I already spoke of how disappointing it was that Robert Amsterdman, a prominent human rights lawyer, known for many years for his work in Eurasia, joined the Kim Dotcom circus. As even copyleftist Mike Masnick put it aptly about this latest Dotcom gambit to take a man with a reputation for working on legitimate human rights cases from Russia to Thailand
This strikes me as a huge longshot for a variety of reasons, but it certainly makes for an interesting storyline to follow. If such an investigation actually does get somewhere, there could actually be blowback for those who led the charge against Dotcom. As it stood, it seemed unlikely that, even if the case fell apart, there would be any ramifications for those who championed the cause in the first place.
I've known Amsterdam for a number of years, talked to him a number of time about cases in Russia and Central Asia, and I know he always passionately cared about his clients and believes in his cause -- and that's why it's sad he's been ensnared in the Kim Dotcom mania. I view it as part of the very cunning and concerted effort that the whole copyleftist gang from Mitch Kapor and John Perry Barlow on down have been waging for a decade to convert the cause of copyleftism into a free speech cause, and to erode the distinction between due process and lawyering for hackers and make them over into "Internet freedom fighters". Unconvincing -- and dangerous long-term for real democracy and human rights, which is why I object.
I don't care what law-faring you do with this; I don't care what edge-casing and hysterical hypotheticals and Internet screeching and flash-mobbing you do with this, you will not get me to believe in it, ever. Because I've seen how this works from the inside of the open source projects of these people for the last ten years and I know them not to be acting in good faith.
The Electronic Frontier Foundation pretends to give advice to bloggers -- but they aren't really interested in classic free speech cases and seldom take them up -- they're more interesting in law-faring, i.e. using literalist and stretched notions of the law to wage warfare for a political case, for hackers. That was in their origins; that is in their current aggressive campaigns (although...they didn't take on Swartz's case while he was alive because they shy away from big criminal cases like that, even though they let all their operatives nod and wink about prosecutorial overreach and the need to change the computer fraud law and all the rest of it -- if it were Abbie Hoffman, it would be Steal This Book).
But when they give this advice, they tell you as an example not to criticize lawyers -- they have very cunning and aggressive lawyers on their staff themselves, and they don't defend bloggers who criticize lawyers unless they can show they are working for the Hollywood industry -- they love exposing and vilifying anyone who files a DMCA copyright infringement notice that they think they can gin up as a "chill on free speech". In fact, they have an entire "chilled speech" page that they work with Google on for such purposes).
Kim Dotcom isn't a case of EFF's, although he fits in their propagandistic sphere, and all of the Mitch Kapor founded and funded outfits are happy to add to the chorus around Aaron Swartz and Kim Dotcom even if not directly working on those cases.
Robert Amsterdam has published a lengthy and detailed account titled "Kim Dotcom and the Redefinition of American Corruption explaining his embracing of the Kim Dotcom cause (it's not clear whether it's for a fee or pro bono; I think likely the former).
And I can't hope to answer all the many legal fiskings and literalisms and maneuvers and even legitimate uses of the law in that post because a) I'm not a lawyer b) I earn a fraction of what Amsterdam does and don't have the resources to study this all day and counter it. Even so, I'll call out some of the main problems.
Let me say on all the counts regarding how the New Zealand government treated Kim Dotcom, I give a big eyeroll. No doubt they violated their own laws in their frustration to try to pounce on this cunning and elusive and flamboyant creature. It's easy to do.
As for some of the other claims about American prosecutors:
o Amsterdam joins a long line of copyleftist tech bloggers and lawyers who fail to mention the six-month plea bargain (BTW, Shava Nerad is even purveying a rumour that the family says that this plea-bargain was withdrawn two days before Swartz's death, which I think has to be untrue -- the lawyer confirmed the plea-bargain finally after his death and never made that claim; the Boston Globe covered this and he never refuted it; in her own statement recently Carmen Ortiz, the prosecutor, re-iterated the plea offer). Amsterdam, like Declan McCullough, the most prominent of the copyleftist tech journalists on this, reiterated the scary 50 years, although he knows full well, as a journalist (although he is not a lawyer), that there are no cases even remotely resembling anything like that in the US for this type of crime. Precedents count for a lot in this country, unlike others, and there are no such cases -- hackers get one year or two years -- very large spectacular ones may get more, but mainly we've seen hackers let go after turning state's evidence or on other grounds like the Asperger's defense.
o Amsterdam implies Chris Dodd has done something corrupt and wrong. Nonsense. Like lawyering for controversial celebrity cases, working as a lobbyist is lawful in this country. Dodd is not doing anything improper by representing Hollywood and lobbying for SOPA. He's not doing anything more improper than Google and its lobbyists and the numerous Mitch Kapor nonprofits are doing lobbying *against* SOPA, although we could argue that some of those NGOs really should reclassify themselves from 501-c-3 to 501-c-4 given all the blatant political and legislative work they do. Dodd has ever right to try to represent Hollywood and the record industry in trying to cope with blatant copyright theft.
o Amsterdam implies that when Chris Dodd threatens legislators that Hollywood won't keep writing checks for their campaigns if they can't get behind anti-piracy law, he's doing unethical -- but it's what Silicon Valley does every day of the week. Daryl Issa and Zoe Lufgren of California and others stumping against the copyright legislation have people writing them checks, too. The other day a Silicon Valley activist started a campaign to get the US and Big IT to defund the ITU, something I oppose because it's just thuggery and a failure to negotiate in a multilateral settting. On Fred Wilson's blog, we see calls for wealthy MIT alumni to stop giving to MIT over the Swartz case -- financial blackmail is the way Silicon Valley and its hacker culture always rolls.
We just saw how Silicon Valley used outright thuggish blackmail over SOPA, turning off Wikipedia and other large sites and letting us know that they would withhold service if this law passed. That's too much power. If Amsterdam cares about human rights, he should worry about that thuggery, and not the actions of a few weak prosecutors and the one lone lobbyist Hollywood has gotten to step out into the public eye with support against piracy -- something that guarantees a person will suffer vicious and multiple and awful attacks from legions of Anonymous shock-troopers, with their privacy exposed and websites hacked, and more. Chris Dodd and Hollywood lost, remember? And Kim Dotcom isn't in jail, remember?
o Amsterdam implies, along with other tech bloggers now, that there's some horrible evil Hollywood/record industry cabal that is ruining young people's lives and forcing them to commit suicide and improperly chasing foreigners. But... again, Hollywood has lost. "The Internet" produced not only Google's 7-million ginned-up clickers, Mitch Kapor supplied all the funded cadres and John Perry Barlow's Anonymous foot soldiers already came and sunk SOPA before it could even come to a vote. The real menace we have to fear isn't beleaguered Hollywood, but the hacker mob riot that refuses to recognize the rule of law and basically used its skills to win the election for their candidate Obama in the hopes of even more concessions like the end to SOPA. PS, they lost on CISPA, too, which never came to a vote, and instead got yet another executive order. Amsterdam should be worried about that, and yeah, I realize Obama hasn't yet written as many of those as other presidents. But...so what? Let's look at the content of what those other presidents wrote them on, and see if they are as crucial to our liberties, eh? Don't see any charts on that, now, do we.
o I continue to maintain that it's precisely because there is no SOPA/PIPA or any law of any sort that we have these demonstrative cases, in my view. That substitute law supposedly opposing piracy supposedly being written, that technologists and Google supposedly supported never came to anything because they never meant it to. When there isn't legislation with definitions and case law building up -- when there isn't the rule of law -- that's when you see prosecutors making "show cases" -- and I'm not even sure that's in fact what they are, I'm still skeptical.
But to the extent that you can even say that some prosecutor wanted to "make an example" of Swartz, it's because Swartz himself, leading one of the Mitch Kapor NGOs, Demand Progress, successfully defeated SOPA, and while that in itself isn't a crime, because indeed, "thoughtcrime" isn't a crime, he went on, emboldened, to hack into MIT's servers and steal 4 million JSTOR documents. Were these prosecutors being vindictive over SOPA? No, these are prosecutors who are Democrats in the liberal state of Massachusetts, appointed and sworn in by Governor Patrick, with Eric Holder as attorney general. These are not people with a Hollywood axe to grind; they have the liberal hackers' paradise MIT and the Berkman Center in their state, not motion pictures.
They applied the law properly as I've explained here on this blog, and as Volokh Conspiracy's Orin Kerr explains in expert detail.
You don't code up a circumvention script called "keepgrabbing.py" and hide your identity physically and digitally if you are just accidently taking out too many books from the library and using authorized access that is merely an "inconvenience" if you take 4 million files. Nonsense.
o So it seems to me, Amsterdam is more interested in "redefining American crime" so that it isn't corruption, and taking lawful activity and trying to portray it as corrupt -- all this silly stuff about "getting money out of politics" -- which of course doesn't mean getting the money of George Soros or Katrina vanden Heuval out of politics. So he sees this as a drama involving evil and corrupt Hollywood moguls and lobbyists against bright geniuses in the computer industry that bring "innovation" to our land.
In part this is because he just doesn't see and never had to deal with evil and corrupt Silicon Valley moguls and lobbyists, or else they just seem more clean to him.
o Amsterdam complains that the movie companies never directly sued Kim Dotcom. But that's like saying dozens of little shops in New York who never launch civil suits against obvious thieves who steal from their shelves don't have a case. They don't sue robbers because... they call the police instead. The police and prosecutors and in this case ICE are the proper authorities to pursue massive piracy on a large scale with large personal gain, not direct personal civil lawsuits, that's preposterous. The record industry counts on the customs authorities to do their jobs, just like MIT counted on the prosecutors of Massachusetts to do their jobs, upholding the law. Amsterdam isn't redefining corruption; he's redefining crime, and that's always scary when a lawyer does that -- especially with the mighty clout of Google and Silicon Valley in the wings, eager to overthrow Congress and the courts, who just successfully got the FCC to bend to their will.
Amsterdam concludes:
With this attempt to “colonize” the global internet under U.S. laws, Washington is quickly making a bad name for itself, and putting its considerable influence on the wrong side of digital rights, free markets, and competitive innovation. They do this in the name of protecting a broken business model, subsidizing monopolies, and seeking to destroy crucial online functions instead of adapting to the incredible opportunity afforded to them through mass connectivity. We deserve better, we can do better, and everyone can benefit from a more reasonable approach focused on the best interests of the public, not the best interests of lobbyists and the politicians in their pockets.
We see this as a grand ideological debate with far-reaching implications, and sadly, my lengthy experience in countries where special interests control the levers of power may have some utility here.
He's right it's a grand ideological debate, but he's on the wrong side of it, as are many, with the false chimera of "connectivity" leading to anything but more Google ad clicks and more dollars for Google and its cronies. The politicians now in the pockets of Silicon Valley are obvious, and the revolving door of Google into the Obama Administration is obvious. Look, guys, if you want us to believe your "competitive innovation" hoopla, stop pirating and hijacking content to sell your ads, eh?
The "California Business Model" favoured by Kim Dotcom -- an avatar of technocommunism who rightly says he is doing nothing different than Google who followed MySpace in originating this sleazy method -- involves creating open platforms, letting people sign up for free and upload whatever the hell they want, and then forcing intellectual property holders to chase them with DMCA notices -- all while they profit making ad revenue next to that hijacked content.
That is the broken business model, not only because it makes it impossible for people to make a living online with digital content and have choices about commerce and copying instead of coercion as we get from Creative Commons. It's a broken business model because ad revenue is not enough to sustain these businesses. All the AOL properties have to supplement ad clicks and consulting sales with big expensive tech conferences and other special events for which they charge a fortune. Every single web site that makes revenue really has to rely on consulting and sale of other products besides digital ones. There is no path to prosperity built from "connectivity" alone -- save for a few moguls and their ideologues and shills like Cory Doctorow, who himself does not make a living from sales of his free book but from consulting.
"Your information wants to be free; mine is available for a fee."
The narrative of "prosecutorial overreach" instead of "professorial overreach" isn't convincing and even if Kim Dotcom and Swartz's many supporters succeed in overthrowing the rule of law, they won't have created any "sustainable business model" or solved the problem of criminality on the Internet at all, they will have only fueled it.
I find these people to be immoral and will always find them to be so, regardless of whatever technical legal maneuvering they make to get themselves off, and to undermine the prosecutors and courts as if they were the problem.
And speaking of morality, I have to ask Amsterdam about the last case I interviewed him about a year ago for a story, a Tajik mining engineer named Said jailed for 12 years in Uzbekistan for the highly dubious charges of "espionage" merely because he worked for a British gold-mining company named Oxus. Oxus was first welcomed into Uzbekistan in sunnier times and mined away happily with the state joint venture taking its cut. Then the Uzbeks got mad and/or greedy and suddenly nationalized the whole thing and seized the assets -- that's what happens in Central Asia and that's why Maplecroft has recently called out these countries as being terrible for investment.
For a time, Oxus published press releases, as did Amsterdam, about this engineer, as part of their whole effort to fight their case, get their assets back, and get the criminal case withdrawn. They fought for some time on this, then finally, they either lost or made a deal, it's not clear to me. They withdrew and fled the country -- they had foreign passports. The engineer -- a Tajik in a country where the Tajik minority is distrusted -- remains languishing in one of the worst prison systems of the world where torture is rampant. They never spoke of him again. How is he doing, Robert?
Lawyers aren't required to keep caring about past clients, pro bono or not. They are lawyers. They move on. They defend clients, not the law; that's the important thing to understand always about lawyers. They are officers of the court; they pass the bar and are duty-bound to uphold the law. But that includes understanding it as they like, with whatever interpretation they think they can get away with, as we've seen in all the discussions around Swartz or the past ones around SOPA with copyleftist attorneys.
One of the big problems with lawyers and clients with deep pockets is that they don't tolerate criticism, and are happy to use libel law to try to silence you. It's very hard, given their determination and their resources, to avoid making a statement that they might exploit in their use of libel, especially in countries without as rich a First Amendment culture as the US. So I doubt I will be able to go on trying to criticize this case and these people. Even so, they will never have convinced me that what they are undertaking is a moral and just proposition.
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