Pro-Copyright Judges Never Drop Cases Over Conflicts, So Why Does Megaupload Judge Have To Step Down?

from the doesn't-make-sense dept

This isn’t a huge surprise, but yesterday, we wrote about some comments by Judge David Harvey in New Zealand concerning region coding on DVDs and the New Zealand/US negotiations over the TPP agreement. None of this had anything to do with Megaupload or the Dotcom case, but at one point he referred to a tweet that did a slight satire on the famous saying, and noted that “we have met the enemy and he is [the] US.” The press was already blowing this out of proportion — suggesting, totally incorrectly, that he had “called the US an enemy” when it came to copyright law. That’s not true at all. Beyond the fact that he was paraphrasing a common saying in a clearly hyperbolistic manner, the issue he was talking about was very specific to anti-circumvention issues related DVD region coding, and nothing, whatsoever to do with the direct issue in the case.

That said… as many people are noting, Judge Harvey, recognizing the press furor about all this has stepped down from the case and will allow another judge to pick up the extradition issue down the road. This is unfortunate, as Judge Harvey is noted as one of New Zealand’s key internet law experts, who really understood these issues at a deep level. Still, it’s unclear if this change will have a huge impact on the case. The judge taking over for Harvey, Judge Nevin Dawson, has also been involved in the Megaupload case, and was the judge who released Dotcom on bail, despite pressure from the US to keep him locked up. Furthermore, Harvey and Dawson are district court judges, and it seems likely that, in the end, this will involve New Zealand’s High Court, which is already engaged and has already ruled against the US.

But, here’s the bigger issue: we see stories of judges in big copyright cases all the time who have strong ties to pro-copyright or copyright maximalist organizations… and people shrug and move on. Let’s just say, for example, if Judge Harvey had said that he agreed with New Zealand’s efforts to join the TPP because he thought that New Zealand needed stronger anti-circumvention rules to protect DVDs, would anyone even blink an eye? I doubt it.

Furthermore, travel around the globe, and you find the exact opposite situation in many cases, where the judges did not step down. Most famously, over in Sweden, the judge who heard The Pirate Bay trial had close ties to the copyright lobby, and was a member of a few organizations that worked towards promoting stronger copyright law. It seems like that would be a much more direct and obvious conflict than Judge Harvey’s… yet that Swedish judge stayed on. Similarly, here in the US, Judge Beryl Howell, who bucked the trend in copyright trolling cases, by allowing cases to move forward on questionable theories, was just recently an RIAA lobbyist, and prior to that had helped write the DMCA, while a Congressional staffer. And, yet, she remained on the case.

It seems that there’s a pretty clear double standard at work here. If you’re strongly pro-copyright, no one blinks an eye if you are hearing copyright cases. But, if you make an offhand joking comment that’s marginally critical of US copyright policy in one specific area, totally unrelated to the case at hand… you step down.

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Comments on “Pro-Copyright Judges Never Drop Cases Over Conflicts, So Why Does Megaupload Judge Have To Step Down?”

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88 Comments
That Anonymous Coward (profile) says:

Re: Re:

I think he saw the writing on the wall. They would use these statements out of context, like they did, and try to declare that he was biased.
Rather than hand them the ability to make doubt appear, he stepped up and did the “right” thing.

When your biased in favor of the cartels, its not a conflict.
When your in favor of the law, not the cartels, making the decisions it will be a huge conflict.

This is more evidence of the high court, low court methodology sweeping the globe. There are special rules for cartel members, because the world would come screeching to a halt without the next beiber single.
This is the result of money corrupting the government and bleeding into the judicial system, they are demanding huge penalties from regular people but when a cartel member lies on a legal document… oh well no harm no foul.

Anonymous Coward says:

Re: Re:

I’d still trust the NZ judicial system enough to think that there are no “paid judges” there. All rulings (except the very initial ones when the FBI was still able to put up a smoke screen) have gone in their favour, and there were different judges involved. Harvey may have stepped down becuase he knew also it woudn’t matter all that much.

Chargone (profile) says:

Re: Re: Re:

yeah. you gotta watch out for the cops here sometimes: once they decide you’re the one who did something they’re not Always above manufacturing or mucking with the evidence to back it up… (that said, even when they do that they’re Usually very good about getting the right person in the first place… but it still a problem.) they sometimes seem a bit obsessive about saving face to the point of not doing their jobs properly… but the judges are honest. only issue with them is sometimes stupidly light sentences for major crimes (which has less to do with the judges and more to do with how the system’s set up.)… sometimes the Juries are easily mislead… sometimes they come out and do unexpectedly awesome things. (look up activists damaging a US ‘spy base’ and the court ruling there.)

also: I’m pretty sure that, here at least, quite a bit of noise would have been made over bias in favour of the cartels, if it were reported at all. that whole ‘favour the underdog, favour our own’ thing kicking in again. (there’s an exception for actual criminals who have actually done something morally reprehensible, mind.)

I don’t actually think anyone here who wasn’t Already being an idiot (and i say that because i’ve yet to see someone on the side of the cartels who doesn’t come across as a red-neck analogue or corporate shill) here would have objected to Judge Harvey continuing, whatever the (mostly US interest owned) press had to say about it.

i suspect Judge Harvey may well not have stepped aside had he not been sure his replacement was not in the pockets of the cartels.

it gets better, mind:
there’s a fairly strong, getting stronger, and surprisingly mostly ‘left’ aligned, nationalist sentiment floating around NZ these days… and numbers one and two on the ‘foreigner’ front are, depending on the day and most recent news stories, China and the US (they swap places depending on what’s going on.) that said, most people seem to have a positive opinion of Korea (south Korea, that is), Australia (so long as you’re not talking banks or sports), and Canada… if they even bother thinking about it.

random ramblings… … …

rawr.

Anonymous Coward says:

It seems that there’s a pretty clear double standard at work here. If you’re strongly pro-copyright, no one blinks an eye if you are hearing copyright cases. But, if you make an offhand joking comment that’s marginally critical of US copyright policy in one specific area, totally unrelated to the case at hand… you step down.

It’s very simple. The ones that step down are the honest ones.

Ninja (profile) says:

Re: Re:

Totally agreed. And there are two very important points here like That Anonymous Coward noted above: it is the expected “right” thing to do. This gives him much more credibility for his earlier rulings and strengthens the case for Megaupload. There’s also the fact that the judge who is taking his place also seems to know what he’s dealing with and he’s taking the case in the upper ground. Last but not least important, the High Court has signalized they also understand what’s going on and can see through the US attempt to destroy Dotcom on behest of the MAFIAA.

The best of it all is that there are still honest ppl within the higher power spheres. Refreshing.

Anonymous Coward says:

Re: Re:

Remember when politicians would do that?

They would say they hadn’t done anything wrong but would apologise for the appearance of wrongdoing and step down.
Then the dishonourable lot discovered that the public didn’t give a damn and had incredibly short memory spans.
So as long as you didn’t resign or apologise, it wouldn’t impact on you, because the general public are incredibly stupid.
If you stick to a story, they’ll believe there must be 2 sides to the situation and even when the story gets demolished with actual facts, they won’t change their mind.
Iran-Contra springs to mind.
Iraqi WMD
Afghanistan having anything to do with 9/11
etc etc

That Anonymous Coward (profile) says:

Re: Re: Re:

You left off their use of headline grabbing tactics of any project “for the children”.
They also like to pull out abortion, religion, and a few other hot button items to get the “base” behind them.

People will follow a guy willing to hand 20 billion to a known terrorist, if he promises he is going to shove new anti-abortion tactics into law. And all he has to do is try, and they still support him.

The world is ruled by hot button issues, while real serious problems are ignored.

xenomancer (profile) says:

Re: Re: Re: Re:

The world is ruled by hot button issues, while real serious problems are ignored.

Normally, as an engineer, I’d say “well, then we’ll just have to fix that; I’ll get back to you in a week,” but there’s only so much that can be done without “playing the game.” And we’ve seen how well that’s gone over just about every time it’s been tried. Events like the revolution that founded this country that give me hope that the right conditions can still exist for real changes to occur. Maybe they’ll even last a little longer next time.

Anonymous Coward of Esteemed Trolling (profile) says:

Re: Re: Re:2 the media will have a lot to answer for

As an engineer, you see the actual structural problem then. Unfortunately there are still many who are distracted by the side effects that affect them. ( banks, taxes, healthcare, prisons, laws, freedoms etc…) All side effects of the same root problem.
Let’s hope they all realize that it is the money in politics that is their real issue. Currently there are too many groups protesting this and that, while being emotionally blinded and “lied” to about the root cause, corruption and money in politics.

Chargone (profile) says:

Re: Re: Re:

oddly, here-abouts, this only seems to affect current PMs and their favourites. everyone else has the choice of resigning or getting raked over the coals. (and even being the PM’s favourite only gets you so much protection. and being the PM wouldn’t do it either if we had GGs who actually did their damn jobs…. then again, if that were the case we wouldn’t end up with such slimeballs in the job so often either. also, as the PM, they don’t generally have to do anything that runs afoul of the system. it works in their favour most of the time and when it doesn’t they can assign someone else to take the job and thus the fall. they’ll quite happily lie to the public’s faces though.)

Anonymous Coward says:

Because that judge is honest, which is in contrast to all the corrupt ones that kling to a case so they can rule their own personal beliefs, instead of letting it go.

You see the copytards will never let go, they don’t know the meaning of “impartiality”, they can’t understand that simple concept.

The judge in New Zealand for all the sympathy I have compromised that the minute he voiced his personal opinions on the case which brings doubt about the judicial system and it is not good, this is how an honest court should behave, once doubt is cast upon something with some reasonable certainty than that judge should always excuse itself and give way to others that we trust would fallow procedure and be impartial so it shouldn’t matter who is judging what as long as he doesn’t have or appear to have a horse in it. We trust the system not the man, we trust that the system generates people capable of dealing with the situations in the same manner, this is why he should step down so to preserve that system, to preserve and respect its integrity, so all can trust it.

Which by the way, New Zealand scores high on the trust people put upon it, it is one of the few places where most people absolutely believe the system is fair and just.

Anonymous Coward says:

what does really annoy me about this whole affair is the very very twisted reporting of the matter. Even the BBC has reported just the “enemy” word, totally out of context. This case has been a lesson in sloppy reporting and how a story gets twisted by “journalists” copying from each other for the most part (not maliciously so, also news that were positive for Dotocom)…and now it’s actually influenced the case itself. Sad.

Chargone (profile) says:

Re: Re:

that said, the more of this stupid that keeps happening, the more the twisted version becomes true in the eyes of the NZ public.

while generally fans of regulation to keep both the powerful and the deviant from causing problems for everyone else, Kiwis are also quite big fans of Personal freedom. in a sort of apathetic ‘you leave us alone and we’ll leave you alone’ kind of way, usually.

also not big fans of failures of justice or unfair processes. again, usually with a sort of detached attitude and ‘cheering from the sidelines for the guy who’s fighting the system to get it sorted out’ kind of way…

thing is though, once something gets past that apathy… well, methods vary but stands tend to be taken and stuff changed.

Anonymous Coward says:

The answer = if you’re biased in favor of the rich & powerful then it’s ok. Look at the US Supreme Court, one of the judges who heard the Obamacare ruling had a spouse raking in several hundred thousand dollars a year from groups strongly opposing and lobbying against Obamacare, isn’t that a conflict of interest if your spouse is effectively on the pay check of one party with a case before your court?

Anonymous Coward says:

I have to say I am laughing at this post for a whole bunch of reasons.

First off, I told you so. It’s not surprising that a judge that DURING AN ACTIVE CASE (key here) made comments regarding one of the parties involved would get asked to step down. Forgetting that the comments are even remotely about copyright related issues, calling one of the parties the enemy, even in jest, is just NOT something good for a judge to do.

Yes, I know, it’s a turn of a common phrase. But read directly, it says the US is the enemy, plain and simple. You have to work REALLY hard to read it any other way.

Now, that the comments were about copyright related issues (which is the general area of the Mega case) only shows that the judge is even further out of touch with their judicial duties. A judge is suppose to be impartial, at least during the case. This shows a judge that is not impartial, and some of the choices made already may be as a result of that lack of impartiality on the subject.

The other thing that gets me laughing is the “the judges for the other side don’t step down”. First off, there are VERY few examples of judges making negative comments about file sharers during the legal process, and second… very important here: copyright is the law, they are just saying they support the law.

It would be akin to a judge saying “Speeding is dangerous”. Clearly, he supports the law, he isn’t saying “Speeding is fine” and then dismissing a bunch of speeding tickets.

Mike, accept that the judge got caught out. You would be making a huge stink about it if it was the other way!

Anonymous Coward says:

Re: Re:

yawn…it appears that the DoJ’s preferred reading of copyright is not the law, and even more so in New Zealand. Given the numerous ways in which the prosecution has overstepped the law, i think it’s possible that a Judge trying to defend the rule of law and some very basic legal prinicples (NZ Bill of Rights) might be slighly frustrated. The comments were unwise, but they were political comments on what is effectively a political, not a legal process.

Josh in CharlotteNC (profile) says:

Re: Re:

copyright is the law, they are just saying they support the law.

What an interesting bit of revisionism. The judge’s comments were specifically related to how it is legal to ignore region coding on DVDs in New Zealand, and that TPP threatened that.

So, in fact, the judge’s comments here were actaully supporting the law.

Try again.

Anonymous Coward says:

Re: Re: Re:

Okay:

“”He recognizes that remarks made in the context of a paper he delivered on copyright law at a recent internet conference could reflect on his impartiality and that the appropriate response is for him to step down from the case,” the district court’s chief judge, Jan-Marie Doogue, said in the Herald.”

There you have it.

Anonymous Coward says:

Re: Re: Re:

Further:

“What an interesting bit of revisionism. The judge’s comments were specifically related to how it is legal to ignore region coding on DVDs in New Zealand, and that TPP threatened that.”

Actually, the judge’s comments were part of a much larger paper that was (from what I can read) very much against copyright, copyright reform, and so on.

It’s really not a good idea for a judge sitting a high profile copyright case to be stating any personal opinion in public about copyright.

Moreover, calling the plaintiff “the enemy”, even in jest, is a really, really poor choice for the judge to make. It showed that the judge is not impartial, and therefore not fit to be in charge of this trial anymore.

There is no wonder that all of the rulings by this judge have been for the defendants. Mike doesn’t seem to have a problem with that, and seems unable to connect the dots at all. Willful blindness?

Anonymous Coward says:

Re: Re: Re: Re:

Actually, the judge’s comments were part of a much larger paper that was (from what I can read) very much against copyright, copyright reform, and so on. < />

Not strictly correct, either. You call it reform. This judge, and many like him,see it as a constricting of freedoms and rights they already have and enjoy because of current law. Trying to force another country to follow your draconian rules isn’t reform. It’s malicious.

Josh in CharlotteNC (profile) says:

Re: Re: Re: Re:

It’s really not a good idea for a judge sitting a high profile copyright case to be stating any personal opinion in public about copyright.

Just curious, have you been making similar comments about Supreme Court Justice Scalia lately, or is it only this particular judge, or the issue of copyright?

There is no wonder that all of the rulings by this judge have been for the defendants.

It seems more plausible that after seeing how weak the US arguments were and how over the top their tactics are, the judge started looking into the issues deeper, and his paper and opinions are a result of the case – not that his rulings are the result of pre-conceived opinions. TPP wasn’t a well known issue until after the SOPA protests – and the Mega raid happened the day after those protests – so it is unlikely that he has been working on this paper from before the Mega case started.

Anonymous Coward says:

Re: Re: Re: Re:

Willful blindness indeed. What else did you expect? And the actual double standard here is hilarious: Just think about how ape shit Pirate Mike would be going right now if the judge had commented that Pirate Kim was “the enemy.” Mike would be calling for this judge’s resignation from the bench.

ASD says:

Re: Re:

“The other thing that gets me laughing is the “the judges for the other side don’t step down”. First off, there are VERY few examples of judges making negative comments about file sharers during the legal process, and second… very important here: copyright is the law, they are just saying they support the law.”

What the fuck planet are you on? The judges call the fire sharers THIEVES and hand over massive judgments! You need to try reading the internet once in a while if you think that any number of judges in copyright cases are remotely “clean”

Anonymous Coward says:

Why?

Most likely you have the situation backwards in that the most probable explanation is that for some unknown reason such as excessive US pressure on the NZ court system the judge decided to step down. The comments were then made so that there would be a reason to do so and at the same time shove the US pressure back into Uncle Sam’s face. This sounds like one judge with a hell of a lot of character.

Anonymous Coward says:

It seems that there’s a pretty clear double standard at work here. If you’re strongly pro-copyright, no one blinks an eye if you are hearing copyright cases. But, if you make an offhand joking comment that’s marginally critical of US copyright policy in one specific area, totally unrelated to the case at hand… you step down.

I don’t think that’s the right conclusion here, Pirate Mike. All judges have backgrounds. You wouldn’t say a woman judge couldn’t hear a case about equal rights, nor would you say that a judge who used to work for the copyright industry can’t hear a case that involves copyright. It doesn’t work that way.

Judges don’t recuse themselves for having backgrounds. But they should recuse themselves if they’ve said something in public that reflects badly on a party that’s before their court.

This judge said something rather terrible about a party to a case he is involved in. That’s a big no-no, and he should have known better. This judge could have a background of being anti-copyright. That’s fine. But what he can’t do is make public statements about parties in cases that he’s hearing.

There is no double-standard. Rather than jumping to your silly conclusions about how all the pro-copyright judges can hear cases while the anti-copyright judges cannot, why don’t you do some research on when it is that a judge is supposed to recuse himself. As with most things, if you actually do your homework and if you actually learn the theory, you’ll find that it actually makes sense and it’s not some huge anti-copyright conspiracy.

Anonymous Coward says:

Re: Re:

Quit being naive, there is a double standard.

http://www.wired.com/threatlevel/2009/04/pirateconflict/

“It wasn?t appropriate for him to take on this case,” says Eric Bylander, senior lecturer in procedure law at Gothenburg University. “There are several circumstances which individually don?t constitute partiality, but that put together can form a quite different picture. It?s also a matter of what signal this sends to the citizens. Anyone who, on reasonable grounds, can be appear biased in a case should not judge that case.”

Anonymous Coward says:

Re: Re: Re:

That doesn’t demonstrate a double standard since that case and the Megaupload case have nothing to do with each other. They’re different cases in different countries with different people involved. Trying to connect the two is some serious tinfoil-hat logic.

Each instance of whether a judge should recuse himself or herself is unique, and it should be looked at individually. Trying to draw some “they’re out to get us!” nonsense from these disparate events just doesn’t make sense. Had this judge in New Zealand not opened his mouth and publicly said negative things about a party before his court, he wouldn’t be having this problem. Judges know (or at least they should know) that they just can’t go around publicly calling parties before their court “the enemy.” This is just basic stuff. The judge screwed up. Get over it.

Leigh Beadon (profile) says:

Re: Re: Re: Re:

Had this judge in New Zealand not opened his mouth and publicly said negative things about a party before his court, he wouldn’t be having this problem. Judges know (or at least they should know) that they just can’t go around publicly calling parties before their court “the enemy.”

Er, it sounds like you have absolutely no problem with him thinking of and treating a party before his court as “the enemy” as long as he keeps his mouth shut…

Anonymous Coward says:

Re: Re:

Here’s the statute (18 U.S.C. 455) for recusal of federal judges if you’re interested: http://www.law.cornell.edu/uscode/text/28/455

Like most things though, you can’t just read the statute. You have to read some case law interpreting the statute and applying it in different fact patterns and contexts to really get a feel for it.

ltlw0lf (profile) says:

Re: Re: Re:

Here’s the statute (18 U.S.C. 455) for recusal of federal judges if you’re interested

We are talking about a New Zealand judge, not a US one, so 18 U.S.C. 455 has absolutely no effect in this case.

Like most things though, you can’t just read the statute.

As opposed to you, who hasn’t even read the statute.

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

So Judge Beryl Howell, former lobbyist for the RIAA, was not violating this law when she failed to recuse herself. And no double-standard exists?

Anonymous Coward says:

Re: Re: Re: Re:

Being a lobbyist for the RIAA is not the same thing as serving as a lawyer in the matter in controversy. Judge Howell did not recuse herself, and she was right not to do so. She never was a lawyer in the matter that was before her court, so that’s not even the part of Section 455 that you want to be looking at. You want Paragraph A, I think.

Regardless, if someone tried to get her thrown off the case for being impartial, I don’t believe they would have had a chance of succeeding. Had Judge Howell done something dumb, and made a public remark about how someone before her court was “the enemy,” then obviously she would then have to recuse herself. But she never did anything that dumb, and her past work in one industry doesn’t mean that whenever a case comes before her court that involves that industry she must step down. It doesn’t work that way.

Anonymous Coward says:

Re: Re: Re:2 Re:

Being a lobbyist for the RIAA is not the same thing as serving as a lawyer

STOP.

Being a lobbyist for the RIAA is not the same thing as serving as a judge.

You can twist the rules any way you want?then common sense rebels.

Quit trying to justify Beryl Howell’s position. You’d have a better argument if you just gloated over the power the RIAA/MPAA lobby wields.

Naked power: You’ve got it. So flaunt it! And spare us the weasle-worded excuses.

That Anonymous Coward (profile) says:

Re: Re: Re:2 Re:

Howell ruled that people have no standing to stop the records between them and a company providing them service.
She arrived at this great leap by saying the Does were not a party to the case, which is an interesting leap.
Lawsuit filed to unmask Does, when anyone attempts to get the court to intervene and make sure there is actual proof the court rules the people who will end up targets get no say in the matter.
The court gladly kept extending the window that requires the plaintiff to “file or fuck off”, because getting the names of 20,000 people wasn’t as fast as the trolls wanted.
Named cases before Howell in this matter, willing to bet under 10 if not 0.

So you have a Judge who honestly thought that 20,000 Does would fit in her courtroom.
Who did not question the merits of a case, given the history of this technology being flawed.
You have a Judge unwilling to even listen to issues of the court not having jurisdiction over the Does.
A Judge who stuck her fingers in her ears and ignored motions filed with the court raising all of these issues and more, until such time as she was getting media attention for being “THAT” Judge who just hands over the keys to the shakedown.

She is not and can not be impartial, and gave every appearance of not being impartial. This is why a NZ Judge stepped down from a case, to remove ANY CHANCE of people thinking the Judge was not dealing fairly.

SCOTUS Judges have stepped away from cases where they were less involved that Howell is in the issues, but you maintain she is impartial. The MegaUpload prosecution is being run by a former SBA lawyer, who created law in his own mind – Criminal Charges for civil “crimes”. We can’t prosecute him, he is withholding evidence in violation of the Brady Rule, and he seems to only answer to the cartels. You do understand even the look of impropriety is meant to be avoided otherwise the public will lose what little trust they have left in the legal system. The fact they keep working on these cases when they have a vested interest in doing so (future employment, retirement benefits, etc.) really sets off alarm bells for most normal people.

ltlw0lf (profile) says:

Re: Re:

Judges don’t recuse themselves for having backgrounds. But they should recuse themselves if they’ve said something in public that reflects badly on a party that’s before their court.

Douches like you may only act when they are caught. Honest men act when they make the mistake, before they are caught.

The rule of law is to recuse yourself when there is a conflict of interest, not when you get caught. And there is a double-standard because a lot of judges who came from MAFIAA posts have failed to recuse themselves when there is an obvious conflict of interests and they were caught, and they didn’t care (and apparently nobody else cared either, at least not yet.)

Pickle Monger (profile) says:

Conflict of interest? What conflict of interest?

This is ridiculous. There’s no conflict of interest here. The judge has expressed an opinion. It is understood that judges have personal opinions, in fact they happen to share them during trials and decisions all the time. The job consists of making impartially decisions regarding the legal merits of cases. If, as a matter of fact, judges opinions precluded them from executing their duty, people like Casey Anthony, OJ Simpson, Michael Jackson, Robert Blake, and many others would be behind bars.

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