I was going to do a lengthy blog explaining the context of the comments by Judge Harvey which led to him recusing himself from the Dotcom extradition hearing – but Russell Brown has done it for me. The key part:
Tweeting the proceedings is actively encouraged at NetHui, and I relayed Judge Harvey’s lucid observation that:
The problem is not technology, the problem is behaviour. We have met the enemy and he is us. #nethui
At least twice, Judge Harvey smiled and firmly declined to comment when Kim Dotcom’s extradition case, which he was hearing, came up. I complimented him afterwards on the job he’d done. …
It wasn’t quite the end of the day for me. I’d agreed to stand in for Nat Torkington chairing a 6.30pm session announcing the launch of Fair Deal, a public awareness campaign about the potential threat to New Zealand consumer rights posed by the Trans Pacific Partnership agreement negotiations currently being undertaken by New Zealand, the US and several other countries.
Deep unease with the US stance on intellectual property chapter of the agreement is the default view in New Zealand. It threatens to drag us back into issues such as rights to temporary copies (ie: the right to use the actual internet), which have been settled for years in our soevereign copyright law.
My panel – Internet NZ policy lead Susan Chalmers, Neil Jarvis of the Royal Foundation of the Blind, Catalyst IT director Don Christie and Trade Me operations manager Michael O’Connell – discussed their objections. Don noted that the New Zealand officials negotiating on our behalf have thus far taken a pretty solid line.
David Farrar commented from the floor on government attitudes (also fairly sound but the temptation will always be there to compromise on edge issues just to get an agreement signed). And Judge Harvey was there too. He spoke about the US position on something else that has long been settled in our law – the right to own and operate a device a region-free DVD player. I’ll assume Hamish Fletcher’s transcript in his Herald story is roughly accurate:
Under TPP and the American Digital Millennium copyright provisions you will not be able to do that, that will be prohibited… if you do you will be a criminal – that’s what will happen. Even before the 2008 amendments it wasn’t criminalised. There are all sorts of ways this whole thing is being ramped up and if I could use Russell [Brown’s] tweet from earlier on: we have met the enemy and he is [the] U.S.
Fletcher’s story didn’t appear until the following Monday, five days later, – but when it did, it appeared in the lead position on the Herald’s home page, under the headline US ‘the enemy’ says Dotcom judge.
Inevitably, the story was picked up from there by internet news services as Megaupload Judge Calls U.S. “The Enemy”. In making a play on his own words, Judge Harvey had created a perception of bias that has eventually led to him opting to stand aside from the Kim Dotcom case. He has done the right thing. But it bears reiterating that he was not discussing the Kim Dotcom case at the time.
So the comment was a play on his own quote from earlier in the day, and as Russell says was not at all discussing the Dotcom case.
I think it is a pity, for all sides, at the outcome. As Russell outlined Judge Harvey is an expert on both copyright law (he chaired the copyright tribunal) and Internet law. I’m not suggesting the outcome of the extradition hearing will be different with a different Judge, but that public acceptance of the decision would have been very high with Judge Harvey – especially if it was that the requirements for extradition had been met.