The Dotcom case

July 19th, 2012 at 4:30 pm by David Farrar

I was going to do a lengthy blog explaining the context of the comments by 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 , 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 ’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 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.

Nathan Torkington has blogged on this also, as has Chris Keall at NBR.

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13 Responses to “The Dotcom case”

  1. Michael Mckee (1,091 comments) says:

    He was being a smart arse and it bit him on the bum!

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  2. Mr_Blobby (131 comments) says:

    It still does not sit well with me that a New Zealand resident can be subject to arbitrary imprisonment and his assets arbitrarily seized. Based on what, a suspicion, threat, accusation.
    What non binding international conventions have been ignored here and who will be next.

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  3. iMP (2,304 comments) says:

    The original quote “We have met….Us” is a quote from Walt Kelly (an American), creator of Pogo. It is the title of one of his books. I think the Judge was making a pun on “us” and the “US.”

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  4. iMP (2,304 comments) says:

    The original quote relates to pollution and messing up the environment (ie we are our own worst enemy). Kelly is an early environmental advocate and political satirist.

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  5. Pauleastbay (5,035 comments) says:

    Jonathan Temm was on the radio this afternoon and said Harvey was misreported big time and he never said that the US was the enemy at all. but the genie was out of the bottle and he could not defend himself and had to step aside

    What Russell writes is entirely correct.

    The MSM media acting unprofessionally or inaccurately again, who would have thought

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  6. F E Smith (3,305 comments) says:

    MSM media acting unprofessionally or inaccurately again

    Both, really, but do you think they really care?  In my experience the ‘media’ is usually so drunk on its own ego that it doesn’t care whether it is reporting factually or not, so long as they are the centre of attention.

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  7. mikenmild (11,193 comments) says:

    “We have met….Us”
    Dreived from an even more famous quote: “We have met the enemy and he is ours”, after the Battle of Lake Erie.

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  8. swan (659 comments) says:

    I cant see how he has done the right thing by standing aside, all because the media just made shit up? Could anyone explain this a little better?

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  9. F E Smith (3,305 comments) says:

    swan,

    a Court must be thought to be impartial as much as it is actually impartial. If there is a hint that the judge is biased against one of the parties involved in a case then whether or not justice is actually done, it is tainted.

    A great example of this was the outrageous pro-Crown attitude of a former Auckland Crown Solicitor elevated to the High Court bench…

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  10. Pauleastbay (5,035 comments) says:

    FES

    Let it go, you got Red Ron

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  11. Nostalgia-NZ (4,986 comments) says:

    I can’t see how his stepping aside advances anything but that ‘the enemy is us’ when it comes to common sense when properly proportioning things such as facts. Submission to the media is not the go.

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  12. davidp (3,550 comments) says:

    FE Smith>a Court must be thought to be impartial as much as it is actually impartial

    If he media can make stuff up, and that made-up stuff can end in the removal of a judge from a case, then is that giving the media a veto over the administration of justice? Surely they’re now in a position to get any judge removed from any case at their whim.

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  13. Nostalgia-NZ (4,986 comments) says:

    davidp

    Exactly. Bigger issue here.

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