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!]