Megaupload in New Zealand's Highest Court

With the long-awaited November 2020 decision of the Supreme Court of New Zealand in Ortmann et al. v. United States of America an important milestone was reached in the saga involving the allegations of criminal copyright infringement against the individuals involved with the Megaupload group of companies. Four of the individuals – the appellants in the case – have been resident in New Zealand for a number of years. Holding in favor of the United States, this country’s highest judicial body held that the criminal provisions in the New Zealand Copyright Act 1994 provide a legal basis for extradition to the United States. While the New Zealand chapter is not quite completed (a number of administrative law matters require further determination – and the final decision, to extradite, remains vested in the Minister of Justice), the copyright law aspects of the case are now closed. The case saw the New Zealand judiciary struggling with outmoded legislation that, on its face, appears not to have kept pace with new forms of criminal piracy via digital networks. While many other parts of New Zealand’s copyright legislation reflect a commitment to technological neutrality, its criminal provisions do not. It also illustrates the relevance of international copyright law in domestic law controversies. International law was invoked by the Court to explain its expansive interpretation of the criminal provisions. International law was also invoked by the appellants, in an attempt to narrow the application of the same provisions, an argument that ultimately failed. Finally, the case offers a perspective on “copyright transplants,” aspects of one nation’s copyright laws incorporated into those of another. The relevant provisions were the New Zealand equivalent of the safe harbor provisions in § 512 of the Copyright Act 1976 (U.S.). Ortmann advances a unique approach to the safe harbors, holding that they formed part of the substantive case against the appellants. The United States was required to establish, as an element of liability, that the safe harbors did not apply – quite a different approach from that suggested by the precursor U.S. legislation. Section 512 of the U.S. Copyright Act merely limits the remedies to which an internet service provider is exposed. While the Court’s reasoning on this point is difficult to reconcile with the statutory text or the legislative provenance, the Court’s conclusion is unlikely to make much of a difference in future cases: facts establishing that a civil or criminal defendant could not shelter in the safe harbors are likely to be the same facts that would also establish liability