What The Pundits Are Missing In The Megaupload Case

Media types are claiming that prosecutors will find it hard to pin copyright charges on Kim Dotcom, the 300-pound executive whose website Megaupload let users share millions of movie and music files.

But this speculation overlooks the fact that the feds have an easier tool than copyright law to convict Dotcom — the law of conspiracy.

The legal debate centers on the man nicknamed “Dr. Evil” who was arrested last week in New Zealand and now faces extradition charges. A judge this morning denied him bail, citing Dotcom’s enormous wealth and multiple passports.

The US charges against Dotcom, who was nabbed in a panic room clutching a sawed-off shotgun, are based on an indictment unsealed last week that accuses him and six others of criminal copyright and three other charges.

Contrary to many reports, those other charges are not about money-laundering and racketeering but instead about conspiracy to commit those crimes. The distinction is important because conspiracy charges are a key law enforcement tool for the federal government that, critically, do not require proving the underlying crime.

“It’s a huge engine for the government and one of its bread and butter statutes,” says Miriam Baer, a criminal law specialist at Brooklyn Law School.

Under federal law, a person is guilty of conspiracy if they agree with another person to commit an illegal act and then any person in the conspiracy does something to move the plan forward. This means that the conspiracy doesn’t have to be successful — only that someone performs an “overt act.”

Baer says this can be “particularly easy” to show because an overt act can be anything from a phone call to an email message. “There’s usually plenty of overt acts to choose from.”

This means that debates about the scope of US racketeering laws or the way that safe harbors apply to Megaupload may not matter in the end. Instead the government simply has to show that the Megaupload gang agreed to engage in racketeering, money laundering or criminal copyright and that they took a step to do so.

According to Baer, the conspiracy laws also provide the government with considerable leverage that makes it easy to flip individual defendants. That’s because everyone is responsible for what anyone else does in the conspiracy and the law carries stiff penalties — meaning the government can use the promise of a lenient sentence to try and turn one of the seven Megaupload defendants into a witness against the others. “Conspiracy charges are particularly valuable [to the government] because it doesn’t matter if you are a big or small part of the conspiracy,” she says.

And on top of this, procedural rules further tip the scale in the government’s favor. Specifically, in conspiracy cases, prosecutors can introduce evidence that would normally be excluded as hearsay.

All of this means that any future trial is likely to likely to turn on what Dotcom and the others actually believed they were doing. As Baer points out, the prosecution must show that the defendants agreed to do something they knew that was illegal — not just that they made an agreement.

For now, any trial is a ways off as the extradition proceedings for Dotcom and three others wind their way through the New Zealand courts. Three other defendants are still at large.