When Megaupload and Kim Dotcom were raided five years ago, the authorities seized millions of dollars in cash and other property.
The US government claimed the assets were obtained through copyright crimes so went after the bank accounts, cars, and other seized possessions of the Megaupload defendants.
Kim Dotcom and his colleagues were branded as “fugitives” and the Government won its case. Dotcom’s legal team quickly appealed this verdict, but lost once more at the Fourth Circuit appeals court.
A few weeks ago Dotcom and his former colleagues petitioned the Supreme Court to take on the case.
They don’t see themselves as “fugitives” and want the assets returned. The US Government opposed the request, but according to a new reply filed by Megaupload’s legal team, the US Government ignores critical questions.
The Government has a “vested financial stake” in maintaining the current situation, they write, which allows the authorities to use their “fugitive” claims as an offensive weapon.
“Far from being directed towards persons who have fled or avoided our country while claiming assets in it, fugitive disentitlement is being used offensively to strip foreigners of their assets abroad,” the reply brief (pdf) reads.
According to Dotcom’s lawyers there are several conflicting opinions from lower courts, which should be clarified by the Supreme Court. That Dotcom and his colleagues have decided to fight their extradition in New Zealand, doesn’t warrant the seizure of their assets.
“Absent review, forfeiture of tens of millions of dollars will be a fait accompli without the merits being reached,” they write, adding that this is all the more concerning because the US Government’s criminal case may not be as strong as claimed.
“This is especially disconcerting because the Government’s criminal case is so dubious. When the Government characterizes Petitioners as ‘designing and profiting from a system that facilitated wide-scale copyright infringement,’ it continues to paint a portrait of secondary copyright infringement, which is not a crime.”
The defense team cites several issues that warrant review and urges the Supreme Court to hear the case. If not, the Government will effectively be able to use assets seizures as a pressure tool to urge foreign defendants to come to the US.
“If this stands, the Government can weaponize fugitive disentitlement in order to claim assets abroad,” the reply brief reads.
“It is time for the Court to speak to the Questions Presented. Over the past two decades it has never had a better vehicle to do so, nor is any such vehicle elsewhere in sight,” Dotcom’s lawyers add.
Whether the Supreme Court accepts or denies the case will likely be decided in the weeks to come.
