The Kim Dotcom film: How to avoid a trial for 5 years and counting

AUSTIN, Texas—I've been reading about the copyright saga of Kim Dotcom for years now, both on Ars and elsewhere. So I didn't think I'd have much more to learn when I went to watch the new documentary Kim Dotcom: Caught in the Web by Annie Goldson. I was wrong.

More than a story about the Internet, more than a story about US law and copyright, Dotcom's story has become about New Zealand. The country's judges hold Dotcom's destiny in their hands. In an indirect way, New Zealand's citizens have weighed in as well, as Dotcom took the extraordinary measure of using politics and publicity to fight the US government.

His legal drama has dragged out for more than five years now. But the huge delay isn't a coincidence. Through the Dotcom case, New Zealanders are faced with a deep question: what kind of relationship do they want with the United States? Goldson's documentary, funded in part by the New Zealand Film Commission, makes a great contribution by putting the focus on the democratic and political contest rather than legal nitpicking.

Straight away, the film grabs your attention by cutting to the dramatic event that got Dotcom in the world's eye: the raid on his 2012 mansion near Auckland. The movie then slides back to Dotcom's childhood to give us a more well-rounded view of the eccentric German. He was a relentlessly rebellious and intensely self-promotional hacker from a young age. Dotcom had a camera everywhere. He threw wild parties constantly, but he drinks no alcohol; he attributes his teetotalism to a difficult upbringing and an alcoholic father.

After a two-year suspended sentence for a hacking offense, Dotcom built up a reputation as a talented white-hat hacker who could help companies keep their data secure. But he couldn't stay out of trouble; a second offense, for insider trading, led to his arrest and a plea bargain.

Following his arrest, Dotcom saw his future outside Germany. He met his wife Mona in a nightclub in the Philippines and ultimately moved with her to New Zealand. Safely ensconced in Auckland, his file-storage site Megaupload prospered, even as Dotcom's wealth, not to mention his brazen attitude, produced rage in the US.

Dotcom fought the law

Watching Goldson's film, I became convinced that the case of the people versus Kim Dotcom is much more a political than legal matter.

If the case were a civil matter and Dotcom were to actually show up in court, there's little doubt he would be found in violation of US law. There was copyrighted material on Megaupload and its associated sites—Dotcom doesn't even deny that. He believes he should be protected under the Digital Millennium Copyright Act, which essentially strikes a bargain by exonerating websites from copyright liability if they take certain steps to ban and punish offending users.

But other sites, with much stronger DMCA defenses, have failed. The anecdotal evidence, combined with prosecutors' (admittedly cherry-picked) filings, suggests the amount of infringing material on Megaupload was massive. Megaupload's offer of cash rewards for the most popular uploads, a relatively small part of Dotcom's business, is strongly suggestive of a site that wasn't making its money as a simple cloud service for home movies. Prosecutors say those top uploaders were enabled and assisted by Dotcom and his staff.

It's not an MPAA-powered lawsuit that has Dotcom in a corner, however. Instead, he has joined a tiny club of people who are facing criminal copyright charges from US prosecutors. And the fact that Dotcom has, as he says, faced the use of military-level force for what should be a civil affair, has changed the calculus of everything. Rather than sending him straight to Virginia, the powers-that-be in New Zealand decided to take a second look at what they were about to do—and then a third, fourth, and fifth look.

At a time of discontent with copyright law, and later surveillance, the arrest looked over the top to many. New Zealand police initially said Dotcom was armed with a shotgun inside a kind of panic room, but that claim turned out to be false. The dogs, the helicopter, the police with automatic weapons—it all made an enormous impact in Dotcom's favor in New Zealand and abroad.

"It looked like we were taking down a Central American dictator," is how Jimmy Wales described the arrest.

... and hasn’t lost yet

Dotcom is a master marketer who knows how to turn a well-thrown party into friendship. Shortly after moving to New Zealand, he spent $500,000 (NZD) on a New Year's fireworks display for Auckland. At the height of the lobbying against Megaupload, while Hollywood critics said the site was a digital-age criminal scourge, Dotcom pulled off the unbelievable coup of making a Megaupload ad with major-label artists like Kanye West, Alicia Keys, and will.ia.m, among others.

At the one-year anniversary of the raid, Dotcom threw a party for his new company, Mega. It featured a reenactment of the raid, complete with a helicopter buzzing around the crowd and dancers in faux-military garb.

The year after Dotcom's arrest, government surveillance made headlines worldwide, including in New Zealand. It was revealed that New Zealand's GCSB spy agency had turned its surveillance powers toward internal targets, including Dotcom. That move led to Prime Minister John Key, who had forged closer ties with the US, apologizing to Dotcom.

The road had been paved for some odd alliances. The film recaps the stunning, and near-forgotten, press conference in which Dotcom was joined by three hardcore anti-surveillance activists: Glenn Greenwald, Edward Snowden, and Julian Assange. In hindsight, it's incredible that any of those three would have agreed to be on a stage with Dotcom, who has always been far more focused on his own self-preservation than the public interest. The sight of Dotcom trying to publicly bully a reporter into favorable coverage, while Greenwald sits quietly and watches, is pretty amazing.

The film recounts Dotcom's bizarre entry into New Zealand politics, as he tacked on his "Internet Party" to an existing left-wing activist party called the Mana party. It was a move that splintered the left wing of New Zealand's politics, with many activists not trusting that the brash foreign entrepreneur had any dedication to their beliefs.

While Internet-Mana made a huge media splash, it utterly failed at the polls, failing to win a single seat in parliament. Prime Minister John Key, whom Dotcom denounced as a puppet of the US, was re-elected with a strong plurality. Speaking about the loss on TV, Dotcom tearfully blamed himself.

His case has moved toward a kind of perfect paralysis, which it remains in today. New Zealanders can't quite seem to make up their minds about him. A judge held that the warrant against Dotcom was improper, but that was overturned on appeal. His extradition hearing finally went forward, and a judge ruled that he couldn't be sent out of the country on copyright charges—but he could on fraud charges. But it was the copyright allegations that allowed the police to raid his house in the first place. What's in store now is more appeals, including another likely trip to New Zealand's Supreme Court. That will keep Dotcom's lawyers busy—and keep their client in New Zealand for now.

It's a "split the baby" decision that doesn't please anyone. But it's also reflective of opinion in this divided small democracy. If Dotcom comes stateside, he'll get his day in court. But it's a longshot for him to prevail, and it will be a brutal process in which, as every Kiwi knows, the criminal defendant won't be treated well. So what happens next? It's a question New Zealanders can only answer for themselves. Defying the Department of Justice, no matter who is president, will likely come with a price.

In a brief chat after the film, Goldson told me she suspects Dotcom has worn out some of his welcome following the 2014 campaign. When I asked what she thought of Dotcom on a personal level, she said that she was of two minds. On the one hand, she couldn't relate to his overt lusting after wealth—since he's been a teenager, Dotcom has said he wanted to be a millionaire. But she admires what she called his "chutzpah" and willingness to stand up to power. Grappling with that dichotomy, Goldson has produced a rare thing: a documentary about a controversial Web personality that's balanced and informative.