Thursday, July 19, 2012

The enemy is US

Judge Harvey has stepped down from handling the Megaupload extradition case, following his reported comments at last week's NetHui conference. The news broke late yesterday afternoon.

"The district court's chief judge Jan-Marie Doogue said Judge Harvey had made the decision to step down from hearing the case.

"He recognises 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.

He [Harvey] referred to a tweet which had played on a reference to cartoonist Walt Kelly: "We have met the enemy and he is [the] U.S." NZ Herald.

There has been much discussion on social media on what exactly Judge Harvey said. The reason for this is he said it twice, on the opening day of NetHui. 

Once, in a session led by Judge Harvey, called 'Regulating bad behaviour online'. See notes of that session here

Harvey said "The problem is not technology. The problem is behaviour. We have met the enemy and he is us", referencing cartoonist Walt Kelly.

Russell Brown (@publicaddress) then reported that comment on Twitter as: "Judge Harvey: "The problem is not technology. The problem is behaviour. We have met the enemy and he is us."#nethui" See that tweet here.

Later in the day, at the session on TPP, Judge Harvey said "if I may use Russell's tweet from earlier, we have seen the enemy and he is U.S." Listen to Judge Harvey on this podcast, at 11.10. That's not what Russell wrote, but Harvey's reworking of it.

So, strictly speaking, Judge Harvey rewrote Russell's tweet, and then attributed it incorrectly to Russell, even tho Harvey rewrote it, not Russell.

I asked Russell about this chain of events on Twitter last night as I thought Russell had 'remixed' Harvey's words (switching us to U.S.), and he told me "no, he said it, I tweeted it, *then* he remixed it." 

It's a shame that Judge Harvey won't be involved in the Megaupload proceedings, as he is widely regarded as our most internet-savvy judge, as witnessed by his insightful contributions to the discussions at NetHui.

UPDATED Russell Brown has written on this on his blog, noting that "...In making a play on his own words, Judge Harvey had created a perception of bias that has eventually led to him opting to stand aside from the Kim Dotcom case. He has done the right thing. But it bears reiterating that he was not discussing the Kim Dotcom case at the time..."

ADDED Nat Torkington has written on Judge Harvey's comment, saying the judge is 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." 

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