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

by 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.