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Kim Dotcom's Assets Seizure Order Ruled "Null and Void"
thomst writes "Cnet's Greg Sandoval reports that New Zealand police filed for the wrong kind of restraining order--the kind that didn't allow for DotCom to have a court hearing prior to the seizure — and that was a mistake, according to a report in the New Zealand Herald. A court has now ruled that the restraining order that enabled police to seize his assets is 'null and void,' and a review of the mistakes made will soon be conducted by New Zealand's attorney general, according to the Herald. The paper noted that there's no guarantee that DotCom will prevail. His lawyers must prove the absence of good faith when the procedural error was made."
http://www.youtube.com/watch?v=Ka5oLSuiUGs
If he named himself Kim Dotnz the Americans wouldn't have any jurisdiction over him.
it's essentially impossible to prove "bad faith" on something like this without a "smoking gun" like an email mentioning how they're just going to take a shortcut or something.
IMHO, the whole concept of "it's ok to do something illegal as long as you had good intentions" is not something that should work for the law, ever. It rarely helps the citizen. ("good samaritan" laws being the only common exception)
The whole point of having legal requirements is to force them to make sure they have their ducks in a row before exercising their powers. Once you say "well it's OK if you violate someone's rights, as long as it was an honest mistake", it opens a huge barn door to abuse. Laws should always be slanted in favor of the accused, to lower the incidence of abuse and mistaken application.
I work for the Department of Redundancy Department.
... they refile the 'proper' warrant, get a judge to sign off on it, and take his stuff again. So the cops screwed up. This is news?
Understanding the scope of the problem is the first step on the path to true panic.
Why do bad things happen to police states?
So if he was innocent but they had the correct paperwork, everything would be ok with you?
Whether or not he is not a tool is irrelevant. His business has already been destroyed. What is important the fact that there is no rule of law. Governments have too much power. This needs to change.
How can you possible be defending Kimble? He's not some patriotic defender of our IP rights. He has, time and time again, setup illegal businesses, had the government stop them and move on with a slap on wrists. He is a crook. It so happens that this time, he was running a file sharing site. But between his credit card thefts, his stock scams and his selling of cracked games to pirate factories, the guy will always find some new crime to make a fortune off of. And I do mean a fortune.
I for one, am praying that Kimble is jailed for good, and stops giving a bad name to REAL defenders of IP rights and file sharers.
Years ago Hilaire Belloc made a rather good joke about many apparently worthy causes actually being the work of the "Society for the prevention of annoyances to the rich". This seems to be what is going on nowadays - the Internet is allowing (relatively) poor people to cause annoyance to the rich and they are trying to stop it. But, sadly for them, it is simply not true that there are no honest lawyers.
From scarped cliff or quarried stone she cries "A thousand types are gone, I care for nothing, no not one."
As an American, I'm glad to see foreign courts aren't completely acquiescing to the same "moral imperatives" our politicians and intellectual property owners demand we submit to.
As an epileptic, I'm dreading all the "clever" headline puns describing Kim Dotcom's "seizure disorder".
As a geek, I can't wait to debate whether the it should have instead been ruled NIL, as well as NULL and VOID.
Right, return his stuff after the damage is already done. Megauploads is gone. Nothing they can do now can repair their business.
And to be honest, I think that was the point of this whole exercise. I don't think our government cared about making any kind of legal precedent here. They mostly just wanted to show that they had the ability to take any of these guys down and went after a high profile business to do it.
How can you possible be defending Kimble?
I'd defend anyone from what I believe is abuse. Mentioning his name will not change that for me. That was just a general statement.
"Easy cases make bad law."
They go after Kim Dotcom because they think they can make an unsympathetic defendant of him. That's part of why all the trumped up bullshit in the complaint vs. "Megaupload" as well (constant words like "mega conspiracy", "child porn", and so on created to scare the crap out of the grand jury).
If you don't defend him, though, then that sets a precedent and other people get fucked over by the bad precedent. Why do you think the MafIAA run away from court every time they look like they are about to lose a case? It's because settling or "dropping" the case doesn't create precedent, but losing in court would.
When they take YOUR rights away, they start by taking them away from someone you find distasteful. Often it is the mistake of the naive to think that Rights only apply to the good and just citizen. What they do not realize is that, if you can make a distinction regarding who deserves certain Rights and who does not, it is only a matter of time before the government finds a way to make that very distinction against you. Rights are not rights unless they apply to everyone, equally.
Mr. Dotcom is hardly a hero but any money he makes is unlikely to finance the corruption in governments and trade treaties we see. The money he makes isn't going to turn the world into a police state. It may go towards scamming, but scammers do not usually have storm troopers crashing into the homes of private citizens.
Any and all ways that deprive the intellectual monopoly corps of revenue are good. Even if it means creeps like Dotcom get money.
That's a fairly big statement to make without any supporting evidence. Care to share?
It's a very small step between bending the law to go after people we know are doing something illegal to bending the law to go after people the police or people in power don't like. That's the point of the rule of law: sometimes it protects asshats, but that's better than it not protecting anyone.
I am TheRaven on Soylent News
This was gone over quite a bit in the original posts. They do host files. They would save space by hashing files and sending multiple links created by multiple users to the same single file on their servers. Then, when a DMCA request was issued, they'd remove the single users' link that they had gotten the request for, and not the file itself.
"How can you possible be defending Kimble? He's not some patriotic defender of our IP rights. He has, time and time again, setup illegal businesses, had the government stop them and move on with a slap on wrists. He is a crook."
You mean like most modern businesses? At this point there is little difference between kimble and what is the status quo for the corporate sector. You're blind otherwise.
If we want to live in a society which respects the rule of law, then the law also protects assholes, and taking that protection away from them takes it away from everybody.
Insisting on due process is defending ALL of us. If he's as bad as you say (and that's likely), then he can be nailed to the wall without endangering the rights of everyone by following due process to the letter.
I would have to say this was a very serious violation. Everyone should have known what due process was here, but somehow, nobody seems to have noticed that they were doing the wrong thing based on the wrong paperwork being filed? I'm supposed to believe that? The judge should be especially ashamed for being so quick with the rubber stamp that he didn't notice.
that would be one of many reasons. Bureaucracy sometimes exists to serve the bureaucracy, sometimes some broader strategic interest etc. Should the police be looking to seize assets as the property of an individual who is accused of, seizing the assets of the principle owner of a corporation accused of, seizing the assets of the corporation, being used for the principle owner etc. etc. etc.
I'm not a lawyer, australian or otherwise, but the way I vaguely understand other commonwealth law is that Megaupload is a legally existing corporation (even if all of its activities are accused of being illegal), and everything in question (the hosting of copyrighted works) was done in the capacity of the corporation. That's different than kim dotcom hosting the files on his own, and means that even though he could be arrested and have his assets seized as part of his role in the corporation, they are supposed to go after the corporation, and as part of going after a corporation. I'm not sure in the end it makes much practical difference, but the paperwork is different (and that might determine how it is counted for statistics purposes and funding purposes).
My feeling is this... If Kim was guilty of stealing credit cards, stock scams or selling cracked games to pirate factories, he should be arrested and tried on those counts.
Instead, it looks like they decided it was far more lucrative to take down his MegaUpload site, which is relatively legitimate by comparison to ANY of those other things.
Justice shouldn't be opportunistic, waiting for the "bad guy" to build up something "really worth seizing".
How can you possible be defending Kimble? He's not some patriotic defender of our IP rights. He has, time and time again, setup illegal businesses, had the government stop them and move on with a slap on wrists. He is a crook.
Exactly, only honest people have the right to expect due process and the rule of law.
People who share copyrighted works shouldn't be protected by the rule of law!
this signature has been removed due to a DMCA takedown notice
Right, return his stuff after the damage is already done. Megauploads is gone. Nothing they can do now can repair their business.
Megaupload was/is the most famous sharing site, and all this buzz around it after the arrest/shutdown only made it more widely known. If Dotcom can bend the laws enough to restart it without getting thrown in jail again, he'll be making thrice as much money from Megaupload as he was before.
Exactly. You know the post the other day regarding the American getting charged with child pornography for having manga on his PC? This one:
http://news.slashdot.org/story/12/03/15/2034252/canadian-charges-against-us-manga-reader-dropped
That happened because the government created the precedent by prosecuting John Sharpe for his drawings. Since Sharpe also had pictures of child pornography, and indeed was likely a child toucher, it was an easy win because the public vilified him for BOTH things (drawings/books and the pictures) and therefore decided that throwing away their rights was worth it to put him in prison rather than realizing there's two separate cases there (the thought expression vs. the pictures).
http://en.wikipedia.org/wiki/R._v._Sharpe
There is a reason the people for Freedom of speech rallied behind smut peddler and general amoral person, Larry Flint. If you don't defend the objectionable when they come for them, nobody will object when they come for you. It doesn't work in simple movie heroics but the people at the frontlines of the battle between good and right often ain't all that nice. Many a freedom fighter is just one step away from being a criminal, even in the eyes of their own side. The non-silly part of Dad's army was hard line enemies of the state, who were trained by the state since it was reasoned they hated the nazi's even more then British government and could be counted upon to kill those of the British government who would colaborate with an occupying german force.
Keep waiting for a nice guy to rally behind and you might find that the battle has been lost before you ever got started.
Mind you, I got the strong suspicion that since you are an AC, you might well not mind all that much. 10 to 1 that you think DRM and Trusted Computing are all worth it, for your cause.
MMO Quests are like orgasms:
You may solo them, I prefer them in a group.
Who else wishes that 1/10th of the effort spenton getting Kim Dotcom Was spent on investigating at LEAST 1 corporate banker or organization behind the recent bank debacle in the states. These "folk" caused far, far, far more damage than Dotcom did.
It just goes to show that no matter how corrupt an entity is, if the entity has congress backing, it can get away with just about anything.
DISGRACEFUL SYSTEM.
AC
I think there's a good point here about the impact of this kind of process on a business, whether Kim Dotcom's or anybody else's and regardless of the outcome.
"Innocent until proven guilty" only applies in a court of law. In a world where decisions are made on the basis of an opportune fortune cookie that fell out of a bag on the shelf where I spotted my subscription copy of "Advertiser's Guide to Large File Hosting Monthly", law enforcement storming an executive's private residence with a cornucopia of guns and officers has an impact. Given the vast sums of money that change hands over ephemeral and esoteric patents on a component of a specific product, this is another order of magnitude in competitive disadvantage.
My point isn't that this specific case is right or wrong, but that we trust government, not the judiciary, to ensure this catastrophe only happens to the bad guys, which may be necessary but is still incompatible with "innocent until proven guilty". If there's a mistake, commensurate restitution is simply infeasible. Which is one reason many court cases involve name suppression, but then that opens another can of worms.
I think you out a verb.
Does the local police force working under the direction and supervision of a foreign govt count as a 'procedural error' as well?
Just in the case that you're actually interested in the response, it's going to disappoint you : no. Imagine if that were true : you'd just have to cross a single jurisdiction line and you'd get away with any crime whatsoever. That doesn't quite work.
We have this thing called international treaties. These days, if you commit a crime, it doesn't really matter if the victim of said crime is in your own country or in another one. If the victim decides to sue, or a foreign state decides to sue (as in this case), they can do so (although relatively high minimum damage levels are enforced : you can't sue a foreignor for less than about $2000). With a big exception in the EU, the proceedings are executed according to local law (in civial matters), and there local laws apply (in the EU foreign treaties take precedence of local laws, even constitutions, so it's much worse there). Foreign states are special in that they can start both civil and criminal proceedings. You do need to have violated a local law : you can't sue a muslim for beating his wife nearly to death if he manages to get into Morocco was a pretty high-profile case recently (and maybe this law will change, something to do with a number of suicides in that country).
What is going on here is that the police has seized his property because they believe he has committed a criminal offence and that someone (e.g. Time Warner) will seek damages, and has a reasonable chance to get them. They believe there is a big chance that given the chance, Kim Dotcom will cut and run (apparently he's done that before in Germany), and the judge agreed with that.
One of the things any lawyer should tell you : if you violate a legal principle that applies both in your country and in a foreign country, but only has foreign "victims", you won't be protected by jurisdiction limits. So the simple thing is : in America, insult whatever political figure or religion or ideology you like, and don't worry about morons like North Korea or Saudi Arabia suing you. Don't violate American law, even if you're "only hurting" foreigners.
If you want to change copyright, by all means go ahead. However if you try to do this through the court, you will fail, and you best be prepared to be bankrupt for the rest of your life. Any real action will be played out in congress. Democracy does not mean you do what you want, rather that the majority of the country, represented by freely chosen congresscritters, has to agree you're allowed to do it. If you can't convince enough of your fellow Americans (ie. 150 million), it's not going to happen.
Because, irrespective of WHO it was, the police has destroyed his business BEFORE proving him guilty in a court of law. This is not the way the justice system is designed to work. IF he is found innocent (and its a legally grey area), then how do the police propose to compensate him to losses incurred?
This could, and should have been taken to court without the drama/show for the media, and IF he was found guilty of anything THEN his assets get seized.
This is nothing to do with IP rights, it is to do with a man being jailed, and having his assets seized without a fair trial. Whether or not he is guilty or not is irrelevant - due process was not followed and this is a major concern.
I run: Windows, OS X, Linux, FreeBSD. Just because you have a hammer, doesn't mean everything is a nail.
If you RTFA you would notice it was not really the papers that were wrong. It was the worng procedure. In the correct procedure it would be allowed to get a hearing before all his belongings were taken.
And the difference can be enormous. By taking his belongings and the company the (rented) websites and all the data on it ceases to exist. That is mayor damage without a hearing!