By , September 21, 2015.

Nearly four years ago, the US Justice Department indicted Kim Dotcom (née Kim Schmidt)—along with six other individuals and two corporations—on a number of charges related to the operation of Megaupload and alleged “massive worldwide online piracy.” 1Researchers found that “the shutdown of Megaupload and its associated sites caused digital revenues for three major motion picture studios to increase by 6.5-8.5%.”

Since then, Dotcom has consistently questioned the charges, claiming not innocence but a lack of legal basis for the charges themselves—that is, that his conduct in creating and operating Megaupload does not make him criminally liable for copyright infringement and related charges. His defense team even took the highly unusual step of publishing a “white paper” that explores its arguments against the criminal charges. 2I wrote previously about the arguments raised in the white paper here.

Despite this insistence of legality, Dotcom’s defense has repeatedly delayed an actual trial with procedural challenge after procedural challenge. This week, despite those efforts, his extradition hearing has begun and is expected to last four weeks.

But that still doesn’t mean Dotcom is confident his legal claims will hold up in court. In fact, his legal team has enlisted the aid of presidential candidate Lawrence Lessig to support their case. Lessig recently filed an expert opinion in the extradition hearing to support the argument “that the Superseding Indictment and Record of the Case filed by the DOJ do not meet the requirements necessary to support a prima facie case that would be recognized by United States federal law and subject to the US-NZ Extradition Treaty.”

There are a couple things worth highlighting about Lessig’s declaration.

Lessig, of course, has become a popular figure in the copyright world for his work in addressing how the law should work in a networked, digital world. However, his track record in accurately describing how the law actually works has been less than stellar.

This is not the first time he has appeared in litigation as an expert witness—he appeared in the godfather of online copyright cases, A&M Records v. Napster. In his expert declaration for Napster, Lessig argued in part that in evaluating whether the service enabled infringement, a court should look at whether it has “potential for substantial noninfringing purposes.” He concluded that Napster was capable of “vast” noninfringing uses, including “the sharing of non-copyrighted music, the sharing of copyrighted music that had been authorized for sharing (for example, for purposes of sampling), and the sharing of other non-copyrighted content on the net in a peer-to-peer manner.” Lessig added that, by passing the Audio Home Recording Act, Congress expressly left “private, noncommercial home recording unregulated by copyright law.”

None of these arguments were successful in the Ninth Circuit. 3A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). The court did note it was bound by Sony‘s holding regarding substantial noninfringing purposes and would not “impute the requisite level of knowledge to Napster merely because peer-to-peer file sharing technology may be used to infringe plaintiffs’ copyrights” However, the court explained, “Napster’s actual, specific knowledge of direct infringement renders Sony‘s holding of limited assistance to Napster. We are compelled to make a clear distinction between the architecture of the Napster system and Napster’s conduct in relation to the operational capacity of the system.”

The Ninth Circuit also rejected the argument that “that MP3 file exchange is the type of ‘noncommercial use’ protected from infringement actions by” the Audio Home Recording Act, holding that the plain language made the statute irrelevant to the issues at hand.

Lessig also spent a considerable amount of time and energy during the 2000s arguing that the Copyright Term Extension Act, as regarding the term extension of existing copyrights, violated the Copyright Clause of the Constitution. This litigation went all the way up to the Supreme Court, which rejected Lessig’s arguments unequivocally in Eldred v. Ashcroft. 4537 US 186 (2003). In doing so, the Court concluded its opinion by saying, “Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing the CTEA’s long terms. The wisdom of Congress’ action, however, is not within our province to second-guess.”

Given this track record, it might be said that Dotcom is more interested in making a statement than beating the charges.

The second thing about Lessig’s declaration that jumps out is an apparent contradiction between Lessig and Dotcom’s defense team regarding the applicability of the DMCA safe harbors to Megaupload.

In the white paper, Dotcom’s defense team says

Even if the U.S. government’s wishful expansion of the criminal copyright law into the realm of secondary infringement were tenable (which it is not), Megaupload is shielded from criminal liability by specific “safe harbor” provisions in the Digital Millennium Copyright Act (DMCA), included in the law to protect companies like Megaupload that make efforts to remove infringing material in response to “take-down” notices issued by copyright holders

But in his declaration, Lessig asserts “The DMCA is only a defense in the civil context”. The reversal is notable.

I do think Lessig is correct here. As I wrote in 2012 following the indictment,

Though [the DMCA] references only “infringement of copyright”—which could include both criminal and civil infringement—it merely shields service providers from “liab[ility] for monetary relief, or [in some circumstances] injunctive or other equitable relief.” This is civil lawsuit language—criminal defendants are punished with fines, not liable for monetary relief.

In addition, criminal liability would seem to preclude safe harbor protection solely as a matter of common sense. Criminal copyright infringement requires willful infringement. The DMCA safe harbor only protects service providers from liability for passive infringement. If the evidence shows that a defendant was willfully infringing copyrighted works beyond a reasonable doubt, it doesn’t seem possible that that same defendant could ever meet the requirements for safe harbor protection under the statute.

Nevertheless, for Lessig to contradict a point the defense has been asserting for three years cannot be welcome news for Dotcom.


1 Researchers found that “the shutdown of Megaupload and its associated sites caused digital revenues for three major motion picture studios to increase by 6.5-8.5%.”
2 I wrote previously about the arguments raised in the white paper here.
3 A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).
4 537 US 186 (2003).