The Stanford Law Schools Center for Internet and Society has added a voice to the growing number of lawyers that expect America’s charges against Kim Dotcom and the “Megaupload conspiracy” to collapse in court.

At issue, the article says, is that DCMA requirements under criminal law are different from the tests that apply under civil law. Jennifer Granick writes that most of the discussion about DMCA “safe harbor” provisions since the raid and arrests has looked at the principle from the perspective of civil law.

However, Granick – general counsel of entertainment company Worldstar Management – points out that American authorities are trying to apply criminal jurisdiction to Dotcom, his associates, and his companies.

That, she argues, changes everything, since the protections applying to criminal defendants are different to those fighting off civil lawsuits. In her words: “criminal infringement requires a showing of willfulness. The view of the majority of [US] Federal Courts is that ‘willfulness’ means a desire to violate a known legal duty, not merely the will to make copies”.

In other words: Dotcom’s efforts – whether genuine or merely cosmetic – to prove compliance with “safe harbor” under the DMCA might fail in a civil trial, but this isn’t a civil matter. US authorities decided to escalate the accusations to the criminal courts precisely so they could extradite the accused to America.

If, however, a strong criminal defense is available, extradition becomes that much less likely.

“For criminal liability,” Granick writes, “it doesn’t really matter whether the service qualifies, so long as the Defendants believed it qualified”.

Other issues raised by Granick include whether the “secondary liability” that exists in civil cases can be – or has been – extended to US criminal law (probably not, and under dispute in another case, Puerto 80 Projects v. USA); whether conspiracy to violate civil law is a federal crime (“an obvious ‘no’”), along with questions discussed elsewhere about the completeness of the indictment and the jurisdictional claims the case will involve.

The analysis suggests the case “is going to be an uphill battle for the government”.

Following the release on bail of two of Kim Dotcom’s co-accused last week, Finn Batato and Bram van der Kolk, the fourth man arrested, Mathias Ortman, has had his bail hearing delayed until this week. Dotcom has been denied bail as a flight risk. ®