Will Megaupload judge's exit change outcome of Dotcom trial?

Jul 18, 2012

Judge in extradition case steps down over joke to copyright conference suggesting the US is 'the enemy'

THE JUDGE presiding over the Megaupload extradition case in New Zealand has stepped down after jokingly labelling the US "the enemy" at a conference on copyright law.

Judge David Harvey has made key decisions in the legal battle by US authorities to bring Megaupload founder Kim Dotcom (pictured above) to America to stand trial on charges relating to facilitating copyright theft.

The BBC notes that during the case so far, Judge Harvey has ruled that Dotcom's internet access should be restored and that the US should hand over evidence gathered during an unlawful search of Dotcom's property.

However, Judge Harvey's impartiality had not come into question until a comment he made at the NetHui internet conference in Auckland last week began circulating in the media.

Judge Harvey was speaking at the launch of a campaign opposing changes to New Zealand copyright law proposed by the Trans-Pacific Partnership, an intellectual property treaty involving the US and other Asia-Pacific countries, which is still being negotiated.

According to the New Zealand Herald, the judge pointed out that it is still legal to tamper with a DVD player to circumvent 'region codes' which, normally prevent a DVD bought in, for example, the US, being watched in New Zealand.

The TPP treaty would make such activity illegal.

Judge Harvey said: "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… There are all sorts of ways this whole thing is being ramped up and if I could use Russell's tweet from earlier on: we have met the enemy and he is U.S."

The final clause is a play on the line "we have met the enemy and he is us" by the famous American cartoonist Walt Kelly.

Following Judge Harvey's decision to step down, the chief district court judge of New Zealand, Jan-Marie Doogue said: "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."

But the development has been met with anger by some tech bloggers. Techdirt's Mike Masnick observed that in countries such as Sweden and the US, judges with links to the pro-copyright lobby had failed to remove themselves from piracy cases.

He added that Judge Harvey's departure was unlikely to affect the outcome of the Kim Dotcom case, since his replacement, Judge Nevin Dawson, "was the judge who released Dotcom on bail, despite pressure from the US to keep him locked up".

Masnick added: "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."

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