Bram van der Kolk and Mathias Ortmann during the 2015 extradition hearing. Photo / File
Bram van der Kolk and Mathias Ortmann during the 2015 extradition hearing. Photo / File
COMMENT: At the Supreme Court, hunched low and squat opposite Parliament, two men sit and watch as their fate is decided.
Kim Dotcom hasn't come to the Supreme Court hearing where it is being decided if he and fellow Megaupload accused should be extradited to the United States.
He stayedin Queenstown, using Twitter to declare innocence over claims he led a criminal enterprise which deprived the movie and music content industry of $500m.
Finn Batato, Megaupload's former marketing manager, came and went on Monday. He lives in Auckland, staying in Wellington is expensive, he has bills to pay and a job to get to.
Mathias Ortmann and Bram van der Kolk are stayers. They've spent every minute the court is in session seated in the public gallery, facing the five justices who will decide their fate. It has been this way since their arrest in 2012.
They were Megaupload's midwives, the computer programmers who took Dotcom's idea of a website to which people could upload files and share links and brought it into the world.
During breaks, they wait in the court foyer and then return to their seats when the judges begin again. They stay to the end of the day, disappearing into Wellington's streets until the next day.
As the days passed, the case moved from the Supreme Court hearing reasons they should not go to the reasons they should.
Megaupload accused Bram van der Kolk and Mathias Ortmann arriving at the Supreme Court. Photo / Getty Images
Inevitably, there came the emails.
These have been a feature of the case since the arrests in 2012 - the FBI secured access to Megaupload's email servers and in doing so captured years of conversation between the accused.
Presenting the United States' case, Crown lawyer Fergus Sinclair was questioned about takedown notices. This is the practice through which copyright owners tell websites they host infringing material. Megaupload received millions of such notices, and has claimed it took them seriously.
Not really, says Sinclair, mentally thumbing through six years of captured Megaupload email conversations for a discussion about takedown notices.
Ortmann and van der Kolk braced. They were, once again, to be damned with their own words.
Sinclair points to an email chain from April 2009 when Megaupload deleted 14,000 links which copyright holders in Mexico claimed pointed to works subject to copyright.
It's an exchange in which Dotcom is said to have complained that removing the links cost Megaupload money. Put them back, the email chain shows him saying.
It's a conversation thread which has Ortmann and van der Kolk debating the benefit and risk of doing so. Van der Kolk says "Mexico is just Mexico, we could ignore them", to which Ortmann apparently responds, "it's not like Mexico is going to sue us in Hong Kong".
Sinclair quotes Ortmann - a decade younger then - saying "calculated risk could work here".
The Megaupload accused in 2012 - Bram van der Kolk, Kim Dotcom, Mathias Ortmann and Finn Batato. Photo / File
It's an exchange the US says reveals the essence of Megaupload - not a business, as claimed, but a deliberate, organised "executive conspiracy". The vast span of such evidence proves the conspiracy exists, he says, and justifies extradition to the US.
In US law, that conspiracy charge is called racketeering. Justice Susan Glazebrook asks later in the day about evidence for one charge appearing to be used in others, with a potential compounding effect on sentencing.
Kieran Raftery, also acting for the US, says similar "overlay" can occur in New Zealand courts.
But not with the impact of racketeering, says Glazebrook. "Do we in New Zealand ignore the fact someone in New Zealand might get two years but in the United States would get 80 years?"
Yes you do, said Raftery. "The actual decision to extradite is not for the courts."
That decision lies with Minister of Justice Andrew Little, across the road in the Beehive. If the Supreme Court upholds extradition, his considerations will include such considerations and then face potential legal challenge.
Everyone knows it's coming, if it gets that far. "This is for the later judicial review?" Glazebrook jokes to Raftery, who says: "It's coming your way… if the minister is in a position to make a decision."
From Queenstown, Dotcom throws twitter bombs at his foes: "US Empire is stealing and storing emails, files and communications of everyone in the entire world. My accusers are the biggest pirates and the largest criminal conspiracy imaginable."
In Auckland, Batato goes to work. He's a father now. He has bills to pay. His fate is being decided without him.
In Wellington, Ortmann and van der Kolk continue to be haunted by decade-old emails.
