Thursday, 27 June 2019

Kim Dotcom and his Megaupload associates have just had their latest appeal heard by the Supreme Court.
As reported in IPKat, the US Government has since 2012 been seeking the extradition from New Zealand of Kim Dotcom, the founder of Megaupload, based on charges of criminal copyright infringement in the US.  The Megaupload site in the US was primarily used to store infringing digital copies of movies – often ripped from DVDs.  Each uploader would receive a link which they could share via third party websites. 

In 2018 the New Zealand Court of Appeal confirmed that there must be a New Zealand copyright offence corresponding to the alleged US offence and decided that under the Copyright Act 1994 (NZ) communicating infringing digital copies of movies constituted a criminal infringement.
While ‘communicating a work to the public’ is a civil infringement there is no specific  equivalent in the Act’s criminal copyright provisions.  The closest criminal provision was, ‘Every person commits an offence … who … (d) in the course of business, (iii) distributes … an object that is, and the person knows is, an infringing copy of a copyright work.’  The Court of Appeal decided the word ‘object’ was not limited to tangible items and included digital files which were stored for access in Megaupload’s websites.
Kim Dotcom not surprisingly appealed this decision to the Supreme Court.  In an effort to strengthen its argument that Megaupload’s operation was criminal the Crown prosecutor has alleged that certain computer offences contained in the NZ Crimes Act have been committed.  That is, non-copyright crimes.  The Crown is also cross-appealing the Court of Appeal finding that for extradition the usual requirement for double criminality contained in the Extradition Act prevails over a treaty with the United States which might suggest otherwise.

It is unfortunate that none of the judges on the Supreme Court bench has IP law experience and further, this is only the second appeal involving copyright that has been heard by the Supreme Court since it was set up in 2003.

It is likely to be some months before the Supreme Court hands down its judgment.
The Federal Court of Australia in APRA v Telstra & others has recently granted blocking orders against internet service providers to prevent their users from accessing a number of off-shore stream ripping sites.

Since 2015 the Australian Copyright Act (section 115A) has provided a blocking order remedy for copyright owners whose copyright is being infringed by foreign websites, but this seems to be only the second blocking order case so far.  It should be noted that the remedy provided by s.115A can only be used against infringers who are located outside Australia and not any that might be located in Australia.

In the APRA case the targeted online sites were facilitating the infringement of the music and sound recording copyrights embodied in promotional music videos which had been uploaded onto YouTube by recording companies.  The YouTube licence and technology for allowing users to only receive streams was selected.  However various ‘pirate’ sites such as 2conv, Flv2mp3, Convert2mp3 and Flvt0 exist to receive a user request for a music video song and from the streamed video from YouTube create an audio file which is then downloaded to the user – ‘stream ripping’.
Perram J had no difficulty in deciding to issue blocking injunctions against the defendant service providers to deny access to 2Conv, Flv2mp3, Convert2mp3 and Flvt0.

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