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Kim Dotcom wins battle in ongoing fight against U.S. extradition

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Re: Kim Dotcom wins battle in ongoing fight against U.S. extradition

#121
post #25

Why is this guy's legal troubles news? Honestly. There's tons of rich jerks like him who have legal troubles that we don't hear about. But for some reason he likes to put out press releases about every step of the way and then they actually get picked up and upvoted on sites like this. Why? I really don't understand. It's not like he's some principled crusader fighting for a precedent that affects all of us. He's jus…

Nice to see I'm not the only one who's tired of seeing this guy. No, he wasn't technically responsible. Sure, his site complied with takedown requests to the extent they were required to and literally not one damn quarter inch further . Technically, technically, technically. He also profited directly off of and made no secret about enabling people to skirt copyright laws. I agree they need a lot of work, but you don'…

> his site complied with takedown requests to the extent they were required to and literally not one damn quarter inch further. Technically, technically, technically.

> you don't get to break the law simply because you disagree with it

I'm having a hard time seeing where complying with the law in full, but refusing to go above and beyond its demands, is supposed to be an inappropriate course of action when you disagree with it.

Re: Kim Dotcom wins battle in ongoing fight against U.S. extradition

#122

Earlier quoted context omitted.

While I agree with your first few paragraphs, and think that some of what you say could in principle be used in a skeleton argument mitigating against a large damages claim, it is unlikely that a downloader would be pursued as far as a formal claim for making a single copy, since the claimant is unlikely to recover all its costs even if it prevails in court. (Default judgments can be abused however; on the other hand…

I was just trying to imagine a situation where the damage claims would have to be evaluated even if the defendant won, or a settlement was reached, or the case got dropped. If the courts only ever examined the proven-liable claims for accuracy in the amount of liability, wouldn't that tend to introduce biases? Firstly, presupposing that the plaintiff's claims establish liability on the defendant, I think most people…

tl;dr: don't lie to a court; filing a claim is communicating to a court.

I don't think things are as bad as you think, and certainly not as bad as insufficient access to decent professional advocacy in the first place (due to pitifully underfunded systems of legal aid, poor systems of costs control for pre-trial and even pre-claim phases of litigation, and "gang-up" attacks where a private party pursuing a civil claim "inspires" a public prosecutor to make it difficult for the defendant to deal with that claim (if nothing else by having to split attention and resources with criminal law matters, including extradition)).

> imagine a situation where the damage claims would have to be evaluated even if the defendant won, or a settlement was reached, or the case got dropped

In private law (i.e., not a criminal or hybrid copyright case) this will happen only rarely in common law jurisdictions, and only if the judge suspects that one party or the other has been railroaded into an adverse outcome by sharp practice by the other party, and even then it will generally only happen on application (by a party to a court, including an appellate court).

Generally a settlement is considered a matter of contract between the private parties, and the court won't interfere with that unless it has reason to believe the contract is improper somehow. If there is a true meeting of the minds between the parties, the courts will be extremely reluctant to interfere absent a strong public interest. Likewise, withdrawing from a case is generally considered to be a voluntary action by the withdrawing party, and the courts again will generally avoid preventing that. Consider that in either case the court continuing proceedings will impose costs on all parties for the duration, and that ultimately one or more of the parties will be liable for those costs which would otherwise not have been incurred after the settlement agreement or unilateral withdrawal. That does not seem fair at first glance.

(Even in inquisitorial systems a party tends to have the right -- perhaps with agreement with the other parties -- to bring proceedings to a close earlier.)

> wouldn't that tend to introduce biases

Settlement law is an important area of knowledge for a litigation unit, and knowledge being power and settlements (in private law cases) being private agreements, it is unsurprising that the answer to that is "we don't really know because we don't have a full history to examine". Pitching a settlement figure vs the money value of a claim thus remains something of a dark art. Worse, since so few cases come to trial in places where the civil procedures encourage settlements, it is often hard for parties to guess whether their outcomes will be better or worse in accepting an offer vs proceeding to final judgement. It is even harder for parties to think about without expert advice when (as in the English system) costs follow the event. (I.e., when "loser pays", there is pressure on a party to think about how much that will be in the event it does not succeed at trial, especially when considering settlement offers early in proceedings.)

> knowing they will not be examined if you lose

That's not always the case. There can be cost consequences on a partially successful claimant, i.e., one who establishes liability but the court determines a much smaller money amount in damages may not be able to recover its costs from the defendant (and in some cases may have to contribute towards some of the defendant's costs!). This will strongly depend on the procedural rules of the trial court, and can vary e.g. between county court and high court in England & Wales almost as much as between an English court and a U.S. district court.

Moreover, there are money value thresholds which can determine the appropriate court, and if a higher value claim results in a more senior court deciding that its time has been wasted by a matter best tried in a more junior court, you can bet that the claimant may face a costs order that may wipe out any damages awarded.

> meaningful penalty for grossly overstating damages

Systems of private law tend to adapt to such things in due course.

(Indeed, if they do not do so on their own then that may provoke a legislature to try to fix things.)

In the U.K., for instance, overstating damages can lead to prosecution for fraud, and since the 2012 Zurich case [1] it is fairly clear that a trial judge is generally free to strike out the whole claim if a party dishonestly exaggerates a claim, the logic being that if a trial judge cannot trust that the claim is honest, then why should the judge trust any of the claimant's evidence.

Finally, if you do not intend to go to trial you should not file a claim! If you file a ridiculous claim for the purposes you suggest, you will find the defendant will quickly engage a no-win-no-fee (or similar) abuse-of-process litigator and it will cost you quite a bit of money to settle that (and even more if you are stupid enough to contest the matter). In general, it is not easy for a claimant to simply drop a claim (once filed) without the consent of the defendant. (As noted above, withdrawing unilaterally is permissible, but likely to be expensive!)

The details vary by jurisdiction, but in general private law courts are aware that there are abusive litigators and will usually try to disincent them very strongly. This fails sometimes in systems where one can "shop" for a judge on e.g. a subject-matter basis and where judges develop reputations as being particularly claimant-friendly. Specific examples, particularly in the U.S. district courts, have been discussed from time to time on HN... :-) However, one cannot hide such apparent failures of the system from appellate courts forever, and eventually unlucky abusive claimants can find their court-of-first-instance victories very expensively reversed or at least reopened.

(Although exceptionally uncommon, serially or outrageously abusive litigators in the UK -- and that includes legal persons who massively overstate damages -- may get added to this list: https://www.gov.uk/guidance/vexatious-litigants ; many ministries of justice in commonwealth jurisdictions maintain similar lists. The England&Wales list is almost exclusively litigants-in-person, since abusive companies and charities may be wound down).

- --

[1] Hayward v Zurich Insurance Company PLS [2016] UKSC 48 with an overview online here http://www.9goughsquare.co.uk/news/1195/

Re: Kim Dotcom wins battle in ongoing fight against U.S. extradition

#123
post #40

They should make a movie about this guy :D

Only if it includes his illegal and disgusting previous activities, see https://en.wikipedia.org/wiki/Kim_Dotcom#Legal_investigation... and https://de.wikipedia.org/wiki/Kim_Dotcom#Werdegang

How bad do you have to screw up to make this guy look like the hero?

Re: Kim Dotcom wins battle in ongoing fight against U.S. extradition

#124
post #86

Earlier quoted context omitted.

The exact same way that internet companies do. :-) As much as states don't want you to think about it, the Constitutional issues were settled back in the 1800s. If you do business with a company from another state, that is interstate commerce and only the Federal government can make laws about it. So, very importantly, your state government can't. However if the company and customer exist in the state, then state law…

>> After that it is all down to what it means for a company to exist in a state. For example if Amazon owns a subsidiary named A2Z Development which is doing software development in California for Amazon, does Amazon have a presence in California? It's called having a nexus - even a single employee counts as having nexus. I'm not sure about subsidiaries though.

Several states have passed laws saying that affiliates in a state are enough to establish a nexus. Precedent varies by court about whether this is so. For example New York said yes, Illinois said no. No case has yet found its way to the Supreme Court.

I do not know of precedent involving subsidiaries. But the legal case for it would seem to me to be stronger than it is for affiliates. And even if the courts did rule otherwise, well, if the state really wants to go after a local subsidiary, surely they can make their life hard in SOME way...

According to California law AB153, affiliates count as a nexus. This did not get legislated. Amazon responded by cutting off all California affiliates after that was passed. Then the issue of subsidiaries was raised. After some negotiation, California did not go after subsidiaries like A2Z Development, and Amazon started collecting California state tax in 2012.

Re: Kim Dotcom wins battle in ongoing fight against U.S. extradition

#125

Earlier quoted context omitted.

It depends on the country! In Spain for instance it's totally legal as long as there is no commercial intention. Both "distributing" and "copyrighted" are terms that some times have not such clear boundaries. Is giving your sibling a used DVD illegal? Is selling it to a 2nd hand store illegal? A book is clearly legal to resell, right? Then why wouldn't some digital material be? There is a whole industry interested in…

The main difference is scale; giving your sibling a used DVD is just a 1:1 exchange, uploading it to e.g. megaupload can potentially open it to millions of other people. There are laws about digital resale though; there was an EU ruling that indicated reselling digital-only products is legal.

These Spanish laws AFAIK are from the time where you would copy casettes and give them to your friends. The lawmakers recognized that spreading the culture in this way among your friends was more important than making this a crime. With internet there has been a lot of debate, but it is still pretty much the same. Though Spaniards are quite unhappy with American corporations trying to force their American laws on us and making us criminals while we do something perfectly legal stuff! (And also internally with the SGAE, but that is another topic).

Re: Kim Dotcom wins battle in ongoing fight against U.S. extradition

#126
post #64

Earlier quoted context omitted.

It depends on the country! In Spain for instance it's totally legal as long as there is no commercial intention. Both "distributing" and "copyrighted" are terms that some times have not such clear boundaries. Is giving your sibling a used DVD illegal? Is selling it to a 2nd hand store illegal? A book is clearly legal to resell, right? Then why wouldn't some digital material be? There is a whole industry interested in…

In Hungary, downloading is legal, uploading is not. This makes torrenting problematic, but they never go after torrent users. Also, there's a special "tax" on storage media (CD-R, DVD-R, USB sticks, HDD, etc.) which is supposedly used to compensate copyright holders via some obscure distribution mechanism (read: a big chunk is probably stolen somewhere down the line).

Oh yeah, we call that the "canon digital" and it sucks. Goes to few rich artists and it's not even stolen since they just keep it legally.

It was specially ironic when I was a teenager with a music band, we recorded some CDs of our own music. We were paying extra for the CDs in case we were pirating, so this money went to the SGAE and the like for artists while we were of course the artists who had to pay more! Talk about abuse of power.

Re: Kim Dotcom wins battle in ongoing fight against U.S. extradition

#127
post #111

Earlier quoted context omitted.

Um... Robin Hood was a fictional character. The schtick is what makes the legend. Without the schtick, he's just some schmuck that got busted for trafficking illegal copies of files. Don't confuse "being thoroughly amused by" with "falling for."

At the heart of the story Robin Hood is about a good person who was breaking unjust laws to fight for the little guy. Kim Dotcom wants you to think he is breaking unjust laws to fight for the little guy but he is actually doing it for his own personal enrichment either financially or egotistically. That it the distinction I want to make that I think was missing from your initial comment.

I'll grant you that, but it doesn't make it any less hilarious :P

Re: Kim Dotcom wins battle in ongoing fight against U.S. extradition

#128
post #40

Earlier quoted context omitted.

Only if it includes his illegal and disgusting previous activities, see https://en.wikipedia.org/wiki/Kim_Dotcom#Legal_investigation... and https://de.wikipedia.org/wiki/Kim_Dotcom#Werdegang

How bad do you have to screw up to make this guy look like the hero?

Did they really need to screw up? I think we're all on the same page here, it doesn't matter who you are or how much of a fuck up you are, if you're going up against the MAFIAA, pretty much everyone's on your side :P

Re: Kim Dotcom wins battle in ongoing fight against U.S. extradition

#129

Earlier quoted context omitted.

There's one other aspect to the damage calculation. It's admittedly even more subjective than the others in use, but in my opinion even more important. It's the subjective devaluation in the market of the content. If goods with zero marginal costs tend towards being priced at zero content creators need to raise the marginal cost of their goods to be above zero. With digital goods, the only ways to do that is to attac…

This is true, but none of that reduction is attributable to a suable party, even one the size of megaupload.

For sure. My point was just that it's the calculation that Hollywood studios should be thinking about internally when deciding how much spend on combatting piracy. At some point the expense becomes greater than the benefit. And I doubt they're so naive as to use the 1:1 calculation of each download being exactly equal to a lost ticket sale, except when it comes to press releases.
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