Hard News by Russell Brown


Judge Harvey: My part in his downfall

Given that I'm mentioned in about half the news stories about Judge David Harvey standing aside from the extradition case of Kim Dotcom, I thought it would be useful to clear up what happened from my point of view.

Judge Harvey has a deserved reputation as New Zealand's most internet-aware judge. He literally wrote the book on internet law in New Zealand and lectures part-time in Law and Information Technology at the University of Auckland.

He's also a member of the advisory board for Internet NZ's annual grassroots conference, NetHui and contributed substantially at the 2012 NetHui last week. Among other things, he moderated the opening afternoon session on Regulating Bad Behaviour Online, taking as his starting point the Law Commission's review of new media regulation. You can read the notes here.

It was a tricky format -- just a moderator with a microphone and all other commentary from the floor -- and I don't think it would have worked as well as it did without the good-humoured and highly knowledgeable lead provided by the judge. As Rob Isaac tweeted:

Everything David Harvey says drips clue. It's quite disconcerting to see lawyers that are smarter than geeks. #nethui

Tweeting the proceedings is actively encouraged at NetHui, and I relayed Judge Harvey's lucid observation that:

The problem is not technology, the problem is behaviour. We have met the enemy and he is us. #nethui

At least twice, Judge Harvey smiled and firmly declined to comment when Kim Dotcom's extradition case, which he was hearing, came up. I complimented him afterwards on the job he'd done.

Later, after the plenary session at the end of the day, some prizes were awarded for the best tweets. One of them was mine. I could see the irony of winning a prize for tweeting a verbatim quote from another speaker (which itself quoted an aphorism from the American cartoonist Walt Kelly), but I swung by the registration desk to claim the prize. I could see through the wrapping it was a bottle of Kumeu River Estate Chardonnay. Score!

Just as I picked it up, Judge Harvey came by. We laughed about how I'd have to share it with him and he said his main concern was that he'd actually crafted the line for his keynote the next day and he'd have to write something else now.

It wasn't quite the end of the day for me. I'd agreed to stand in for Nat Torkington chairing a 6.30pm session announcing the launch of Fair Deal, a public awareness campaign about the potential threat to New Zealand consumer rights posed by the Trans Pacific Partnership agreement negotiations currently being undertaken by New Zealand, the US and several other countries.

Deep unease with the US stance on the intellectual property chapter of the agreement is the default view in New Zealand. It threatens to drag us back into issues such as rights to temporary copies (ie: the right to use the actual internet), which have been settled for years in our sovereign copyright law.

My panel -- Internet NZ policy lead Susan Chalmers, Neil Jarvis of the Royal Foundation of the Blind, Catalyst IT director Don Christie and Trade Me operations manager Michael O'Donnell -- discussed their objections. Don noted that the New Zealand officials negotiating on our behalf have thus far taken a pretty solid line.

David Farrar commented from the floor on government attitudes (also fairly sound but the temptation will always be there to compromise on edge issues just to get an agreement signed). And Judge Harvey was there too. He spoke about the US position on something else that has long been settled in our law -- the right to own and operate a region-free DVD player.

You can hear the actual recording in Will Hine's useful report for Radio New Zealand. Hamish Fletcher transcribed it thus in his New Zealand Herald story:

Under TPP and the American Digital Millennium copyright provisions you will not be able to do that, that will be prohibited... if you do you will be a criminal - that's what will happen. Even before the 2008 amendments it wasn't criminalised. There are all sorts of ways this whole thing is being ramped up and if I could use Russell [Brown's] tweet from earlier on: we have met the enemy and he is [the] U.S.

Fletcher's story didn't appear until the following Monday, five days later, -- but when it did, it appeared in the lead position on the Herald's home page, under the headline US 'the enemy' says Dotcom judge.

Inevitably, the story was picked up from there by internet news services as Megaupload Judge Calls U.S. "The Enemy". 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.

I confess, I was a little surprised at the time Judge Harvey made his pun. But I do hope it won't deter him from taking an active, public role in debates about the internet and copyright law. Because, as distressing as this furore must have been for him, his involvement at NetHui last week was was an examplary demonstration of how much a judge, lawyer and teacher can contribute as a public intellectual.

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