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Risque Images, Music Tied to 9th Circuit Chief’s Site Raises Ethics Questions

Posted Jun 13, 2008 2:46 PM CDT
By Terry Carter

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As this week's revelations about Judge Alex Kozinski’s porn-laden personal website continues in all manner of news stories and blog entries, a less spectacular but possibly just as damaging matter has so far remained in the background with the mute button on: The site contained copyrighted music mp3 files that until recently could possibly be downloaded by others.

The courts, including Kozinski’s own 9th U.S. Circuit Court of Appeals, continue to wrestle with the legalities of the uploading and downloading of copyrighted materials.

Indeed, Kozinski personally has sat in judgment on two such matters in the past, most recently a case decided last fall in which Kozinski, in a dissenting opinion, sided with the copyright holder and said credit card companies should be liable for facilitating illegal sales of copyrighted materials.

His is a household name within the legal profession. Kozinski has been on the San Francisco-based 9th Circuit since 1985 and became chief judge last November. He reportedly has been on short lists for the U.S. Supreme Court.

But his reputation now hangs in the balance. Kozinski yesterday invited an investigation into his conduct and today recused himself from the obscenity trial he was to preside over in Los Angeles.

Kozinski was in L.A. by designation when the Los Angeles Times on Wednesday published a story pegged on the irony that the judge himself had posted explicit sexual images on his personal website. The story described videos and photographs, including one of two naked women painted as cows, a sexually aroused farm animal, masturbation and public sex.

Though such things are commonly distributed on the Internet, legal ethicists have said it does raise serious questions when a judge gets involved.

While Kozinski has been feeling the heat and doing a lot of explaining, through personal interviews and a court spokesperson, he literally has not yet faced the music.

A tour of his website last month by the ABA Journal, on a tip from the same Los Angeles lawyer who gave the story to the LA Times, yielded, for example, more than a dozen mp3 music files, most of them songs by the parodist Weird Al Yankovic.

And some of them are copyrighted. The files included Yankovic’s send-up of the group Survivor’s song “Eye of the Tiger,” written for the film Rocky III. Yankovic’s parody version, "Theme From Rocky XIII (The Rye or the Kaiser)" was on his In 3-D album.

The copyright for that and some other music files that were on Kozinski’s website before it was taken down late Wednesday, belongs to the Scotti Bros., a Sony BMG label. A spokesperson for Sony BMG declined comment.

It was apparent that many lawyers, academics and others are reluctant to comment on such a serious issue involving the chief judge of a federal circuit—especially this judge and this circuit.

A spokeswoman for the Recording Industry Association of America said this morning she would have someone with expertise in the issue get back with a comment. They did not by the end of the day.

A direct request for comment from anyone at the law firm representing the RIAA in its aggressive litigation nationwide litigation over file-sharing, Denver's Holmes, Roberts & Owen, was unavailing.

"It's fun to watch, but we're going to do just that," says one prominent lawyer who represents the entertainment industry.

While known for his brilliance, far-ranging curiosity and humor, Judge Kozinski also is known for his computer-Internet-tech savvy—he even builds computers.

He has said in formal statements and interviews since Wednesday that some of the photos and videos were put on the website by accident and that some of it was for the sake of humor and human curiosity.

His son Yale, who is registered as owner of the Internet domain that included alex.kozinski.com as a sub-domain, has claimed responsibility.

“This server is my private Web server,” Yale Kozinski told The New York Times. “It’s owned by me. The domain is registered to me. The people who have access to put files up there are friends and family.”

Kozinski’s website was, by far, not all porn and music—and the porn was mostly of the humorous or human oddity variety, as is the music by Weird Al Yankovic. The site included lots of humor—written, video and photograph—as well as articles and stories written by and about Kozinski.

But the bigger question likely concerns access to those files for downloading rather than uploading. The ABA Journal searched in Google for “alex.kozinski.com” and “mp3” several weeks ago and found file-sharing websites with links to music on Kozinski’s website.

A lawyer who works for the recording industry—and who would not speak for attribution criticizing a federal appellate judge in a matter like this—says that it doesn’t matter how difficult the route to the files, as long as they are accessible by the public for sharing, it is problematic legally.

Lawrence Lessig, the Stanford Law School professor and leading expert in cyberlaw, disagrees with that characterization of the law. He is a proponent of being able to move copyrighted files from place to place as Kozinski may have been doing.

“The real distinction a court would draw is whether someone made it available for public distribution or as way to make it easier to get in private distribution," Lessig says.

"Somebody could hack around the intended use, and it wouldn’t change legally any more than if I had collection of physical CDs in my house with the door unlocked and someone came in and stole them,” he explains. “From what has been described, it doesn’t sound like [Kozinski] is in the business of distributing music; he’s making access to music he has the right of access to. I’d hesitate to jump to the conclusion the he’s engaging in activity that might be prosecutable or violate any copyright.”

Indeed, some courts have recently wrestled with the question of whether making copyrighted files available is the same as distributing them. And recent decisions in pretrial matters have gone against the industry. See, for example, a decision in March in Elektra Entertainment Group v. Denise Barker, 05-cv-7340, in the U.S. Southern District of New York.

Yale Kozinski’s assumption of blame is disputed by Cyrus Sanai, the lawyer who tipped news reporters to the contents of Kozinski’s website. Sanai and Kozinski had once dueled in print, in a legal newspaper, over a legal issue and when Kozinski personalized it in rebuttal, Sanai filed a formal complaint with the 9th Circuit.

“Judge Kozinski is a skilled amateur with computers, and he controlled that subdomain,” says Sanai, who has some computer expertise and last December downloaded almost every file on the site before it crashed, he says, with an error message saying “bandwidth exceeded”—meaning Kozinski’s Internet service did not provide for so much volume in such a short period of time.

Sanai has kept all those files and says they will form the basis of yet a third formal complaint—not all concerning porn—against Kozinski he intends to file soon with the 9th Circuit.

Kozinski is not new to controversy over porn and music files being downloaded from the Internet.

He had taken the lead in 2000 to thwart an effort by the Administrative Office of the U.S. Courts to monitor Internet usage by judges and their staff because so much of it was nonbusiness related—a lot of it porn and music. In 2001, he entered the computer room at the 9th Circuit and personally disabled Internet filters for the 8th, 9th and 10th Circuits, according to a letter to the Judicial Conference (PDF) last October from Ralph Mecham, who retired as director of the AO in 2006.

At the time, Mecham had crossed swords with Kozinski on the issue and lost, and Chief Justice William H. Rehnquist had said: “Tell Alex to watch pornography at home and not download and watch it in the courts.”

A 9th Circuit study of Internet traffic for the three circuits during a single month in 1998 indicated that at least 90,000 adult websites had been visited using courthouse computers, but noted that the actual numbers could be 10 to 25 percent higher. Such usage had increased significantly by 2000, the AO later reported.

In the wake of this week’s revelations, Kozinski himself asked that the 9th Circuit Judicial Council initiate an investigation of the issues raised in the Los Angeles Times article and to transfer the proceeding to another circuit’s judicial council.

This comes at a time when Congress and in turn the U.S. Judicial Conference have been ramping up both rules and enforcement for handling complaints of judicial misconduct. In April, the Judicial Conference implemented the first nationwide binding rules for all circuits in response to shortcomings in what has been a decentralized system for handling complaints about judicial misconduct.

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