Posts Tagged ‘New Zealand

Hang The Pirates — But Start With The Movie Moguls And Record Execs

- January 25th, 2012

Kim-Dotcom-Schmitz

 

Here’s the scene:

 

Law enforcement agents smash their way into a private building with sledgehammers and crowbars as part of a broad organized crackdown on “pirates” and “outlaws” who are brazenly flouting U.S. copyright and patent law, supposedly costing the legitimate copyright and patent holders a fortune in lost — “stolen” — revenue.

 

The legally mandated enforcers cause extensive, malicious damage and confiscate equipment, files, material and money that are the legal property of the building’s owner, who is charged with a variety of offences related to the alleged theft of intellectual property in the form of motion-picture films and technology.

 

Having shut down the business of the building without the necessity of a guilty verdict in court and having appropriated private property, again without a court finding of guilt, the enforcers leave the victim of their legally sanctioned invasion to pick up the broken pieces of his life.

 

Sounds a lot like Kim Dotcom (nee Schmitz), the Internet tycoon currently sitting in a New Zealand jail waiting for the U.S. government and its Hollywood backers to finally, slowly (the U.S. won’t actually produce documents for another month) get around to filing a formal extradition request on copyright infringement conspiracy charges.

 

But it’s not.

 

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The victim could have been Carl Laemmle or William Fox or one of the dozen other independent producers who were later glorified as the founders of Hollywood. The legal enforcers were hired thugs representing Thomas Edison’s motion picture trust, a monopoly combine that controlled almost all aspects of movie technology, production and distribution in the U.S. before World War I. And the time was 1910 — more than 100 years ago.

The House with Closed Shutters - 1910 - Sister sews Confederate flag

Edison considered Laemmle and the other independent film producers and distributors to be “pirates” and filed almost 300 legal actions against Laemmle’s Independent Motion Picture (IMP) Company between 1909 and 1912.

 

The legal manoeuvrings were just the semi-civilized tip of the iceberg. Below the surface, Edison’s gangs of enforcers smashed independent film studios and theatres, stole cameras, projectors and film stock, threatened and beat up cast and crew members on independent productions and, in some cases, burned down buildings and entire city blocks housing the competition.

 

One hundred years ago, Carl Laemmle’s shoes were a very dicey place to be, just as Kim Dotcom’s are today.

 

But Laemmle ultimately prevailed.

 

He held out against Edison’s legal (and illegal) onslaught, he moved his film production activities to the friendlier and safer climes of California, and he was the one who had the last laugh when U.S. federal court, topped up with Teddy Roosevelt’s Trust Buster justices, declared Edison’s Motion Picture Patents Company and General Film Company (distribution arm) to be an illegal monopoly and ordered the trust broken up.

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Meanwhile, Laemmle and the other independents who invented Hollywood (like William Fox, Louis B. Mayer, Sam Goldfish/Goldwyn, Jesse Lansky, Adolph Zuker, Marcus Loew and the Warner boys) thrived, expanded and exerted increasing control over the motion picture “industry.”

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COMPARE THESE TWO LISTS

 

The first list is the membership of Edison’s MPPC cross-licensing trust group: Biograph, American Vitagraph Company, Selig Polyscope Company, Lubin, American Star Films, American Pathe Pictures, Essanay Studios, and Kalem Company.

 

Those companies ruled the motion picture world 100 years ago. How many of them exist now? How many of their names even ring a bell except in some antique, ghostly corner of our brains?

 

Now here’s a list of the “pirate” film companies that were formed by the “outlaws” who fled to California to escape the legal constraints of Thomas Edison back in the eastern U.S.: 20th Century-Fox, Paramount Pictures, Metro-Goldwyn-Mayer, Universal Studios (successor company to Laemmle’s IMP) and Warner Bros.

 

Those five (later joined by Columbia Pictures, United Artists and RKO Radio Pictures) became the undisputed masters of Hollywood’s Golden Age and are still the dominant (monopolistic, some might say) players in the film industry.

 

Don’t believe me about the “monopolistic” part? You think the current film bid-ness is too diversified and freewheeling to be dubbed a monopoly?

 

Consider this:

 

When the Edison Trust was broken up, the U.S. department of justice alleged that the eight corporations participating in the monopoly controlled between 70% and 80% of a $100-million industry.

 

Today, the North American film industry is a $10-BILLION BUSINESS and ONLY SIX CORPORATIONS CONTROL 81.6% OF IT.

(That $10 billion is just “domestic” North American box office. “Overseas” accounts for roughly two-thirds of Hollywood’s business every year.)

 

Here’s a rundown of studio share of the $10,174,000,000 North American box office (Canada is considered part of the U.S. domestic market) for 2011, according to industry scorekeeper boxofficemojo,com:

 

1. Paramount (Viacom) — 19.2% ($1.96 billion)

 

2. Warner Bros. (Time-Warner) — 17.9% ($1.83 billion)

 

3. Columbia (Sony) — 12.5% ($1.27 billion)

 

4. Buena Vista/Walt Disney (Walt Disney Co.) — 12.2% ($1.24 billion)

 

5. Universal (Comcast-GE) — 10.2%  ($1.04 billion)

 

6. 20th Century-Fox (Murdoch’s News Corp.) — 9.6% ($978 million)

 

Everyone else in the world apart from these six companies shares the remaining 18.4%, compared to the 20-30% the independents had in the days of the Edison monopoly.

 

And those six studios have their own exclusive trade association, the Motion Picture Association of America, which looks after their interests — and their interests alone — in dealing with the world outside Hollywood.

 

It’s the MPAA which is currently driving the anti-piracy bus and which is howling the most with self-righteous indignation  and which is using every ounce of its bought-and-paid-for political influence (and that’s a lot) in Washington to pursue Kim Dotcom and other perceived “pirates.”

 

 

Soooooooooooo … Fast-forward 100 years from the Edison Trust’s all-out war to crush the independents to the modern media wars of January 2012.

 

The film corporations that were spawned by the very pirates and outlaws who created a hole-in-the-wall getaway hideout in Hollywood are now leading the charge to eradicate uncontrolled Internet access to works and technology they say they hold copyright and patent title to.

 

And they even use much of the same hypocritical, moralistic language that the Edison Trust used to claim the high ground over the shabby, nasty little rats, weasels, thieves and cheats stealing from them.

 

And it is that high moral tone wrapped in a judicial gown of legalistic rectitude that I find most offensive about this whole war against Kim Dotcom’s MegaUpload, The Pirate Bay and other Internet independents that the movie studios (and record companies) say are stealing milk from their babies’ mouths.

 

Why?

 

Because it is just so much hypocritical bull. The major movie and record companies uphold the law only because in this particular set of circumstances it benefits them.

 

They would (in most if not all cases) gladly bend or circumvent the laws of the United States or any other nation on earth if it better served their purposes — and they could get away with it.

 

That sanctimonious, Bible-spouting predator Thomas Edison, by the way, was not above piracy when it suited him.

 

Here’s part of the Wikpedia entry on Edison:

 

“In 1902, agents of Thomas Edison bribed a theater owner in London for a copy of A Trip to the Moon by Georges Méliès. Edison then made hundreds of copies and showed them in New York City. Méliès received no compensation. He was counting on taking the film to the US and recapture its huge cost by showing it throughout the country when he realized it had already been shown there by Edison. This effectively bankrupted Méliès.”

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Well, Edison’s piracy didn’t actually bankrupt Melies — that resulted from a later, poorly conceived business deal with the Pathe film folks in Europe, but the Edison rip-off sure didn’t help (even though Melies’ American Star Films was one of the corporate cogs in the Edison Trust monopoly.)

 

So there was certainly no evidence of “practise what you preach” in the behaviour of Thomas Edison or the movie-making kingpins who followed him.

 

 FOR THE RECORD

I’ve focused primarily on the film industry in this piece and left the music business aside because, frankly, the major-label recording industry has committed too many sins against music, art, humanity and common sense to fit into the already bursting confines of this space.

 

And, despite the proliferation of independent record labels, the “industry” is still quite monolithic and monopolistic in its traditional distribution practices — thus the panic over the uncontrolled inroads the Internet is making.

 

In terms of control, the cabal of mainstream industry titans is becoming a smaller group every year and none of the current crop of cabalistas is worthy of licking the L.A. grime off Mo Ostin’s shoes.

 

At the end of the 1980s, the recording industry in North America was controlled by the Big Six (BMG, CBS, EMI, MCA, WEA and PolyGram, the last of which deserved to die because it wouldn’t become a three-letter acronym).

 

By the end of the ’90s, it was the Big Five after Sony bought CBS and PolyGram and MCA merged into Universal Music Group (UMG).

 

In 2004, it became the Big Four when Sony acquired BMG.

 

And now, after Universal’s acquisition last year of the struggling EMI Group,  it is the Big Three: UMG, Warner Music Group and Sony Music Entertainment.

 

Consider this list of SOME (only some) of the labels owned and controlled by the Universal Music Group (the largest of the Big Three), once a subsidiary of the Universal movie empire but now a force unto itself owned by the French media (and formerly sewer) conglomerate Vivendi:

 

A&M Records, Geffen Records, Island Records, Def Jam Recordings, Motown Records, Mercury Records, Verve Records, Impulse! Records, Roc-A-Fella Records, Decca Records, Interscope Records, GPR Records, Deutsche Grammophon, Polydor Records, London Records, MCA Nashville Records, Lost Highway Records, Casablanca Records, Fonovisa Records,  Universal Music Classical, Universal Music Jazz, Universal Music Latino, Disa Records, Machete Music, Fontana International. And the list goes on.

 

Sony (second biggest of the B3) has a stable of labels that includes Columbia, Epic and RCA.

 

Warner Music Group is the un-biggest of the Big Three (and apparently suffering the most … And Then There Were Two?) but still controls more than 50 labels, from Asylum to Atlantic to Elektra and from Rhino to Rykodisc to Reprise.

 

So there are a lot of labels out there, but only three conglomerates control primary access to most of the recorded music that is today being purchased (or acquired without purchase, as the case may be).

 

The only thing I will say about the music recording industry and its war on piracy is this: Study after study has concluded that unpaid music downloads do not appear to be a significant factor in the continual decline of CD sales and the slower rise in “legitimate” digital sales.

 

(Don’t get into an argument with me about this: Argue with the smartypants who conducted the studies and came to the conclusions. And if you don’t know which studies I’m talking about, you have no business being in a discussion about the issue in the first place.)

 

Most of the blame is laid at the feet of the short-sighted, arrogant and ultimately self-defeating practices of the recording industry itself: As ye sow, so shall ye reap.

 

 

THOUGHT FOR THE DAY

“If you want to stop piracy, the way to stop it is by competing with it.”

— Steve Jobs

 

 

PERSONAL ASIDE

 

I have never illegally downloaded any music or video from the Internet or willfully bought pirated CDs or DVDs on the street. I know plenty of people who do, but I don’t advocate the practice and, in fact, I find it philosophically objectionable.

 

I believe — strongly — that artists, performers and creators of every type should be properly rewarded for their efforts and unique contributions, which enrich us all.

 

I believe — strongly — that anyone who abuses the rights and intellectual property of those creators, who steals from them and denies them the full fruits of their labours is scum and should be reviled and punished.

 

I also believe — strongly — that major movie studios and record companies have been some of the worst offenders when it comes to abusing the rights of creative artists, when it comes to stealing from and lying to creative artists, and when it comes to disregarding the laws and moral principles that should protect those creative artists, their rights, and their works.

 

Just ask any artist, musician, composer, actor, director or screenwriter who has had serious business dealings with either the film or music industry. If they are being honest, few if any of those artists will say they have not been ripped off (to a lesser or greater degree) in the process.

 

So it’s either laughable or a crying shame that some of the worst offenders when it comes to the abuse of intellectual property rights of others are often the most fervent defenders of copyright laws when it suits their purposes — and only for as long as it suits their purposes.

 

ANOTHER THOUGHT FOR THE DAY:

“If suing customers for consuming pirate copies becomes central to a company or industry’s business model, then the truth is that that company or industry no longer has a competitive business model.”

— Matt Mason, “The Pirate’s Dilemma: How Youth Culture Is Re-inventing Capitalism”

 

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LOOK BEHIND THE PROPAGANDA

 

Let’s get to Kim Dotcom for a moment, shall we?

 

I hate the guy.

 

He’s 6-foot-7, says he weighs 300 pounds (I know 300 pounds, baby, and this guy’s at least 350 — on a good day), and he’s got a high-pitched, annoying voice with a cartoon German accent.

 

Plus he legally changed his last name from Schmitz to Dotcom. What gall! Who does he think he is — Harry Warner (born Hirsch Wonskolaser) or David Bowie (born David Jones) or John Wayne (Marion Morrison) or even Uwe Blab (oh, sorry, that’s the former NBA player’s real name, unfortunately).

 

And he’s rich — filthy, stinking rich — and not even 40 yet. That really ticks off a poor old man like me.

 

He owns very expensive cars — a lot of them — and drives them all fast and crazy (although he’s apparently never had an accident or had his licence revoked). And he owns (or leases) a private helicopter, a jet and a yacht.

 

In short, Kim Dotcom is a greedy, arrogant A-hole.

 

But that’s not a crime.

 

If it was, then ALL of the heads of the major movie studios and record companies would be in jail. A majority of the CEOs of America’s top corporations would also be doing bunkies with Bubba. And I’d probably be convicted too.

 

But, as I’ve already said, none of those character flaws is a crime.

 

So why is Kim Dotcom sitting in a New Zealand jail right now and the rest of us greedy, arrogant A-holes aren’t?

 

Because the MPAA, through the auspices of the FBI and the U.S. government (abetted by the RCMP and the Canadian government and other governments), has ACCUSED Mr. Dotcom of engaging in a conspiracy to pirate the intellectual property of said MPAA members.

 

And Mr. Dotcom’s global Internet business — one of the largest Internet businesses in the world with millions of legitimate, lawful customers suddenly cut off from access to their legitimate, lawful personal data — has been shut down lock, stock and barrel while Mr. Dotcom sits in jail waiting to find out exactly what the details of the charges are and what the evidence is supporting those charges. So he can begin preparing a defence, first against extradition to the U.S. and secondly against the charges themselves in a U.S. court.

UPDATE (from The Wall Street Journal, 5:04 a.m. Jan. 26, 2012): 

“WELLINGTON— A New Zealand judge granted bail to Megaupload.com executives Bram van der Kolk and Finn Batato as they await possible extradition to the U.S. on charges including copyright infringement, after the judge decided they posed a minimum flight risk.

“Mr. Van der Kolk, 29 years old, and Mr. Batato, 38, were arrested (last) Thursday in Auckland along with Megaupload.com founder Kim Dotcom, 38, and Mathias Ortmann, 40, the chief technical officer, after they and four colleagues were named in a Federal Bureau of Investigation indictment.”

Kim Dotcom’s bail application was turned down Wednesday and Matthias Ortmann’s bail application is expected to be heard Friday, Feb. 3 (it has been postponed once).

Hmmm, which ones have cut the deal, I wonder?

And it will be interesting to see which company employee provided the insider e-mails that the U.S. government is using (selectively and out of context) to help make its case.

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Just stop and think about your opinion of Kim Dotcom for a moment.

 

If your opinion is, like mine, a largely negative one, consider the source of the information on which we have based our views.

 

The general picture of Kim Dotcom is, in large part, the result of a co-ordinated, sustained negative PR campaign launched and directed by Dotcom’s enemies in the film and record industry.

 

Of course Dotcom has revelled in his bad boy image and hasn’t helped his cause by flaunting his obscene wealth and apparent disrespect for his elders.

 

But why is it that all of his actions are seen in the worst possible light instead of the best possible light or — even better — in a neutral, unbiased light? Because spin doctors are paid to put the worst possible valuation on Dotcom’s actions, appearance, attitudes and acquisitions. And he’s not even a GOP presidential candidate. Crikey.

 

Everybody seems to be buying into the propaganda and selling the same story when — if you consider the facts without the bias — it would be just as easy to put a less sinister (or even benevolent) spin on the Dotcom story.

 

When Dotcom appeared at a bail hearing in New Zealand on Monday, Crown attorney Anne Toohey even cited Dotcom’s alleged “lack of respect for authority” as one of the reasons why Dotcom posed an extreme flight risk.

 

The Edison Trust carried out a similar damning PR campaign against Carl Laemmle and other “pirates” a century ago, mocking Laemmle’s appearance (he was a wizened little five-foot-nothing gnome with a funny German accent and strange personal habits) and casting his actions in a sinister, conspiratorial, anti-American light.

 

Every story I see about Kim Dotcom’s arrest refers to the fleet of expensive cars he owns or leases.

 

And the crime in this is …? Quick, somebody — anybody — arrest Jay Leno. I think he owns more expensive cars than Kim Dotcom. And I don’t like the way he looks, either.

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Speaking of which, many stories about Kim Dotcom refer to his Hollywood enemies calling him “Dr. Evil.” That’s just for home consumption. Actually, Dotcom is more often compared in Hollywood to another Austin Powers villain, also played by Mike Myers: Fat Bastard.

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See what I mean? There’s no crime in how Kim Dotcom looks or acts, but it certainly helps his enemies if he is seen in the worst possible light. Hang the Fat Bastard!

 

His criminal record? Actually he has no criminal record. Really.

 

Kim Schmitz was convicted of computer hacking in Germany in 1998, fined and given a suspended sentence. In 2002, he was convicted of insider trading, fined and placed on probation.

 

He has never been convicted of a criminal act anywhere else in the world.

 

For the past decade, Kim Dotcom has kept his nose clean, as far as the courts are concerned. Under German law, with its clean slate provisions designed to help convicted felons re-integrate into society, that means Kim Dotcom’s criminal record has been expunged and he now, for all intents and purposes, has no criminal record.

 

I know that sounds like legalistic sleight of hand, but it does make you think a little differently about the man than the pre-packaged Fat Bastard storyline projects, doesn’t it?

 

“He has no criminal record, has never been convicted of a crime of violence, and has never been sent to jail for committing a crime.”

 

Not quite the same picture as the one we’ve been fed, is it?

 

That doesn’t make it right or true or good — and it certainly doesn’t make Kim Dotcom an innocent man — but it does take a little of the sting out of the “guilty by appearance” mudslinging campaign.

 

And why exactly did it take 60-70 New Zealand police officers in helicopters to raid Dotcom Mansion and arrest a man who would have shown up in a Crown attorney’s office with his lawyers if asked?

 

Who’s idea of a Wild West show was that?

 

As many helicopters and twice as many attackers to take down Fat Bastard as the U.S. used to take out Osama bin Laden?

 

Somebody’s been watching too many Hollywood movies — and has their law enforcement priorities seriously screwed up.

 

By the way, when was the last time you saw a story on Dotcom mention the number of cops involved in arresting him? I think a few people in New Zealand are a little embarrassed by the serious overkill and are trying to quietly disengage a bit.

 

How about the gun?

 

Here’s what Australia’s Sydney Morning Herald had to say about Monday’s bail hearing:

 

“(Crown attorney Anne) Toohey detailed how, during the police raid, Dotcom had run from police to a safe room, hiding behind a pillar and refusing to show his hands despite repeated pleas. A gun — believed to be a modified shotgun of a kind illegal in New Zealand — was found in an open safe just metres away.”

 

I am absolutely confident that no charges or criminal proceedings will ever be launched against Kim Dotcom regarding this weapon “believed to be a modified shotgun of a kind illegal in New Zealand.”

 

It suits the purposes of all Dotcom’s accusers much more to leave this vague, threatening image of a murderous, illegal gun floating around out there than it would to have the gun’s particulars examined in court and to examine exactly how the whole invasion of Dotcom Mansion went down.

 

It would probably turn out that the shotgun is perfectly legal and part of a standard New Zealand safe room protection/survival kit much like LOTR director-producer Peter Jackson probably has in the safe room in his New Zealand mansion.

 

These guys are fabulously wealthy and as such are subject to the constant possibility of violent home invasion and/or the kidnapping of themselves or their families.

 

(Kim Dotcom, by the way, has three adoring children and is married to a loyal, loving woman who is now pregnant with twins. They’re all living in New Zealand. The New Zealand government holds all their passports. And Kim Dotcom’s known assets have been frozen. Does this really sound like a man who is an extreme flight risk? Or does it sound like a man who is being put in a position where he looks bad and is least able to defend himself?)

 

Again, I’m not defending Kim Dotcom. He’s more than able to do that himself — if he’s given a fair, fighting chance. But that takes money and Dotcom’s attackers are doing their very best to deprive him of his own money with which he can mount the best possible defence.

 

The FBI and MPAA claim that Dotcom has made something like $175 million from his acts of piracy in the last couple of years. The MPAA represents a business group that made more than $8 billion in North America alone in the single year 2011. Even if Dotcom were allowed out of jail and allowed access to his own money, it’s not really a fair fight — but at least it would be a little fairer.

 

I do not like the way this whole thing has gone down. It stinks.

 

I don’t like the bully-boy tactics. I don’t like the idea that justice has to be bought. I don’t like the idea that crushing one man can become a government priority because he offends the commercial interests of a specific group of well-connected businessmen.

 

And I most definitely do not like the hypocritical, moralistic stance that these self-serving moneymen and their hired vassels adopt when they are, in fact, just trying to eliminate someone whom they perceive — rightly or wrongly, but so far without proving anything — as profiting from the usage of their property.

 

Like I said, they only get up on their high horses and proclaim the sanctity of copyright law and intellectual property rights when it is in their financial interests.

 

Consider this:

 

The Berne Convention for the Protection of Literary and Artistic Works was an international copyright agreement signed by most of the major countries in Europe in 1886 and 1887. Since then, roughly 150 other nations around the world have signed on.

 

Canada has been a member of the Berne Union since 1887 (under the auspices of Great Britain) and signed on itself in 1928 in the run-up to full self-government independent of the British Privy council.

 

The United States finally joined the Berne Convention in 1989, only a couple of years before Bill Clinton became president and more than 100 years after the original signatories.

 

Such beacons of artistic enlightenment and human rights as Burkina Faso, Libya and Zimbabwe and 100 other nations had all signed the Berne Convention before the U.S.

 

And before joining the Berne Union, the United States gave copyright protection only to works produced in the United States.

 

A book could be published in France or Japan or Canada and, if there was no deal with an American publisher, anyone in the United States could appropriate the contents of that intellectual property for their own purposes and the U.S. government had boo-all to say about it.

 

Same went for movies and music.

 

There were some individual cross-deals that muddied the water, of course, but the United States in general didn’t recognize the proprietary rights of foreign copyright holders.

 

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ONE FINAL KICK AT THE KIM DOTCOM CAN

 

You’d think Kim Dotcom would have a fair shot at beating the (possibly) bogus extradition case since New Zealand is one of the fairest, most democratic countries in the world, but you would be wrong.

 

The film industry and related businesses (such as Weta Workshop and Peter Jackson’s CGI computer animation operations) form the fourth largest economic sector in New Zealand, after the service industry, agriculture and tourism. And most of that sector is directly tied to the Hollywood status quo represented by the MPAA.

 

So I am willing to bet that pragmatic power politics will play a strong enough role in the New Zealand judicial process to boot Kim Dotcom’s fat ass out of his erstwhile island paradise.

 

I hope I’m wrong — for New Zealand’s sake more than Dotcom’s — but my money, if I was a betting man, would back extradition.

 

I am willing to bet that Kim Dotcom will ultimately beat the pirating charges — much as Hollywood founder Carl Laemmle did 100 years ago — IF he has the money to pursue the court fight through the five years — at least — it will take to resolve.

 

That is why the MPAA (through the FBI and the U.S. government) has done everything it can to seize Dotcom’s assets around the world and shut down every source of income stream Dotcom has available.

 

They — the MPAA and its U.S. government agents — want to choke off Dotcom’s money supply so he can’t afford to pay for the massively expensive top-drawer legal defence that will be necessary to fight the massively expensive top-drawer prosecution being brought against him.

 

Again, my money is on Kim Dotcom.

 

When asked why he had the effrontery to suggest he would one day be richer than Bills Gates, Dotcom said: “Because I’m smarter than he is.”

 

I think Dotcom’s also smarter than the (other) greedy, arrogant A-holes who run Hollywood. So as long as Dotcom has enough money to pay for a level legal playing field, I think he will eventually win.

 

But in the meantime — based solely on accusations — Dotcom’s business, MegaUpload, has been shut down.

 

Why is this any different than the U.S. government seizing the property and assets of an accused Mafioso crime boss?

 

Because the shutdown of MegaUpload affects millions of people — honest, legitimate, law-abiding people around the world who have bought and paid for a legitimate hi-tech data storage and retrieval service.

 

The formal charges against Kim Dotcom — when they finally come — will not say that Dotcom stole anything from anyone; the charges will accuse Dotcom of participating in a conspiracy because the legitimate hi-tech business he created was used by a very small portion of his clientele to share possibly illegal pieces of data.

 

Every legitimate service provider in the world — outside of Hollywood — should pray that Dotcom is ultimately vindicated or else we’re all in danger of being victims of a witch hunt.

 

Consider this fictitious (but imaginable) scenario:

 

Suppose Bell Canada feels threatened by Rogers Communications. Because this fictional Bell Canada suspects that some Rogers customers are using the Rogers telecommunications network to carry out illegal activities and because Bell Canada can make up a convincing (if spurious) case that Rogers is aware of  and profiting from the illegal activity, the Canadian government charges four or five senior Rogers executives with conspiracy — and shuts down the whole Rogers telecommunications network.

 

And closed-for-business the Rogers network remains until the whole nightmarish case can wind its way through the labyrinth of the Canadian judicial system, with the strong likelihood that Rogers will end up winning and be allowed to resume business — five or 10 years after it has been knocked out of the marketplace, its income cut off and its customers long gone.

 

And imagine the millions and millions of legitimate Rogers customers who suddenly found themselves denied the telecommunications service they had paid for and counted on. Their lives would be in chaos, their businesses immeasurably harmed, and important stored data lost forever in a technological lockdown.

 

For this evil, fictional Bell Canada, the process is a success. Rogers doesn’t have to be convicted of anything for make-believe bad Bell Canada to be a winner in that scenario. Just by killing Rogers’ business for five or 10 years, the fictional Bell Canada heavyweight comes out ahead.

 

In the short term, anyway. In the long term, fictional evil Bell Canada would probably go the way of the dinosaurs because somebody else was investing in innovation to take away their advantage instead of investing in retrograde, malicious litigation to sustain a fatally flawed business model.

 

That’s essentially what’s happening in the Dotcom-MegaUpload case.

 

I am not pre-supposing that Kim Dotcom is innocent of everything — or anything, for the matter. But is it really right that he be pre-supposed guilty of everything of which he is accused?

 

Hollywood has already won by the simple fact that MegaUpload has been shut down — at a tremendous cost to both a legal international business and millions of innocent-victim customers.

 

Not one damn thing has to be proved against Kim Dotcom and the other executives of MegaUpload for this attack on their business to be a complete success.

 

That scares me tremendously — and really makes me mad.

 

Should the full might of the American government, the Canadian government and several other governments around the world be brought to bear on a legitimate company that is (possibly) being used for (possible) illegal data sharing to mollify Hollywood?

 

Let’s take a look at what the World Intellectual Property Organization Copyright Treaty, a 1996 sister agreement to the Berne Convention, has to say:

 

“It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention.”

 

But that doesn’t matter.

 

Hollywood wants to take out the communications enabler — Kim Dotcom and his company, MegaUpload — rather than trying to catch the little fishes one by one.

 

I think we all suffer a far greater loss if this abuse of power and arbitrary authoritarianism is allowed to prevail than any loss we would suffer as free and law-abiding people if we make them actually prove the crimes before administering the punishment.

 

So I’m in Kim Dotcom’s corner because I tend to favour the underdog — even if he is a greedy, arrogant A-hole.

 

UPDATE: Here’s a link to a very informative (and quite short) analysis of the MegaUpload situation by Yochai Benkler, professor of entrepreneurial legal studies at Harvard Law School, from the Bloomberg business news agency. Interestingly, the clip is posted on YouTube, which Prof. Benkler points out could be charged with all of the same conspiracy trespasses the U.S. government is levelling at MegaUpload. The difference, Prof. Benkler says, is that YouTube is now too big and powerful for the U.S. Department of Justice to take on. Plus, the government (and film industry) tried to whack YouTube five or six years ago through civil litigation — and got its ass handed to it on a platter by YouTube.

Here’s part of what Prof. Benkler has to say:

“When a new technology comes along … and destabilizes the way the industries have always made money, the first gut response throughout the 20th century has been: Let’s shut down this technology…

“What’s chilling here is that a company can be served with a one-sided indictment that lists a whole set of quasi-legitimate and legitimate technological components that lots of other companies use…

“By the time it will be finished litigating whether that’s enough or not it is dead, because these procedures for forfeiture during the trial will kill the company.”

In other words, the status quo wins just by tying up the accused offender in court and shutting down the targeted business for the duration of the litigation process — which can be three, four, five, even 10 years.