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The Latest Twist in the Megaupload Case Hinges on a German Translation

The former Megaupload founder is claiming he never said he was "evil."
Kim Dotcom flashes a thumbs up on his way out of court in September. Photo: Greg Sandoval

Lawyers for Megaupload founder Kim Dotcom accused the United States of misrepresenting evidence and of trying to "contort the law" in a bid to persecute their client.

This is do-or-die time for Dotcom and three other former Megaupload execs at the now defunct Megaupload. On Monday, their attorneys began arguments at an extradition hearing in Auckland on why the New Zealand government should not hand them over to the United States on criminal copyright violations.


The US Department of Justice claimed in a 2012 indictment that Megaupload's leadership generated $175 million by helping users pirate movies, and wants them brought to the US to stand trial.

The hearing began with at least one serious allegation made by Dotcom's lawyer, Ron Mansfield. The way Mansfield tells it, either DOJ attorneys speak very poor German or they intentionally misrepresented the meaning of Dotcom's internal communications to blacken his image before the public and the court.

Throughout the six-week hearing, New Zealand prosecutors, arguing on behalf of the United States, have told presiding Judge Nevin Dawson that Dotcom referred to himself and several other former Megaupload managers as "evil."

What is probably a more important question to Dotcom's case is whether the extradition treaty between the US and New Zealand even includes copyright violation

According to TVNZ Radio, the DOJ alleged that in German, Dotcom's native language, he wrote to fellow Megaupload executives: "At some point, a judge will be convinced about how evil we are and then we're in trouble." Dotcom's translators disagreed and said the quote should be read this way: "At some stage, a judge will be talked into how bad we allegedly are, then it will be a mess."

Mansfield called the translation "an intentional misrepresentation."

For nearly four years, Dotcom has said that the US and by proxy, the New Zealand government, have acted improperly in trying to make a case against him. An erroneously translated message would appear to fit into that narrative. In January 2012, the DOJ filed an indictment in the Eastern District of Virginia against Dotcom and six other former executives at Megaupload, an enormously popular online storage service. In addition to criminal copyright violations, the US accused the men of racketeering, money laundering, and other charges.


Since then the US has tried to convince New Zealand to surrender Dotcom and three other managers residing in that country. A hearing began in September to determine whether the country will honor the US extradition request. If convicted, the men could spend decades in prison.

What is probably a more important question to Dotcom's case than any German translation, is whether the extradition treaty between the US and New Zealand even includes copyright violation, the core of the case against Dotcom and his colleagues. Dotcom's lawyers say the answer is no.

They have said that that this is the reason why Christine Gordon, the lead New Zealand attorney arguing on behalf of the DOJ, tried so hard in the first three weeks of the extradition hearing to paint Megaupload's actions as fraud. While criminal copyright violations are not mentioned in the treaty, fraud is. For example, Gordon told the court it was fraud that Megaupload's leaders represented to copyright owners that they were removing infringing movie and music files when in reality they only removed links to the files. The DOJ contends that Megaupload's management enabled hundreds of links to infringing content ensuring that if one were destroyed, dozens of others remained available.

According to TVNZ, Mansfield told the court that if New Zealand extradites Dotcom and the other defendants for fraud, the US Supreme Court has ruled that copyright allegations can't be prosecuted as fraud. That means that New Zealand would surrender the men on a charge the DOJ won't even be able to raise at trial, Mansfield said.

No matter how Dawson rules, Dotcom likely doesn't have to worry about spending a cold winter in Virginia. Whichever side loses is sure to appeal, and it will take at least another year before that process is exhausted, legal experts say. A few weeks ago Dawson told both sides that this is an important case and "needs to be got to the end of."

Maybe, but it will continue for a long time to come.