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Dutch Judge Who Ordered Pirate Bay Links Censored Has Conflict of Interest (falkvinge.net)
267 points by Tsiolkovsky on May 12, 2012 | hide | past | web | favorite | 61 comments



Everyone following the anti-piracy org BREIN and it's lawsuits in NL knows that this judge is corrupt, but it cannot really be proven. BREIN always uses the same judge, they always make it impossible for the defendant to be present at the hearings (as I understand it, but I don't know much about it, they use some loophole to make it impossible for the defendant to defend itself at the moment of the verdict). And he always finds the defendant guilty in these cases, no matter how insane (like the 'links case' Falkvinge discussed, were even showing the name of a movie in the forum was considered 'illegal linking').

This should get more press, but not enough people care in NL I think as this is only dredged up as 'wow how can this be' in tech forums while it's usually only a footnote in other press. And I don't believe that's a conspiracy, but rather that, no-one cares...


How can they always use the same judge?


BREIN has shopped around all over the country, using different courts every time. Most of the time they lost. But suddenly they stopped, and brought all their cases to the same court in The Hague where they started winning cases most people considered absurd.

You do the math.


I have no clue. Maybe it's only the cases he presides which make the press as BREIN wins there, but I'm fairly positive I read somewhere they always 'use' this judge. Maybe someone else knows more about it here?


Even though I'm dutch and live in NL I have no idea how our judicial system works. However, I was under the impression that a random judge is appointed to a case.

If my impression is correct and this judge actually does the majority of Brein's cases wouldn't that alone be worth an investigation?


If it is like in Germany, there's the concept of the "legal judge": There must be a regular set of rules which judge covers which cases. That can vary locally, and over time, but it must apply to all cases filed at the same court at a time.

These rules exist to ensure that judges can't take over cases they wish to distort in some way (eg. because they don't like the plaintiff or defendant, they have a strict opinion on the subject matter, ...).

Unfortunately, the rules used in some places here allow(ed) the plaintiff to skew things in their favor (if they want a certain judge to handle the case). If assignment depends on the date of filing, they wait for the right day. If it's semi-random (but guessable to some very high degree based on prior day's assignments), they check the records to find the right timing... These lobbying groups consists mostly of lawyers - if there's a loop hole, they'll find it.

It's possible that BREIN found a legal way to skew assignments in their favor, too.


Yes, I do think it definitely warrants investigation as definitely all high profile BREIN cases I heard of (and that's more than these 2) were with this judge. If it would be random then someone has a bad generator :) And i'm sure, somewhere, someone is getting Rolexes and seats in councils for this.

Edit: Ah, Hensen already has a seat in the Benelux council for intellectual properties.


Thank you very much. I'm glad that you have proven that people the world over can be ignorant, lazy, and uncaring - not just Americans. If an American had written what you wrote(about having no idea how our judicial system works), his comment would be paraded about as proof of the idiocy of Americans.


Well, in the Swedish case where TPB had issues with the judge, the judge was chosen essentially because they knew what this newfangled filesharing thing was, which was more than could be said for just any random judge.


That makes a lot of sense; guess that's it. But I would say it's duty of the gov to make sure every expertise significantly large has at least 2 judges capable. Otherwise it's too easy to get into this kind of weirdness.


This judge isn't so much corrupt as politically and ideologically motivated. This became most clear in his judgement in which he described the Pirate Party as a radical party because they favor copyright reform and transparent government.

He actually believes in draconian copyright protection, and considers himself to have the right to take measures the government fails to take, and to use ISP's as his on private anti-piracy police force.


FWIW, Geenstijl (probably the largest/most known blog in the Netherlands) reported on this matter in 2010 already, here http://www.geenstijl.nl/mt/archieven/2010/06/rechter_in_zaak... (in Dutch).

There has been some uproar about this on (Dutch) internet sites, however I haven't seen anything about it in mainstream media.

On a related note, just today a small ISP that needed to block TPB has refused to do it and they are now sued by BREIN (http://tweakers.net/nieuws/81929/brein-daagt-zeelandnet-om-t...). The trail will start in June and is expected to last several months. I just hope this time maybe more uproar will ensue if the same judge is doing the case again.


That will be interesting. Shame it takes so long and it will be 'komkommertijd' (summer) so although media will write about it, they already know that not many will read. On the other hand; it's a good time to get ANYTHING in any press starting june, so why not this?

Very curious to see if it's Hensen again. I would think it is.


After the summer we'll be having elections: this case is proof that NOW is the time to push the Pirate Partij.

We're the Netherlands, it's our job to be forward thinking, an example to our friends a few kilometers to the East (the Germans, for those not well versed in European geography). As it now stands they're past the first corner, but there's still time to catch up and overtake..


There is so much unproven bullshit and downright deception in that article that this is the first thread I've flagged in a year and a half.

1st. No one has been charged, tried, and found corrupt.

2nd. Was this association before, during, or after the court case? There really is a difference between those three.

3rd. What is this "association"? The judge's name is part of the lower category with a dozen other names. Does this mean he's in the same building?

4th. Even this article is starting to claim (in edit/update, forced by a commenter) that this "commercial" course was some type of an official bar course where the two parties were perhaps picked by the bar (as in, they didn't pick each other).

5th. The article keeps on mentioning that this judge ruled "file names" to be illigal. Right, because taking the URL and breaking it appart before posting it on a warez site clearly turns everything around and makes the forum a place for a purfectly legitimate discussion of "file names". The author seems to be outraged by this.

And it goes on and on...


1st, corruption is like "being a dick" in that you don't have to have been found guilty of it in a court of law in order for it to be true.

2nd, corruption is corruption. Does it matter when? Before, during, after, it's still sketchy as heck. Any judge in possession of their mental faculties should think twice before creating the appearance of impropriety. I don't care if it's an official course - find someone else!

3rd, and 4th, granted.

5th, Right, because having a link to a file (and nothing more!) is somehow infringing anything. The affected server had no infringing content on it. I'd be outraged too. The idea that search engines and other sites should have to be censored despite not doing anything wrong is insane - equally insane is the idea that I can construct an anchor tag that will get me in trouble with the law.

Equally sketchy is the fact that this particular judge always seems to preside over BREIN's cases.

That's two strikes, and he seems reeeeeaaallly eager for a third.


"I don't care if it's an official course - find someone else!"

If you read http://webwereld.nl/nieuws/66177/ftd-vonnis-is--schokkend--e..., you will learn that Arnout Engelfriet (who more or less invented Internet law as a separate subject of study in the Netherlands) states that he, in his role of council for the defense, did not think that the judge needed replacement because the circle of Dutchmen knowledgeable of the matter is so small that it is impossible to find a knowledgeable judge who hasn't had some contact with someone from BREIN.

So, if you claim corruption, you should include mr. Engelfriet in it.

He disagrees with the rulings, too, but that is a different subject.

"equally insane is the idea that I can construct an anchor tag that will get me in trouble with the law."

Not all countries follow US law; freedom of speech carries lower weight in some of them. For example, one cannot publish "Mein kampf" in the Netherlands (AFAIK, the current stance is that a scientific edition might be legal)


Ahh, I didn't know that about Engelfriet, so thanks for the link. If there's truly not that many judges, I suppose their hands are tied. Still, there's that "Ehhhhhhh...." feeling associated with the whole thing, regardless. Some of that is irrational.

As far as freedom of speech, I find the instance you mentioned to be equally insane.. but given the choice between the USA and the Netherlands, I'll still take the Netherlands (or almost any other European country) every time, despite being a US citizen.


No, it's normal for judges to teach courses on law. As someone studying law, I much prefer classes where a judge teaches or participates as a guest lecturer or panelist. Judges who are expert in a particular area of law often end up trying similar cases, and even if judges are randomly assigned (depending on the judicial system) a judge with established expertise will be noted mainly for his/her rulings in that area of expertise.

I have no idea about the merits of these particular cases or the quality of the judge's legal reasoning. It might be terrible. But Falkvinge isn't making legal arguments about why the judge is wrong, he's relying on people's ignorance of the judicial system to whip up opposition where none exists. Politicians always like to beat up on judges, and there is always a ready audience for populist bullshit.


Would it not still be considered proper for a judge to recuse him or herself if the plaintiff in the case is their co-teacher and business partner?


In the original Dutch news report (linked to in the OP article), a third party lawyer observes that this was known about already but was not considered worthy of challenge. Recall again that the classes in question are aimed at lawyers; this is a very different situation than if they were teaching or consulting to copyright holders. Any legal class on copyright would also address matters like defenses to complaints of infringement and so forth.There's no reason to assume the class caters exclusively towards plaintiffs' attorneys.

All that said, I don't know anything about Dutch legal ethics in particular, and I might have misunderstood or mistranslated the information about the classes in question.


Makes sense. Thanks for the clarification.


If that is indeed the same judge working together with the plaintif, then it does still not proof corruption. But taking the case would have been highly unethical. I really hope there will be an investigation into this.


A little off topic, but here in the USA Supreme Court judge Antonin Gregory Scalia went on a vacation with Vice President Dick Cheney, shortly before Cheney's case went before the Supreme Court.

I may be wrong about this, but when I was younger it seemed like corruption was well hidden from public view, now the elites rub our faces in the fact that they can get away with just about anything.



If I were the President, I would do exactly the same thing. Fact is, that Supreme Court nominations are highly political motivated. You have in your presidency one or maybe two chances to appoint a new judge.

That judge is going to sit there for about 20 years. As you see right now with the upcoming supreme court decision on the healthcare issue, the decision is most likely going to be made along the party lines, with most of the decision power hanging on the mercy of a single judge. If you are the president and have the ability to appoint/suggest a judge, you need to find someone that you can rely on to keep his political leaning intact for the next 20 years. Otherwise you are significantly reducing the chances to see your worldview represented in the rulings for the next 20+ years. Sure, the process is questionable, but I can completely understand that politicians see the appointment of judges as a very strategic element, and therefore making it necessary to keep them close. But apparently too close in some cases...


As I write in the comments - once you've corrupted yourself as an official to the level of the 2010 case, you cannot UN-corrupt yourself in the eyes of the public. It is of paramount importance for the credibility of the judicial impartiality that there's not even a credible BELIEF of a bias, which is clearly present in this case.


> But taking the case would have been highly unethical. I really hope there will be an investigation into this.

Yes, doing something "highly unethical" IS corruption. If you are a public official and you do one or more "highly unethical" things, you are corrupt.


This is not true. A judge could be disparaging to the defendant in court, for example - this is not corrupt, it is just highly unethical.

Corruption is "when an elected representative makes decisions that are influenced by vested interest rather than their own personal or party ideological beliefs" [1]. The key phrase is vested interests - that's what separates vanilla unethical behaviour from corruption.

[1] http://en.m.wikipedia.org/wiki/Corruption


OK, but why would a judge do such a thing out of the blue, with absolutely no motivation? You're assuming that an otherwise competent and objective judge would wake up one day, walk into court, and just randomly decide to do something highly unethical (we're not talking about accidentally making more photocopies than he needed or something, we're talking about something highly unethical) for absolutely no reason at all.

Now, perhaps he has a mental illness and he has begun doing things for no apparent reason, beyond his conscious control. That might be the case. I'm sorry for missing that narrow exception.

However, in practice, rational people don't just do highly unethical things for no reason. In fact, that really speaks to the very definition of a "rational" person in many ways. No, they do them because they get some sort of satisfaction out of doing them, and that is the definition of a "vested interest".

Highly unethical behavior without some motivating vested interest just doesn't exist. The vested interest needn't be financial of course, but it is still there.


[deleted]


My point really has nothing to do with the ruling being correct or incorrect, though. My point is that highly unethical behavior is almost always corrupt by the definition of corruption you gave because there is almost never a reason other than "vested interest" for a public servant to engage in highly unethical behavior. Even if the vested interest is something relatively innocuous like convenience, it is still a vested, personal, interest.

It is also worth pointing out that corrupt behavior isn't always illegal under that same definition (at least the portion you quoted, which seems to be a pretty "common sense" way of looking at the issue).

Additionally, even where the behavior is illegal, it is easy to imagine situations in which there would be no way to prove to a court (given that, in the US at least, the standard of proof is quite high in criminal trials) that the corrupt behavior violated the law.

This last point is one reason we have elections. Even when the courts can't establish that a leader is corrupt (quite a tricky thing to do), the public can convict the individual at the ballot box. Of course this doesn't always work, and sometimes it works backward (and it doesn't work at all for appointed judges, though in the US they can be impeached and removed by the legislature).

No system is perfect, but based on the article I am comfortable concluding, at least provisionally, that this particular judge is corrupt. Of course my opinion means exactly nothing to the Dutch people and government, but since when has an issue like that stopped us from having a rousing discussion on HN? :-)


It is very unethical. Don't judges have ethical guidelines they have to follow?


In Sweden the practice is that a judge should not be on a case where there is even a hint of potential corruption. To me that sounds like a good practice to protect the reputation of the system of justice.


Agreed, a very good practice. Too bad the Judge in the Pirate Bay case a few years ago had more than a hint of bias:

http://www.wired.com/threatlevel/2009/04/pirateconflict/


The Swedish Judge who found all the Pirate Bay people guilty was also associated with a pro-copyright or pro-"Intellectual Property" organisation, too: http://www.wired.com/threatlevel/2009/04/pirateconflict/

To my (USA) mind, this seems like Enemy action, or a multi-national conspiracy. In the USA, judges with this kind of appearance of bias would most like recuse themselves, and if they didn't, one side or the other would try to set up the whole case for an appeal later, and then appeal later with flags waving and horns honking.

Why does this appearance of judicial bias occur so often in connection with The Pirate Bay?


"Why does this appearance of judicial bias occur so often in connection with The Pirate Bay?"

Because the internet's repeatedly not getting the answer they expect. Apparently only a fool and a corrupt one at that could possibly consider TPB, a site which everyone even marginally familiar with knows is devoted to piracy and profiting off piracy ever second of every day, to have anything to do with piracy! Also international conspiracy lol.


Your reply doesn't provide an answer to the question you quoted.


When there is a singular person responsible for a decision, corruption is inevitable. They are an easy target.

Judicial decisions should be taken by a council rather than an individual.


Misleading, unproven and sensationalistic.....


I actually thought the proof presented was pretty convincing, if that holds up the lawyers for XS4ALL, ziggo and a bunch of other dutch providers will surely use this in their appeal.


That sounds much like Richard Nixon when he first read about watergate.

Unproven and sensationalist it is, but how is it "misleading"?


"Found To Be Corrupt" suggest an official inquiry of some sorts. Not the opinion of the author.


Not exactly - in this case, a person on Twitter found a two-year-old article showing that this particular judge was corrupt in copyright monopoly cases. There is nothing denoting how "official" the conclusion is, not inherently in the expression.


In a juridical context, "found corrupt" means something like "a judge ruled that X is corrupt". It's easy to think that that is what the headline says.


And in a technical context, it means that a data file produced a read error.

In a blog context, it means neither.


So what does "found to be corrupt" mean in a blog context? "Please sue me for libel?" (Yes, I see the note. "I don't need journalistic integrity, I'm a registered journalist!")

Good job on finding the other common meaning; you'll have noticed that a search on "found to be corrupt" yields two meanings besides this article: corrupted data, and findings of a court or investigation.

There are a lot of ways to phrase the headline that wouldn't make a reasonable reader assume that this was an official ruling, e.g. "X is corrupt", "Why X is corrupt", "Evidence that X is corrupt", "X alleged to be corrupt", or really anything but "found to be".

The facts by themselves are interesting, but the headline I found misleading.


> So what does "found to be corrupt" mean in a blog context?

It means that evidence indicating corruption has been found. Any other reading puts words in their mouth.


"Found corrupt" in the same sentence as "judge" strongly suggest a judicial context. This is not accurate.


Judge_Dredd.avi found corrupt (SCNR, and sadly somewhat relevant, given the filename-in-a-forum issue reported in the article)


... and time more people wrote about it, in whatever way they see fit. Your name sounds Dutch; are you? You agree with this '1-2tje' between Kuik & Hensen?


This is hardly the point. In my experience as a person and engineer I find that there are really no easy solutions or answers to anything. Not in life, not in technical stuff, nor in politics.

As such I have a healthy disdain for people who knowingly and willingly oversimplify or scream to make their point. This doesn't help anybody accept perhaps attracting a crowed that yells "me to" or "it is an outrage"

For this article he could have written or investigated quite a lot of things. For example the process or system that the Netherlands uses to assign a judge to a case. That is kind of vital information if you are going to establish a link between the judge presiding a case, the specific case, the plaintiffs and the outcome. Where is it?

Perhaps it would be nice to note for a (foreign) audience what exactly a Dutch judge does in a case. It is a far cry from an American judge, I can tell you that.

These court cases with the so called corrupt judge? Were they appealed? And if so successfully and why? An other bit of vital information that is no where to be found. What exactly does the dutch law say about copyright? How actually does one hire or fire a judge in the Netherlands? Surely, if anybody, the lawyer of the accused has reason to pursue action and to open his mouth. Etc etc etc.

If you are going to assert in a headline that "someone is proven to be corrupt" or "is proven to have robbed a bank" I expect to read an article that has a bit more to say than a vague accusation mixed in with the fact that you obviously don't agree with the guy.

Hence, sensationalistic, unproven and misleading.


You make a lot of valid points, but I don't think OP knows the answers to those things either. Maybe he is just opening up discussions and that's were I don't agree with you; as a tool to make people think he shouldn't have not written the article; it worked. People are reading it on HN and thinking about it.

I do think it helps. But it's very difficult to see what helped in the end. There were a lot of 'uninformed' articles about SOPA, especially in the big news outlets; I'm willing to bet (but have no proof) that those made the outcry larger than the technically correct and informative ones on HN etc.

But it's hard to tell what makes the pendulum swing and better researched at this time is better, but nothing at all is worse.


ยปMaybe he is just opening up discussions

By this logic (something is good by virtue of the discussions it starts over and above its inherent truthfulness) I could make up BS about any worthy cause and claim that the ends justify the means.

OP asserted the judge is corrupt. Not that there is evidence that he is corrupt, but that he is corrupt. By stepping so far so early he is essentially playing the analogy of the Tea Party card - rally your base, i.e. those who already agree with you, while alienating the centre. It's immature righteous indignation instead of reasoned rhetoric.

It's ironic that OP misrepresents the facts in order to condemn a party for misrepresenting facts.


Nothing on this is currently floating in the Dutch media, so probably not worth the read.


If and when the Dutch media pick up on this, would that suddenly make it worth reading? The internet leads the traditional media nowadays, so we decide if they pick up on it.

Sensational headline aside, there are some pertinent facts in it.


Headlines, unfortunately, need to catch people's attention. That's their job.



You may want to send the link to the article to some newspapers in NL, maybe a few will pick it up and investigate. If nobody tells the mainstream press, they may just overlook it.


I've forwarded the link to Ot van Daalen, the CEO of bits-of-freedom.

He has a lot of press contacts so maybe that will make it go somewhere.


Tweakers.net: Het artikel of de meukupdate op de link 'http://falkvinge.net/2012/05/12/dutch-judge-who-ordered-pira... bevindt zich al in de queue. De link kan niet nogmaals ingestuurd worden.

Translation: The article with the link [where this HN story leads to] is already in the queue. The link cannot be sent in again.


I don't find it likely that Tweakers is going to write a full article about this. As on of their writers stated "a serious accusation and not very convincing"




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