EU Proposes To Provide Open Access To The Results Of Research It Funds
AT&T May Try To Charge FaceTime Users, Raising Net Neutrality Questions

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

Legal Issues

from the doesn't-make-sense dept

Wed, Jul 18th 2012 1:21am — Mike Masnick
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.
Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: bias, copyright, david harvey, extradition, kim dotcom, new zealand, region codes
Companies: megaupload

88 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 18 Jul 2012 @ 1:32am

    you dont think he was 'encouraged' at all, do you?

    [ link to this | view in chronology ]

  • identicon
    Alister Cyril Blanc, 18 Jul 2012 @ 1:50am

    Private Law Societies

    Need a couple of these! ;-)

    http://www.la.org.au/opinion/100510/idea-private-law-society

    [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jul 2012 @ 2:18am

    Shoulda kept his mouth shut, now a paid for judge will be sidled in, and we'll get a ruling that will be pointed to as precedent

    [ link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Jul 2012 @ 2:27am

      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.

      [ link to this | view in chronology ]

      • icon
        Chargone (profile), 18 Jul 2012 @ 5:48am

        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.

        [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jul 2012 @ 2:21am

    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.

    [ link to this | view in chronology ]

    • icon
      Ninja (profile), 18 Jul 2012 @ 4:23am

      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.

      [ link to this | view in chronology ]

      • icon
        Chargone (profile), 18 Jul 2012 @ 5:51am

        Re: Re:

        well, the Judiciary, at any rate.

        the legislature and executive are pretty much lost causes. (if we somehow fluked out utterly and got a Strong governor/monarch willing to take a personal interest and got one of the more honest and idealist currently minor parties end up running things, the executive MIGHT be salvageable. maybe.)

        [ link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Jul 2012 @ 7:08am

      Re:

      +1. Good comment. :)

      [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jul 2012 @ 2:40am

    "So Why Does Megaupload Judge Have To Step Down?"

    He doesn't have to, it's just what honourable people do if there is even the slightest hint of a conflict of interest, or bias or whatever.

    [ link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Jul 2012 @ 2:47am

      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

      [ link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 18 Jul 2012 @ 3:24am

        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.

        [ link to this | view in chronology ]

        • icon
          xenomancer (profile), 18 Jul 2012 @ 3:42am

          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.

          [ link to this | view in chronology ]

          • icon
            Anonymous Coward of Esteemed Trolling (profile), 18 Jul 2012 @ 4:21am

            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.

            [ link to this | view in chronology ]

            • icon
              Greevar (profile), 18 Jul 2012 @ 5:58am

              Re: the media will have a lot to answer for

              Money = power and power corrupts. Therefore money corrupts. We place limitations on power in our government, yet we refuse to put limits on monetary power. Go figure.

              [ link to this | view in chronology ]

      • icon
        Chargone (profile), 18 Jul 2012 @ 5:55am

        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.)

        [ link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Jul 2012 @ 4:19am

      Re:

      Then why don't the pro monopoly judges step down?

      [ link to this | view in chronology ]

    • identicon
      quawonk, 18 Jul 2012 @ 10:05am

      Re:

      By stepping down, he's just fed Kim Dotcom to the MAFIAA wolves. Doesn't seem very honorable to me.

      [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jul 2012 @ 2:58am

    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.

    [ link to this | view in chronology ]

  • identicon
    relghuar, 18 Jul 2012 @ 4:14am

    double standard?

    Seems to me like there's a pretty clear single standard in all this ;-) Either you shut up and bow to the "higher interest", or YOU are the enemy...

    [ link to this | view in chronology ]

  • icon
    ebilrawkscientist (profile), 18 Jul 2012 @ 4:19am

    Buk Buk

    So either you're a coward, or you take a dive. Because Stateian big content will steam roll you under anyways, if they don't get their greedy corporate way. Remember corporations are psychopaths. Even the powerful have families that need shielding from such ilk, it smacks of cronyism almost.

    [ link to this | view in chronology ]

    • icon
      Anonymous Coward of Esteemed Trolling (profile), 18 Jul 2012 @ 4:25am

      Re: Buk Buk

      hate that word "cronyism "... prefer "corrupt".

      "corporations are psychopaths"... now that is a definition worthy of dictionary status.

      [ link to this | view in chronology ]

      • icon
        Chargone (profile), 18 Jul 2012 @ 5:58am

        Re: Re: Buk Buk

        indeed.

        cronyism is an issue here... but that's in the executive, not the judiciary.

        cronyism is appointing your buddies to positions of high office regardless of their abilities or alignments, over both those more skilled and those more popular. (its neither democratic nor meritocratic.)

        [ link to this | view in chronology ]

  • identicon
    abc gum, 18 Jul 2012 @ 5:20am

    Copyright is the bludgeon being used to control the flow of information.

    [ link to this | view in chronology ]

  • identicon
    Simple, 18 Jul 2012 @ 5:50am

    Simple explanation - crooked judges

    The only explanation I can see is the pro-IP judges who rubberstamp everything from the various MAFIAA's are simply crooked. I used to have respect for judges, but lately it seems more and more of them are on the take. Suckers.

    [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jul 2012 @ 5:58am

    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.

    [ link to this | view in chronology ]

    • icon
      Chargone (profile), 18 Jul 2012 @ 6:04am

      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.

      [ link to this | view in chronology ]

  • icon
    gorehound (profile), 18 Jul 2012 @ 6:03am

    Do yourself a favor and make sure you are totally Censoring Big Content from any way into your wallet.Buy & Support INDIE & DIY.Stop letting the Bigwigs into your money.
    Try going out and reading a book too !
    And stop going to the Theater !!!
    Starve the Dinosaurs and maybe they will go extinct.

    [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jul 2012 @ 6:10am

    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?

    [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jul 2012 @ 6:27am

    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!

    [ link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Jul 2012 @ 6:31am

      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.

      [ link to this | view in chronology ]

    • icon
      Josh in CharlotteNC (profile), 18 Jul 2012 @ 7:00am

      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.

      [ link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Jul 2012 @ 7:03am

        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.

        [ link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Jul 2012 @ 10:17am

        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?

        [ link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Jul 2012 @ 10:34am

          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.

          [ link to this | view in chronology ]

        • icon
          Josh in CharlotteNC (profile), 18 Jul 2012 @ 10:48am

          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.

          [ link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Jul 2012 @ 5:06pm

          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.

          [ link to this | view in chronology ]

        • icon
          JMT (profile), 18 Jul 2012 @ 10:01pm

          Re: Re: Re:

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

          Of course there's no wonder, because it would've been a travesty of justice for any other decision to have been made. These were not difficult or controversial decisions.

          [ link to this | view in chronology ]

    • identicon
      ASD, 18 Jul 2012 @ 8:55am

      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"

      [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jul 2012 @ 6:40am

    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.

    [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jul 2012 @ 6:44am

    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.

    [ link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Jul 2012 @ 7:03am

      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."

      [ link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Jul 2012 @ 7:12am

        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.

        [ link to this | view in chronology ]

        • icon
          Leigh Beadon (profile), 18 Jul 2012 @ 7:38am

          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...

          [ link to this | view in chronology ]

          • identicon
            Anonymous Coward, 18 Jul 2012 @ 7:40am

            Re: Re: Re: Re:

            No, I'd have a problem with that too since judges are supposed to not only actually be impartial, but they're supposed to appear impartial as well. This judge, by opening his mouth, doesn't appeal to be impartial. He recognized that himself, hence he stepped down.

            [ link to this | view in chronology ]

        • icon
          Leigh Beadon (profile), 18 Jul 2012 @ 7:40am

          Re: Re: Re:

          (before you flip out, i point this out only because i thought it was an interesting choice of wording on your part -- not to say anything about the broader debate here)

          [ link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Jul 2012 @ 7:06am

      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.

      [ link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Jul 2012 @ 7:10am

        Re: Re:

        You're not seeing the point, no one batted an eye when a Swedish judge who had an obvious conflict of interest was trying the the four guys involved in the Pirate Bay case.

        So, this double standard does exist.

        [ link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Jul 2012 @ 7:12am

          Re: Re: Re:

          And that Swedish judge has nothing to do with this New Zealand judge. There is no connection between the two whatsoever.

          [ link to this | view in chronology ]

          • identicon
            Anonymous Coward, 18 Jul 2012 @ 7:21am

            Re: Re: Re: Re:

            And that Swedish judge has nothing to do with this New Zealand judge. There is no connection between the two whatsoever.

            So.. it's not a double standard, it's just two standards... Right.

            [ link to this | view in chronology ]

          • identicon
            Anonymous Coward, 18 Jul 2012 @ 10:37am

            Re: Re: Re: Re:

            Why do the two need to be connected for there to be a comparison? There are huge similarities, and that is good enough. It's like saying that case law has no bearing because the two are completely separate cases, and we know that is fallacious.

            [ link to this | view in chronology ]

      • icon
        ltlw0lf (profile), 18 Jul 2012 @ 7:57am

        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?

        [ link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Jul 2012 @ 8:24am

          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.

          [ link to this | view in chronology ]

          • identicon
            ASD, 18 Jul 2012 @ 9:00am

            Re: Re: Re: Re:

            You're speaking without any form of logic whatsoever.

            "It's not a conflict of interest when they're biased FOR maximalist copyright regimes"

            That's what you're saying. And it is exactly that devoid of logic. You're insane.

            [ link to this | view in chronology ]

          • icon
            E. Zachary Knight (profile), 18 Jul 2012 @ 9:07am

            Re: Re: Re: Re:

            So it is ok to sit as a judge in which your former employer is the plaintiff as long as your position of employ was not that of a lawyer. Got it. Thanks. everything is clear as day now.

            [ link to this | view in chronology ]

            • identicon
              Anonymous Coward, 18 Jul 2012 @ 9:20am

              Re: Re: Re: Re: Re:

              The plaintiff in the case before Judge Howell was not the RIAA.

              [ link to this | view in chronology ]

          • identicon
            Anonymous Coward, 18 Jul 2012 @ 10:14am

            Re: Re: Re: Re:

            Breathtaking.

            [ link to this | view in chronology ]

          • identicon
            Anonymous Coward, 18 Jul 2012 @ 10:45am

            Re: Re: Re: 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.

            [ link to this | view in chronology ]

          • icon
            That Anonymous Coward (profile), 18 Jul 2012 @ 6:07pm

            Re: Re: Re: 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.

            [ link to this | view in chronology ]

    • icon
      ltlw0lf (profile), 18 Jul 2012 @ 7:49am

      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.)

      [ link to this | view in chronology ]

  • icon
    Pickle Monger (profile), 18 Jul 2012 @ 8:15am

    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.

    [ link to this | view in chronology ]

  • icon
    DanZee (profile), 18 Jul 2012 @ 8:21am

    Fix is in!

    The fix is in. Kim Dotcom should start packing his bags.

    [ link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 18 Jul 2012 @ 6:09pm

      Re: Fix is in!

      The US is going to unfreeze funds so he can pay for his legal defense and stop trying to say that lawyer is to good you can't have him?

      [ link to this | view in chronology ]

  • identicon
    quawonk, 18 Jul 2012 @ 10:02am

    It's kind of self defeating to step down and let a bought judge take his place, isn't it? He has the power to rule the right way in this case. By stepping down, he's just fed Kim Dotcom to the wolves. Doesn't seem very honorable to me.

    [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jul 2012 @ 9:12pm

    Good to see that there are still honest judges out there. Also nice to see that the world, when faced with evil, can still produce heroes!

    [ link to this | view in chronology ]


EU Proposes To Provide Open Access To The Results Of Research It Funds
AT&T May Try To Charge FaceTime Users, Raising Net Neutrality Questions
Follow Techdirt
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Discord

The latest chatter on the Techdirt Insider Discord channel...

Loading...
Recent Stories

Friday

19:39 Important Announcement: Techdirt Is Migrating To A New Platform (0)
More arrow

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.