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Kim Dotcom's Defense Lost Its Star Witness

Megaupload's lawyers hoped Lawrence Lessig would testify at an extradition hearing, but he's on the campaign trail.

Lawrence Lessig, the Harvard law professor and self-described "nerd" candidate for US president, didn't exactly run out on Megaupload founder Kim Dotcom, but he also won't appear at Dotcom's extradition hearing as hoped.

That's what Ira Rothken, Megaupload's lawyer told a judge in Auckland District Court last week.

Months ago, the Megaupload team had set their sights on getting Lessig to New Zealand so he could testify as an expert witness on behalf of four Megaupload managers, including Dotcom, accused of criminal copyright violations.


On September 6, Lessig announced he would run for president, and that meant he'd be on the campaign trail at the time of the extradition hearing. It also meant that the only legal expert who agreed to testify for Megaupload would be a no-show.

Rothken told the court that he was surprised by the news of Lessig's campaign, and received it "with much chagrin."

In 2012, the United States Department of Justice has accused Dotcom of being the ringleaderof a conspiracy to profit from piracy. The now defunct internet-locker service was once the place, for millions from around the world, to share pirated movies and music. The DOJ alleges Megaupload's former management team designed the service to function exactly that way and wants them to stand trial.

The copyright expert slammed the DOJ's case, arguing in part that Megaupload's actions are not "prohibited by criminal statutes of the United States"

The reason Lessig is important is because Dotcom and the rest of Megaupload's managers say they're running out of money. They told presiding judge Nevin Dawson that since the DOJ has seized their assets, and after nearly four years fighting extradition, they're without the funds to pay legal and technical experts to travel and stay in New Zealand. The only expert willing to do it for free, according to Rothken: Lessig. Lessig's campaign was not immediately available for comment.

In addition to his gig as Harvard Law professor, Lessig, 54, is a hero to the anti-copyright crowd. He is a cofounder of Creative Commons, the non-profit group trying to boost the number of creative works legally available for anyone to use and build upon. Now, Lessig is running as a Democrat to replace Barack Obama as president, but at this point his campaign doesn't look like much. He has raised only $1 million and he's being locked out of the debates because he hasn't polled the minimum 1 percent (possibly in part because polling companies haven't asked about him). He will however appear on NBC.


He's running on just one issue. Lessig wants to oversee the passing of the "Citizen Equality Act," a statute that would reduce the influence of money in the US political system. After that passes, Lessig says he would step down as president.

None of that will help Dotcom and his co-defendants. They need him in court. The best Lessig could do was to file a legal opinion on their behalf, which he did last month. The copyright expert slammed the DOJ's case, arguing in part that Megaupload's actions are not "prohibited by criminal statutes of the United States." He said that to throw someone in jail for copyright violations, the accused had to at least be the one who committed the infringement. According to Lessig's affidavit, the DOJ alleges the defendants of only helping people infringe.

On Friday, Christine Gordon, the New Zealand prosecutor arguing on behalf of the DOJ, told the court Lessig's opinion should be inadmissible at an extradition hearing. She said that dissecting the ins and outs of US law were not the judge's responsibility. His only responsibility was to decide whether enough proof existed to justify a trial. And she said the evidence was more than ample.

That's nonsense, according to Rothken. He said in an interview Monday: "We're allowed to attack the reliability of the record of the case and that includes the theory of what they say is illegal."

On the issue of money, Rothken said that without access to some of their funds, the four accused will be well short of the cashthey need to pay for an adequate defense. He estimated that they need experts to testify on Megaupload's terms of service, technology, on international treaties among many other areas. He told the court that his estimate of the total cost was somewhere around $500,000 USD.