Analysis: What Judge Harvey said
District Court Judge David Harvey has removed himself from the Kim Dotcom extradition case, due to be heard next March.
His step-down follows a pointed comment he made at the launch of the "A Fair Deal" coalition on Wednesday July 11 last week – a lobby group formed to focus on issues around the Trans Pacific Partnership free trade deal.
It was at 6.30pm at Auckland's Sky City Convention Centre, following the first day of sessions at InternetNZ's Nethui conference.
I was at the launch, and reported Judge Harvey's comment, which was: "We have met the enemy, and he is the US."
It finally hit mainstream media on Monday, July 16, when the Herald picked up on the comment.
Judge Harvey was chairman of the Copyright Tribunal for six years, and lectures part-time on information technology and the law at Auckland University.
He does play things on the front foot in terms of his frequently expressed opinions on legal and internet issues, and his stepping away will completely change the complexion of the extradition case, which is being followed around the world.
Given the extreme consequence of Judge Harvey's one-liner, it's worth looking at its context – which includes his broader assertion that NZ copyright law protects not just a copyright holder, but an audience's right to access content.
That is 100% true, but also wildly unpalatable for Kim Dotcom's foes. A US-driven chapter of the TPP would over-ride that philosophy.
First, we have to rewind to the morning of Wednesday, July 11, when Judge Harvey moderated a Nethui panel discussion on "regulating bad behaviour on the internet." At one point, he said, "We have met the enemy and he is us."
During his later keynote, on Friday, he elabourated on this theme, making the very good point that the internet didn't invent bullying or or sexual predators (he could have added that it has created a very efficient way of catching them, but I digress).
He summed up:
All of these behaviours pre-date the internet. It is not the technology. We, in fact, are the problem. As I said earlier at this conference, and there's the source [a Walt Kelly cartoon appears onscreen] 'We have met the enemy and he is us. It’s our problem'. It’s our behaviour.
It was a clever line (the Walt Kelly cartoon was from the 1960s and refers to the Vietnam War; paraphrasing a quote from 19th-century US naval commander Oliver Hazard Perry) and was duly retweeted by Russell Brown and other attendees.
Here is the full video (the build up to the enemy line comes about 8 min 30 sec in):
No problems there.
The more controversial segment was the "A Fair Deal" launch Wednesday evening.
It was there that Judge Harvey, taking the microphone from the floor during a Q&A, and riffed on the heavy-handed US approach to DVD region blocking. It was this speech that climaxed with a reworking of his "enemy" line from earlier in the day.
Some have said he got crucified for making bad pun.
But his comments that proceeded it also indicated he had a pretty clear view on the direction the US government's copyright policy, and its efforts to impose its view on the world.
Did they step over the line? You be the judge. Appearing in a personal capacity, he expressed his concerns about the TPP, and the technological prevention measures it may require member countries to enforce (the measures are pushed in a leaked copy of a US-backed chapter of the trade deal, still under negotiation; see a leaked version here).
Judge Harvey said:
I'd like to take this down to a personal level.
This change in copyright law is going to affect each and everyone of us and here's how it works.
Within the copyright spectrum, there are two types of rights. There is the author's right, if you like, to control copying, but there are also secondary rights that sit underneath that in what has been referred to by the Australian High Court as para-copyright.
That is the involvement of technological prevention measures.
There are technological protection measures of all sorts of flavours and one of the flavours and one of those flavours is one that stops you from accessing a region one DVD [the US region] on your region 4 [NZ] DVD player.
Now you can hack around that, and you can do that around New Zealand law perfectly legitimately under the 2008 amendments to the Copyright Act – because access was the issue, copying was not.
Under TPP and the American Millennium Copyright Act provisions, you will not be allowed to do that. That will be prohibited – point one.
Point two – if you do, you will be a criminal. That’s what will happen.
Now even before the 2008 amendments, it wasn’t criminalised.
There are all sorts of ways that this whole thing is being ramped up.
And if I can use Russell’s tweet from earlier on, ‘We have met the enemy and he is the US.’
You can listen to the audio as part of Peter Griffin's Sciblogs podcast here (Judge Harvey comments start 9 min 30 sec in).
I'm not 100% clear from the audio if Judge Harvey half-ate the "the" in "the US", or left it out for a cleaner pun on his earlier quote, but either way he is clearing saying "US".
And it's clear from the audience's reaction (nervous laughter, clapping, and someone exclaiming "woah") that there was little doubt in the rest of the room.
Now Judge Harvey has had to step down from the world's biggest copyright-related case, presumably under pressure. It seems a bit rough.
* Not that you have to; the makers of DVD players do it for you. The same access argument applies to region-blocked commercial movie downloads.