Online copyright infringement is still actionable in New Zealand
Wednesday 22nd February 2017
Article written by: Thomas Huthwaite
The New Zealand High Court has ruled that Kim Dotcom and other Megaupload executives are still eligible for extradition. While online copyright infringement may not amount to a crime under the Copyright Act, it may still attract criminal liability under the Crimes Act. How does this decision impact New Zealand’s digital copyright law?
On Monday, Kim Dotcom made a bold statement via social media:
That statement needs context.
The case Dotcom refers to is the latest High Court decision in the Megaupload saga. The US seeks the extradition of Dotcom and three other Megaupload executives facing 13 criminal charges, including conspiracy to commit copyright infringement and criminal copyright infringement.
Two New Zealand courts have now held that Dotcom and the other Megaupload executives can be extradited to the US to face the various criminal charges. The New Zealand courts have had to decide whether the US charges fall within the type of offending listed in the US - New Zealand Extradition Treaty. In order to do so, the alleged offending must amount to a criminal offence in New Zealand. Mere civil liability would be insufficient.
The most recent judgment of Gilbert J in the High Court held that online communication of copyright works to the public is only actionable under the New Zealand Copyright Act as a civil suit and is not a criminal offence. From this, Dotcom appears to have concluded that online copyright infringement is not a crime in New Zealand.
However, Gilbert J then upheld the District Court’s finding that alleged dishonesty in dealing with digital files (including wilful infringement of copyright) may amount to a criminal offence under the New Zealand Crimes Act. In other words, while online copyright infringement may not be a criminal offence under the Copyright Act, it certainly does give rise to civil liability, and it may still give rise to criminal liability under the Crimes Act.
The High Court has therefore held that the allegations against Dotcom and the other Megaupload executives still amount to criminal offences, which renders them liable to extradition. Further appeals are likely.
If you’re interested to continue reading our detailed analysis summarises important background information and the key outcomes of the case.
This article is intended to summarise potentially complicated legal issues, and is not intended to be a substitute for individual legal advice. If you would like further information, please contact a Baldwins representative.
 Ortmann v the United States of America  NZHC 189; http://www.courtsofnz.govt.nz/cases/ortmann-v-the-united-states-of-america/@@images/fileDecision
 Infringement of copyright can attract civil and criminal liability but criminal liability is limited to certain types of circumstances of infringement
 Ortmann v the United States of America DC North Shore CRI-2012-092-001647, 23 December 2015; Ortmann v the United States of America  NZHC 189; http://www.courtsofnz.govt.nz/cases/ortmann-v-the-united-states-of-america/@@images/fileDecision