged a cock-up with the YouTube video of proceedings, with one of the pages, contrary to the judge’s instructions, able to take comments. It seems two comments were deposited. “Thankfully they weren’t concerning or alarming,” says Mansfield. “But it should not have been allowed to happen.”

Mansfield QC
Ron Mansfield QC

Seems it was human error on the part of the poor sod running the video. He says he “overlooked one aspect of the procedure”. And: “I’d like to apologise to the court.”

There’s more: a third party has apparently been mirroring the stream and posting it on YouTube. Crown lawyer Christine Gordon is concerned there may be “a subversion in effect of Your Honour’s orders”. But fear not! Mansfield’s team are going to alert YouTube and get the scoundrel’s rogue stream dammed to eternity.

That dealt with, we’re back into convoluted legal exchanges about documentation and procedural fairness and “housekeeping matters”. A poignant aside from Justice Gilbert: “I’m sorry, I’ve been to the dentist this morning, so half my mouth is numb.”

Monday September 5: Day 6 of the hearing, Day 4 of the livestream

3.00pm: A lot of anger out there over the paucity/absence of updates today. And when I say “a lot”, I mean a tweet from some guy called Ben.

So here’s an update for you, Ben: it sounds mostly like this: something something subsection something subsection something something something grounds for review something something areas of law something admissibility of evidence.

Mr Illingworth says: “We’ve reached the point where we could be in danger of losing perspective.” True, bro.

Could this, by the way, be the same Ben that swam at Kim’s all those years ago?

God it’s a small country. Lovely, but small.

In other High Court themed news:

Friday September 2: Day 5 of the hearing, Day 3 of the livestream

10.20am: A raw, evocative power to the opening images this morning.


10.55am: Says the judge: “There’s nothing straightforward in this case.”

11.51am: BREAKING – As the court adjourned for a nice cup of tea, I could hear off-camera whispering between counsel. Here is the full text of the conversation I could make out: “Prima facie case! [inaudible] Offence!”

(The exclamation marks are a bit much, I was just trying to sex it up.)


2.25pm: They’ve returned from lunch. There was talk earlier about an early finish to go and see someone get sworn in, which sounds nice. So I think they’ll be calling stumps shortly before 4pm. Right now, Mr Illingworth QC is describing in some detail matters regarding to colour coding.

3.45pm: The week ends with a decent summary of the Dotcom & co defence case from Mr Illingworth. He says: “This is a case about copyright enforcement, and in the absence of evidence of unlawfulness, and knowledge of unlawfulness, it is impossible to see how the United States case can work. So we say that this copyright issue underpins the whole case, including the conspiracy charges.

“This is all, without going into the question of what does the US law permit in terms of fair use, in terms of copying a file that’s owned, to be stored on a person’s computer or computer system, for example, now that cloud storage is a very common phenomenon, instead of copying something on to my hard drive, I might simply copy it on to a virtual hard drive. The virtual hard drive is in fact a cloud storage company like DropBox or OneDrive or SkyDrive, or all of the different drives, which pretend, if you like, to be the same as my hard drive on my computer, but in fact are external and are accessed via the internet. Now, unless you know who owns the copyright, what licensing arrangements are in place, has the person bought the DVD or we probably don’t even need the DVD these days, has it been downloaded via Netflix or -”

He natters on about various places you can download things from here, then:

“How do we know whether the work that’s actually stored within the servers of the cloud storage company, how do we know that they are unlawful or illegitimate files? So the starting point is who created that work, what is the law of copyright that applies, where did the work originate from, the law of which country applies – there are a whole host of issues that need to be addressed. What are the fair-use laws? And is a cloud storage company, that provides the opportunity for people to store information, liable simply because the user does something wrongful? Which is the dual-use technology issue. So that’s a convenient place for me to leave the submission, sir, and I can come back to it on Monday.”

Justice Gilbert: “All right. A tough week for you, Mr Illingworth.”

A tough week for us all, Your Honour. A tough week for us all. Court resumes 10am Monday.

Thursday September 1: Day 4 of the hearing, Day 2 of the livestream

5.20pm: Owing to staff shortage/indifference, the Spinoff liveblogging unit has only been dipping in from time to time to the livestream today.

Here, however, is a highlight from today’s High Court action – I’d revisit and quote at greater length but the video from the morning is mysteriously missing. I think they were discussing metaphors for cloud storage.

Artist’s impression

5.30pm: NBR’s mercurial digital tsar, Chris Keall, posited a theory earlier this week about Dotcom’s “alley-cat cunning” in securing a livestream. He wrote:

When the eight-week extradition appeal hearing wraps up, there is zero chance that all of this video will be removed.

At that point, Dotcom will be able to say: “If a High Court judge can’t control video uploaded to a legal file sharing service, then why am I being vilified for a handful of infringing files on Megaupload?”

But maybe KDC just wanted to avoid having to get through the Auckland traffic.

At home court ????

5.40pm: That’s it for the day. I hope you enjoyed our extensive and unrivalled coverage.

The last words before the stream halted came from an off-screen counsel, presumably from the crown, who said: “I have a matter to raise in relation to the filming.”

But what? Is it about the coughing? Is she furious that we wrote about the coughing yesterday? Are we going to be held in contempt of court? Or is it about a website embedding the stream when it was apparently agreed that the stream wouldn’t be embeddable?

Or was she concerned that Justice Gilbert’s eyes are not always visible to the general public, inviting speculation that his eyes may not be appropriately directed or made of lasers?


8.00pm: Finally, if you’re checking in from overseas, here’s a taste of the other big news story in New Zealand this week:


Wednesday August 31: Day 3 of the hearing, Day 1 of the livestream

10.15am: Here’s a summary of what happened on day one for Dotcom and his three co-accused, who are appealing the District Court ruling that they are eligible for extradition. It’s expected to take six weeks – the blink of an eye in the Dotcom legal epic.

Dotcom tweets:

10.25am: The judge has ordered a 20-minute delay on the livestream, and the liveblog will be held up by slow typing and a range of other factors, so you can expect an aggregate delay of around 27 minutes, unless I have to attend a meeting or get lunch when it will be more like 40 minutes.

So far the livestream is not very good.


10.29am: Images! Sound! Stream!


10.32am: The judge is I think talking about what is and isn’t allowed to be filmed, but I can’t make out what he’s saying in any detail because the audio is obviously being channeled through the serpentine plumbing system of the High Court.

10.40am: The defence lawyer (I think it’s Bram Van der Kolk and Matthias Ortmann’s guy, Grant Illingworth) is talking about “the other end of the narrative”, which can be found in Bundle 10. There’s a reference to the Geneva Convention and interpreting the extradition treaty and “the legal matrix”. And something about matters “ex post facto”. You know.

10.45am: I’m completely lost. This is because the audio is obviously being channeled through the serpentine plumbing system of the High Court.

Something trippy is happening with the images, too. This is how it looks:


10.55am: I’m just assuming there’s something up with the vision-mix on the livestream and this is not actually how it looks in court. He did mention the matrix.


11.02am: It went silent for a bit then BOOM the volume exploded. Exciting development but on the other hand I think my ear drum may be burst.

11.15am: Latest on the audio situation: it’s working a lot better but every 10 seconds or so a buzz emits, like a CD player drawer that refuses to open or a glitch in the matrix.

This from RNZ’s excellent and stoical reporter, having been contacted by Team Dotcom:


11.25am: Says Illingworth: “There’s this whole issue in the United States about whether broad brush criminal provisions can be used to enforce copyright. Now what we say, for the purposes of the issue Your Honour is considering now is: We needed to get advice, just to interpret the treaty, matrix advice.”



12.25pm: I’ve been attending to other matters, but let me provide you with a quote from Mr Illingworth, completely free of context: “I hope I’m not sounding too new-age-ish but the assessment is a holistic one.”

12.35am: Discussion of hash values and adverse inferences. As far as I can tell the argument relates to whether or not expert witnesses were allowed to appear in the District Court. This may be the most substantive post in this liveblog.

12.45am: The focus is still very much on adverse inferences.

I once did a timeline of the whole Dotcom affair, on the Listener site. Even Kim Dotcom and his lawyers used it to keep up with the saga, which was as serpentine as the plumbing system of the High Court. I abandoned the project in August 2013, as it was testing my will to live. In this way I feel I was very much acting on behalf of all New Zealanders.

1.30pm: The most impassioned moment so far. Illingworth launches into the US freezing of Dotcom funds, saying it has breached its “obligation to comply with the fundamentals of our system of justice”. Here’s a long quote, transcribed like a keen cub stenographer:

“The freezing of assets, both in New Zealand and Hong Kong, is part of the way states operate together to help each other, appropriately in relation to alleged criminal activity and the proceeds of crime and so on. But where the United States comes to New Zealand or Hong Kong and says, please freeze these assets, and the courts in that jurisdiction say, yes, but we are going to release certain funds for particular purposes, that release should be respected by the country that has secured those borders in the first place. It should be fully respected. And what has happened in this case is that those release orders have not been properly respected.

“Now of course the United States is entitled to say, We can do what we like in our jurisdiction; these are our laws and we’ll enforce our laws within our borders as we see fit. That’s true. But when that conduct affects what’s happening in the state where the orders have been made, and where it frustrates the effect of those release orders, as Her Honour Justice Courtenay [who ordered the release of some funds in the High Court last year] expressed repeatedly, that in our submission is not good enough.

“We say, Your Honour, that having submitted to the jurisdiction of foreign courts, to preserve assets and to obtain assistance and to obtain the arrest of individuals, to disrupt their lives in a profound way, the US cannot treat those release orders with disdain …

“The spending barrier has been put up in a way to kneecap the plaintiffs in this proceeding, to hobble their ability to defend themselves. We say, Your Honour, that is disentitling behaviour. The court should say that’s an abuse of the process of the court.”

1.40pm: Lunch break. And Kim Dotcom shows his missed calling as a hospital DJ:

3.20pm: More argument around the point of adverse inference. I have consulted leading legal authority “Wikipedia”, which explains: “Adverse inference is a legal inference, adverse to the concerned party, drawn from silence or absence of requested evidence.”

The legal argument here seems to relate to whether or not the appellants’ ability to call expert witnesses in their earlier District Court case.

In other news, the afternoon session audio has been first class.


To answer your questions, KDC. 1. Yes, or mostly, while trying to prepare dinner for my kids and that. 2. I sort of can, but on the other hand it’s all pretty turgid and arcane legal debate so I don’t understand more than about 50% of what is going on. Cheers!

4.00pm: Afternoon adjournment.

I’m not saying the legal chronicles of Kim Dotcom are descending to Kafkaesque levels, it’s just that here’s a passage from Franz Kafka’s The Trial:

The faces that surrounded him! Tiny black eyes darted about, cheeks drooped like those of drunken men, the long beards were stiff and scraggly.

And here’s a grab from the livestream:


4.25pm: Someone off-camera is having a coughing fit. Cough. Cough. Illingworth is soldiering on, enumerating what he regards as the logical failings of the District Court judge. Cough, cough. Cough, cough, cough.

4.35pm: The District Court judge repeatedly misunderstood them, it misstated their position, it misdirected, it was altogether just a bit cack, says Illingworth, without expressly using the word “cack”. Cough, cough, cough, cough.

4.50pm: Illingworth: “Your Honour, we’re now coming to the point where there is quite a lengthy passage.” Bro, I feel you. The Dotcom saga feels a lot like that.


4.55pm: Cough, cough, cough, cough. Cough, cough.

5.05pm: Judge Murray Gilbert has been cautioning counsel Illingworth that he has “some real reservations” about an approach questioning the District Court judge’s demeanour, particularly “evidence about where the judge’s eyes were directed. I find that personally troubling, that it could feature in an argument of this kind … But if you think it’s important and materially relates to your argument …”

Have they been reading Kafka, too?

Illingworth says he’d like to consult with his colleagues, so maybe that would be a good time to finish for the day.

Justice Gilbert: “I’m being live-streamed here.” (Laughter.) “So I hope my eyes have been in the right place.”

From the stream, here is Justice Gilbert. Eye direction, A+.


They agree to wrap for the day.

Keep going!