Kim Dotcom’s latest attempt to avoid trial for copyright infringement in the US has failed, with a US District Court Judge ruling that the improper delivery of a summons isn’t enough to dismiss the case outright and calling the very suggestion “extreme.”
Dotcom, along with six other employees of Dotcom’s online file sharing service Megaupload, face charges of criminal copyright infringement, racketeering, money laundering and fraud as a result of the service’s use for those who sought to share and publicly release pirated material and other illegal content. Additionally, Megaupload itself is being charged as a corporation as being criminally liable for the various infringements, and it is this last fact that Dotcom’s legal team had been seeking to destroy by pointing to failures in the process. The problem, according to Dotcom’s attorneys, is that Rule 4 of Criminal Procedure in US law clearly states that summons should be mailed to a company’s “last known address within the district or to its principal place of business elsewhere in the United States.” That, they argued, hadn’t happened as attempts to deliver the summons instead centered around Megaupload’s business address in Hong Kong, and as a foreign business, had no principal place of business in the US.
District Court Judge Liam O’Grady wasn’t having any of that argument, however. Agreeing with prosecutors that the logical outcome of that argument would be that any business outside of America would be able to escape prosecution on a technicality, he wrote that “It is doubtful that Congress would stamp with approval a procedural rule permitting a corporate defendant to intentionally violate the laws of this country, yet evade the jurisdiction of United States’ courts by purposefully failing to establish an address here.”
Furthermore, he said, “Rule 4 does not require a result so extreme as dismissal, and to this Court’s knowledge, no court has ever dismissed an indictment for failure to meet Rule 4’s secondary mailing requirement.” Even so, O’Grady argued, it could be seen that Dotcom, to all intents and purposes, is, Megaupload, and therefore, serving him with a summons is the same thing as serving the company: “So long as the government could prove that an individual defendant is an alter ego of the corporate defendant, the government could satisfy Rule 4’s mailing requirement by mailing a copy of the summons to one of the individual defendants once that defendant is extradited to this district.”
In other words, there are multiple reasons for the US not to throw the case out for this reason. Dotcom’s attorneys shouldn’t feel too glum about this outcome, though; recent events have suggested that they’ll have many more chances to try and weaken the case through technicalities and ineptitude in future.