Judge Harvey, Kim Dotcom, and The Press

July 18, 2012 – 11:25 am

Judge David Harvey has stepped down from the Kim DotCom case. At NetHui last week, he led a discussion of copyright where opinions from the floor were variously thoughtful, passionate, and novel. He was careful to watch his words, at one point saying “I’d better not say anything about that” when other trials he has came up. He didn’t mention Dotcom, and the conversation never turned on the Dotcom case.

Harvey’s throwaway “we have met the enemy, and he is U.S.”, was in reference to the Trans-Pacific Partnership trade agreement: the American negotiators have repeatedly pushed for longer copyright terms, no parallel imports, removal of format-shifting exemptions, and much more. If you like parallel imports, turning your CDs into MP3s without having to buy the music again, and the growth of public domain culture, then the enemy very clearly is the U.S.

So why the hell is he stepping down?

Because newspapers took his comments around the potential for more punitive copyright measures in the trade deal, and connected them to the Dotcom case. Once the scandalous connection was made and the implication that the Judge in the Dotcom case was biased, he was screwed. It is newspaper gold: scandal and Dotcom celebrity go hand in hand. So the lie sped around the world and the truth never had a chance to get its pants on.

Chris Keall from NBR reported it as it happened but did so while preserving the TPP context of the comment. Hamish Fletcher from NZ Herald is the first I can find who pumped up the Dotcom element and demoted TPP: Dotcom is mentioned in the headline and first three paragraphs, and it’s not until the fourth that TPP is named. I name Fletcher because his byline is at the top, but it’s unclear he’s to blame for the lack of context: editors can smell blood and may have removed the context

The journalist or editor associated Harvey’s comment to the Dotcom case, when Harvey himself did not intend that association. The expert consulted for advice on whether it was appropriate basically said, “I can’t comment because I don’t know what was said, but judges should be able to engage in debate at academic conferences”. So the article’s flow was “SCANDAL! POSSIBLE SCANDAL! Some fact. (probably not scandal)”.

Do we want our judiciary engaging in discussions? Do we want politicians coming down from the Beehive to actually talk to us about what they think, and learn from us in an honest exchange of views? Or do we want the bland talking points bullshit that we get when PR handlers and self-censorship rule, because that’s what we’ll get if we keep shooting people who try to honestly engage.

It’s shit like this, old media …

[update: This alarmism isn’t uncommon, and it happens on both sides of the fence. Would we “Internet folks” be as upset if he had made copyright maximalist statements at a music industry conference and then had to be recused? I suspect not–we’d probably be in the same boat that the USA are in, arguing that we feel the judge is biased.

So are we upset at Harvey’s recusal because we thought he was “on our side”? He’s a judge, he’s not supposed to have sides; his replacement will be just as impartial and just as constrained by law. Are we upset because it looks like his character is besmirched? He recused, that’s what judges do when there’s a perception of bias. He’ll still be an informed, eloquent, and respected voice on the public stage (although, I suspect, a shade more cautious).

The issue of ‘sides’ is a red herring. The real tragedy is that the new judge won’t be someone who understands technology (Harvey learned to programme on a Commodore 64) and so when he interprets the facts and the law, we run the risk of having a less precise and sustainable interpretation being made. That’s what I’m afraid of: that long-term possibilities for technology will be unwittingly constrained as collateral damage, in much the same way that innocent MegaUpload users were collateral damage when the FBI seized MegaUpload’s servers. Good luck putting THAT concern into a scary headline, though!]

  1. 4 Responses to “Judge Harvey, Kim Dotcom, and The Press”

  2. Ha, I remembered my login… anyway, I know both the journalists you mention. One in particular did more work on the story than privacy allows me to pass on, but in this case, you can be reasonably certain that the whole thing really was as reported, black and white, straight up and down.

    We mustn’t be unfair to the rest of the judiciary though. Having read justice Helen Winkelmann’s rulings and those of other judges, I have to say that there are many fine legal minds in this country available – thank goodness for that.

    I’m also sorry to see that judge Harvey will miss the case of a lifetime, one that I imagine he was very much looking forward to.

    There is a fine irony in the whole thing happening at a public Internet forum, from where Harvey’s words were copied and spread like wildfire. It’s 2012, and some things are very different now.

    Luckily, not judge Harvey’s integrity though. He did the right thing.

    By juha on Jul 18, 2012

  3. The balance that you’ve put into the article notwithstanding, it’s the sensationalism that has resulted in Judge Harvey recusing himself which has stuck in my craw.
    We have come to expect this in what passes for journalism these days and, as Clive James says (in relation to the reporting of his imminent demise):

    “The most flagrant leisure class in recent history consists, dare I say it, of a certain breed of journalists. There are hard-working journalists, but they are not writing pieces like my death-bed interview.
    Journalists who write junk like that aren’t really working at all […] they take dull stuff out of one tray and brighten it up until it is ready to go into another tray, on its way to publication. […] To be the kind of newspaper writer who doctors fiction until it sounds like fact is to work a confidence trick. [..] he shifted the context by leaving out when and in what circumstances I said it. He thus turned one kind of fact into another kind of fact, which means he turned it into a fiction.” – Excerpt from a “The Telegraph” article found here

    As more of us turn to the digital realm for our news, my concern grows for the generational gap where the reader trusts, rather than challenges – accepts, rather than researches for supporting (or disputing) views.

    By NZRob on Jul 18, 2012

  4. Judge Harvey was expressing a conservative view that watching a non regional-DVD here, which would become a criminal action if US lobby wishes were adopted, is bloody stupid. His comment had absolutely no connection with Megaupload nor the 4 he was holding under provisional arrest on behalf of the US.

    There was no legal, ethical, moral nor logical reason for him to relate the two and there was certainly no reason for Judge Doogue to confer with or support the reasoning given to the press to withdraw from the case.

    My view is that he was committed to the view that civil action against Megaupload is the only remedy available to complainants such as the motion picture and recording industry associations in America, and their lobby attempts to criminalize alleged copyright by bandying around the accusation “theft”. “Theft is more strongly hyperbolic, emphasizing or exaggerating the perceived harm of infringement to copyright holders who choose to utilize their copyrights for profit; it connotes a kind of loss which infringement may not actually effect, and the U.S. Supreme Court has even ruled that infringement does not “easily” equate with theft” [I think ex-Wikipedia.org].

    Point being, I believe he wished to pull the plug on the “extradition offences” when 21 days later he was not being given further detail to support their “criminal liability”.

    Don’t doubt the old-boys and girls’ network existence. Type: ‘Alan Galbraith QC squeaky clean’ (without quotes) on Google’s search engine and press enter… : “If, for example, you had advised me that a Judge of the Supreme Court had accepted a bribe you would not expect confidentiality to attach to such advice” in the first result!. He is now appointed as Amicus Curie to vet Dotcom’s legal expenses

    By dennis on Sep 12, 2012

  5. Dear editor, I left the ‘a’ out of amicus curiae in my post previous, and I didn’t intend to start each word with capitals

    By dennis on Sep 12, 2012

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