Release For Victim Notification

United States v. Kim Dotcom, et al, Crim. No. 1:12CR3 (E.D. Va. O’Grady, J.)

On November 22, 2013, United States District Judge Liam O’Grady of the Eastern District of Virginia ordered that the United States of America provide notice to potential victims in the above-captioned criminal case as soon as practicable after December 12, 2013.  A copy of this release has been provided to Judge O’Grady’s chambers prior to issuance and the clerk of the Court has been notified that the judge’s November 22, 2013 Order is now unsealed.  

In early 2012, indictments were filed in the United States District Court for the Eastern District of Virginia in Alexandria, Virginia, charging Kim Dotcom, Megaupload Limited, and other defendants with being members of an international organized criminal enterprise (“the Mega Conspiracy”) responsible for, among other things, criminal infringement of numerous types of copyrighted works for private financial gain, through Megaupload.com and other related sites.  This conduct was alleged to have generated more than $175 million in criminal proceeds and cause more than half a billion dollars in harm to copyright owners.

Four individuals in New Zealand and one in the Netherlands are currently resisting extradition to the United States for trial on these charges.  Though the extradition hearing for the defendants in New Zealand was originally scheduled for August 2012, the hearing date was recently delayed to July 7, 2014.  The other individuals charged remain fugitives from justice.

If a person owns (or is assigned) the rights to a copyrighted work which was, in whole or in part, reproduced or distributed without permission, on Megaupload.com or its related sites, that person may have been victimized by the alleged activities of the named defendants.  This court-ordered notice is to help identify any potential victims of the criminal conduct alleged in the Superseding Indictment, to provide these victims with information about the government’s investigation, to help victims confer with the prosecution team, and generally to protect victim rights.

The following information is available in this notice:

• Defendants
• Charges
• Information about Evidence Submitted to the Defendants in Extradition Process and the MD5 Hash Values
• Prosecution Team and Contact Information
• Victim Rights
• Documents (including a copy of the Court’s order, the Superseding Indictment, a summary of some of the prosecution’s evidence provided to the defendants in the extradition process, information to help determine whether or not a person is a potential victim, and a form for potential victims to submit to the Victim/Witness Coordinator).

Defendants

The Superseding Indictment alleges a criminal enterprise led by Kim Dotcom, also known as Kim Schmitz, also known as Kim Tim Jim Vestor, 39, a resident of both Hong Kong and New Zealand.  Dotcom founded Megaupload Limited and is the director and sole shareholder of Vestor Limited, which was used to hold his ownership interests in the Mega-affiliated sites.  In addition, the following alleged members of the Mega Conspiracy were charged in the Superseding Indictment:

• Finn Batato, 40, a citizen and resident of Germany, who was the chief marketing officer;

• Julius Bencko, 36, a citizen and resident of Slovakia, who was the graphic designer;

• Sven Echternach, 41, a citizen and resident of Germany, who was the head of business development;

• Mathias Ortmann, 42, a citizen of Germany and resident of both Germany and Hong Kong, who was the chief technical officer, co-founder, and director;

• Andrus Nomm, 34, a citizen of Estonia and resident of both Turkey and Estonia, who was a software programmer and head of the development software division;

• Bram van der Kolk, 31, a Dutch citizen and resident of both the Netherlands and New Zealand, who oversaw programming and the underlying network structure for the Mega Conspiracy websites.

Charges
The Superseding Indictment charges the defendants as follows:

Information about Evidence Submitted to the Defendants in Extradition Process and the MD5 Hash Values

Normally in an indicted federal criminal case, defendants are not entitled to access relevant evidence gathered by the prosecution until they appear for arraignment before the United States District Court.  At that time, the trial judge usually orders, pursuant to the Federal Rules of Criminal Procedure, appropriate discovery between the parties.

Because of the necessity of extraditing the individuals in this matter, the United States of America has been required to provide a summary of its evidence sufficient for foreign reviewing courts to find the defendants eligible for surrender to the United States.  This summary, which is referred to in New Zealand as the Record of the Case, has been provided to the defendants on a rolling basis and additional submissions in 2014 are expected.  At the latest, the Record of the Case will become public at the time of the extradition hearing.

In order to honor the New Zealand District Court’s continued sealing of the Record of the Case in the extradition process, the government sought and received permission from Judge O’Grady to create and disclose a new summary of the evidence that has been provided to the defendants in order to best serve the interests of the victims of the Mega Conspiracy.  The government has attached this summary to this notice.

As described in the summary, the prosecution and the defendants have access to databases which contain a massive amount of information regarding uploads made to Megaupload.com and related sites.  One of the items in these databases is a 32-character unique identifier for each digital file uploaded (or attempted to be uploaded) to the defendants’ sites.  Such “MD5 Hash Values” can allow potential victims to identify whether their works were reproduced or distributed by the defendants’ sites, since they can compare the MD5 Hash Values for copies of their copyrighted works with the values from the databases. 

Because the text file of these MD5 Hash Values alone proved to be more than 8 gigabytes in size, it is impractical for the government to post the complete file for download and use by potential victims.  The government is working diligently on an alternative means to provide appropriate access to this list, and will update this notice as that process progresses.          

Prosecution Team and Contact Information

The case is being prosecuted by the U.S. Attorney’s Office for the Eastern District of Virginia and the Computer Crime & Intellectual Property Section (“CCIPS”) of the U.S. Department of Justice’s Criminal Division.  The Criminal Division’s Office of International Affairs, Organized Crime and Gang Section, and Asset Forfeiture and Money Laundering Section are also assisting with this case.

The investigation was initiated and led by the Federal Bureau of Investigation.  Substantial and critical assistance was provided by the U.S. Immigration and Customs Enforcement’s Homeland Security Investigations; the New Zealand Police, the Organised and Financial Crime Agency of New Zealand (“OFCANZ”), the Crown Law Office of New Zealand, and the Office of the Solicitor General for New Zealand; Hong Kong Customs and the Hong Kong Department of Justice; the Netherlands Police Agency and the Public Prosecutor’s Office for Serious Fraud and Environmental Crime in Rotterdam; London’s Metropolitan Police Service; Germany’s Bundeskriminalamt and the German Public Prosecutors; and the Royal Canadian Mounted Police – Greater Toronto Area Federal Enforcement Section, the Integrated Technological Crime Unit, and the Canadian Department of Justice’s International Assistance Group.  Authorities in the Australia and the Philippines also provided assistance.

The U.S. Department of Justice and the U.S. Attorney’s Office for the Eastern District of Virginia are committed to protecting the rights of crime victims and providing them with information necessary to exercise those rights.  We invite those potential crime victims to contact the prosecution through our Victim/Witness Unit to ensure they are notified of important stages of the case.  In addition, our Victim/Witness Unit can help make references to agencies that provide other services to witnesses.  We suggest that any potential victim fill out the Potential Victim Form and submit it to our Victim/Witness Unit.  Those who successfully register as potential victims will have access to the Victim Notification System (“VNS”).

The VNS is designed to provide information regarding the case as it proceeds through the criminal justice system.  Registered victims may obtain current information about this matter on the Internet at www.Notify.usdoj.gov or from the VNS Call Center at 1-866-DOJ-4YOU (1-866-365-4968) (TDD/TTY:1-866-228-4619; International 1-502-213-2767).  In addition, they may use the Call Center or Internet to update their contact information and/or change their decision about participation in the notification program.  In order to access VNS, a crime victim must receive a Victim Identification Number (VIN) and Personal Identification Number (PIN) from our Victim/Witness Unit.  Again, to register, please complete the Potential Victim Form and submit it to the email or mailing address below.

To submit a Potential Victim Form or obtain other assistance, please contact:

Victim/Witness Coordinator
United States Attorney’s Office
Justin W. Williams United States Attorney’s Building
2100 Jamieson Ave, Alexandria, Virginia 22314
 United States of America
(703) 299-3700
USAVAE.Megavictims@usdoj.gov

Victim Rights

Federal crime victims have the following rights, as set forth in the Justice for All Act of 2004, 18 U.S.C. § 3771:
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused.
(3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.
(4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.
(5) The reasonable right to confer with the attorney for the Government in the case.
(6) The right to full and timely restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for the victim’s dignity and privacy.

Documents

INSTRUCTIONS: Click on any of the documents below to access it. Internet access is required.

• Order of United States District Judge Liam O'Grady
• Superseding Indictment
• Introduction and Summary of Evidence Against Defendants
• Instructions For Determining Whether Specific Works Were Made Available On Megaupload.com Or Related Sites (UNDER DEVELOPMENT)
• Potential Victim Form