Main Area and Open Discussion > Living Room
DOTCOM saga - updates
IainB:
Hmm...now the judge in question (David Harvey) has recused himself from the DOTCOM trial: Megaupload judge quits case after inflammatory comment
What a complete surprise (NOT).
SpoilerKim Dotcom loses a sympathetic New Zealand judge.
by Timothy B. Lee - Jul 18, 2012 12:10 pm UTC
The New Zealand judge overseeing Kim Dotcom's extradition fight has removed himself from the Megaupload case. At a recent conference on copyright, Judge David Harvey stated, "we have met the enemy and he is US," a reference to tough US intellectual property policy. Critics argued that the statement called his impartiality into question, and the judge apparently agreed.
"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," said the district court's chief judge, Jan-Marie Doogue, to the New Zealand Herald.
The comments came last week at the NetHui conference in Aukland. The conference was organized by a group that opposed strong copyright language in the Trans-Pacific Partnership treaty.
The development is a blow for Kim Dotcom, because Harvey's May ruling suggested he was sympathetic to Dotcom's arguments. "The United States is attempting to utilize concepts from the civil copyright context as a basis for the application of criminal copyright liability," he wrote, echoing the views of Dotcom's own lawyers. He ordered the US government to give Kim Dotcom data from his hard drives, ruling that their seizure had deprived the defendants of access to information they need to defend themselves.
Harvey has also granted Dotcom easier bail terms, allowing him to return to his mansion and freeing him from electronic monitoring requirements.
According to the Herald, the case will now be overseen by Judge Nevin Dawson. Dawson was previously involved in Dotcom's bail request back in February.
--- End quote ---
The most rational conclusion for this that I can come up with at the moment is that he may have deliberately contrived the situation where he repeated the Twittered quote about "we have met the enemy and he is US", in such a public manner, in anticipation of subsequently recusing himself because of it. (I mean, after making such a statement, he would have to, wouldn't he? It's not like he wouldn't have known that.)
This conclusion is based on an assumption that, generally, judges are not complete idiots - debatable, perhaps, but just bear with me.
Knowing the little that we are allowed to know, at least two possibilities occur:
* (a) Judge David Harvey had to be removed for granting Dotcom easier bail terms: they had been incredibly stern terms initially, presumably at the behest of the US SS, who would seem to have been orchestrating the whole Dotcom SWAT by a sort of remote control over the NZ authorities. So, perhaps to please the US contingent, he could have been quietly "got at" by the NZ government and told to manufacture his own recusal.
* (b) Judge David Harvey wanted or saw no ethical option but to recuse himself: after reading the published ruling of New Zealand High Court judge Helen Winkelmann - that the Dotcom raid was illegal - probably no self-respecting judge would be able to rest easy.
Even without that judgement, in his arriving at a judgement over Dotcom's bail terms, David Harvey would presumably - even had his hands been tied - have been able to make his own observations of the egregious wrongness/illegality about the whole business, and could therefore have ruled leniently on the bail terms. He could thus have become biased in this way, and especially if he had sincerely put 2 and 2 together in quoting the Twittered comments about the TPPA (Trans-Pacific Partnership Agreement) at the NutHui Internet conference. For example, look at the possible reasoning:
"We have been instructed, and have complied, to carry out an illegal act (QED) against a New Zealand citizen over unsubstantiated charges (QED) of crimes related to Internet business, at the behest of the SS of a foreign power who is apparently regarded as being "the Enemy of Internet freedoms". Regardless of whether he has committed a crime (as yet unproven), NZ has thus done a great wrong to Dotcom, his family and his business and has thus breached his statutory and legal rights to protection by the government, justice and privacy. This is generally wrong on statutory, moral, ethical and legal grounds, and we have been complicit in it. It is tantamount to discrimination, victimisation, harrassment of an NZ citizen, compounded by theft, all committed by the NZ government."
--- End quote ---
My take on it is that it is probably (b). If the above suggested reasoning is generally correct, then most judges involved must be sick to their stomachs at what has happened. Even to a casual onlooker, it would seem to be a gross corruption of NZ authority and justice, and it now needs to be rectified. I'm not sure whether or to what extent the Big Bully is twisting NZ's arm over this (probably via threat of economic sanctions), but the NZ government must be sweating as to how to now gracefully extricate themselves from this mess and make proper reparation. The situation would be no different if Dotcom were subsequently found to be guilty of some crime. It is wrong on so many fronts that it beggars belief. Arguably no government deserves to be re-elected if it allows and/or continues to be complicit in this sort of thing. Judges need to remain impartial amidst the chaos.
If there is one thing that successive NZ governments have shown themselves to be, it is that they can be relatively legally balanced.
One of the best examples of this would be the agreement over the Treaty of Waitangi claims and settlements.
Whether you agree with it or not, the disenfranchisement of the Maori (aboriginal tribes) and the theft of their land via the TOW has been confronted, addressed and rectified. I think this reflects what any civilised society could do - if it put it's collective mind to it - to try to give back to the aboriginal inhabitants what was taken from them not so long ago by the colonists.
Try doing that for the American Indians or the Australian Aborigines and see how far you get.
We're all watching with acute interest here in NZ, because this Dotcom saga is turning into a watershed not only for NZ justice, but also apparently for Internet freedoms worldwide.
tomos:
Thanks for the update Iain.
IainB:
Techdirt has an interesting post (copied below) about the US DoJ "tapdancing".
You have to wonder, given the seemingly grotesque logical distortions being used by the DoJ apparently to rationalise an irrational judicial approach, how many in the DoJ are ex-officio lawyers who have acted on behalf of clients in the **AA and then went through a revolving door to the DoJ? I would suggest that the possibility of Dotcom getting anything close to "a fair trial" in such an environment would seem to be as close to zero as makes no difference.
As it says in arstechnica - here:
...
...Dotcom also expressed anger at how he has been treated.
"You can't just engage armed forces halfway around the world, rip a peaceful man from his family, throw him in jail, terminate his business without a trial, take everything he owns without a hearing, deprive him of a fair chance to defend himself, and do all that while your propaganda machine is destroying him in the media," Dotcom wrote.
--- End quote ---
Dotcom has a point. His company has been effectively moribund since January, despite the fact that he hasn't been convicted of any crime. And last month, a New Zealand court ruled that the raid on his home had been conducted with an invalid search warrant, rendering the action illegal. But it remains to be seen whether government missteps will be sufficient to save Dotcom from extradition and conviction.
--- End quote ---
Here's the Techdirt post on the DoJ:
(Read the post to see some very apposite comments.)
DOJ Tries To Explain How It Can Get Around Requirement To Serve Megaupload In The US
from the tapdancing dept
Back in April, a US judge pointed out that US criminal law requires serving those accused of criminal activities and Megaupload, as a foreign-based corporation, might not be subject to such service -- potentially killing the lawsuit against the company (though, not against the individuals who run the company). The Justice Department has now hit back with a filing mocking the idea that Megaupload could avoid criminal charges as a company (pdf and embedded below).
The filing focuses on how Megaupload had extensive operations in the US, including having many of its servers hosted here -- and even had two separate CEOs at various points who reside in the US (including Swizz Beatz, who the filing notes, has refused to cooperate). It further argues that there is no rush to serve the company, and that it can do so once the execs are extradited to the US -- or it can serve them at the office listed in Hong Kong. Admittedly, part of this fight is really about process technicalities, so I wouldn't make too big a deal of them. However, there are legitimate jurisdictional questions about what the standards are if the US can go after a company anywhere in the globe, just because it's online. That could certainly come back to haunt the US, as US companies are frequently targeted by other countries. Having a case like this could be used as justification to retaliate against US companies.
The filing also highlights something that is somewhat self-contradictory about the US's case. In an effort to argue US jurisdiction, the DOJ argues that Megaupload has been involved in civil lawsuits (on both sides) in the US. That is true... but that seems to weaken another contention in the DOJ's wider case: that it had to take the actions it did because Megaupload was somehow "unreachable" as an offshore "rogue site." The actual evidence, as noted by the DOJ itself in this filing, proves otherwise.
--- End quote ---
IainB:
Update via Slashdot:
US Gov't Says They Can Still Freeze Megaupload Assets If the Case Is Dismissed
Posted by Soulskill on Saturday July 28, @12:26AM
from the taking-your-toys-and-going-home dept.
The Megaupload case continues, and on Friday attorneys for the U.S. government made some interesting claims. They were in court to argue against a request to dismiss the indictment against Megaupload that was raised on the grounds that Megaupload has no U.S. address. After a debate about jurisdiction and precedent, this happened: "The government also argued that it could keep Megaupload in legal limbo indefinitely. 'None of the cases impose a time limit on service,' the government's attorney told the judge. Therefore, the government believes it can leave the indictment hanging over the company's head, and keep its assets frozen, indefinitely. Not only that, but the government believes it can continue to freeze Megaupload's assets and paralyze its operations even if the judge grants the motion to dismiss. That's because in the government's view, the assets are the proceeds of criminal activity and the prosecution against founder Kim Dotcom will still be pending. The fact that the assets are in the name of Megaupload rather than its founder is of no consequence, the government claimed."
--- End quote ---
Renegade:
Update via Slashdot:
-IainB (July 28, 2012, 12:55 PM)
--- End quote ---
Umm... Guilty until proven innocent?
Better for The BasementThese are the same criminals that arrest people for storing water and claim that small fires can cause a building to collapse at the speed of gravity (WTC 7).
The list goes on forever. Destroy people for drinking milk? Yeah. That's on the list too. There is no level of insanity that can possibly describe these ****ing criminals.
Does anyone expect any justice? Yeah, right. Smoke another.
I have a serious allergy to this stuff. Causes me to break out in fits of logic, reason, and obscenity.
Navigation
[0] Message Index
[#] Next page
[*] Previous page
Go to full version