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

Legal Ethics

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

Posted Jun 13, 2008, 01:46 pm CST
By Terry Carter

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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Posted by J.L. Anderson - 5 months, 2 weeks, 4 days, 5 hours, 7 minutes ago

It is increasingly difficult to get intelligent, capable lawyers to serve on the federal judiciary. Cases like this one, where a disgruntled litigant is able to rummage through a private file-server and embarrass a judge publicly, will surely not help and I would hope the ABA would not be a party to story worthy of the National Enquirer. Judge Kozinski is a brililant jurist, who has staunchly and tirelessly defended individual rights. These files, which were not illegal, were intended to be private, shared only by friends and family. We should leave them that way.
Posted by Stuart Friedman - 5 months, 2 weeks, 4 days, 3 hours, 19 minutes ago

As a state-court trial judge in Ohio, I have enjoyed sparring with Judge Kosinski via e-mail on a host of substantive, procedural, and social issues over the past several years. Our frequent disagreements have consistently forced me to sharpen my own thinking. Moreover, as an outspoken defender of individual rights and the independence of the judiciary, Judge Kosinski has few equals today.
Perhaps the current flap over Judge Kosinski’s website has less to do with the content of that website than with the opportunity it has given lesser lights to gloat over the misfortunes of a man whose accomplishments—and whose ego—are both of epic proportions.
I concur with J.L. Anderson’s posting: assuming that the files were intended to be private, to be shared only by friends and family, then what was done should fall into the realm of personal embarrassment only. Inasmuch as the files appear to have been outed by an individual in furtherance of a personal grudge, then neither the ABA nor the legal community should further dignify this incident—leave that to talk radio and bloggers with nothing better to do.
Posted by Ralph Adam Fine - 5 months, 2 weeks, 3 days, 17 hours, 51 minutes ago

JL Anderson said it with succinct clarity: “Judge Kozinski is a brilliant jurist, who has staunchly and tirelessly defended individual rights.“ I agree, and more. Alex Kozinski is the very paradigm of the great judge—insightful, fearless, caring, and knowledgeable. Our system of justice, the keystone of our freedoms (social, economic, and political), depends on neutral-principled judges steeped in the great traditions of our common law who will call it as they see it. Alex Kozinski is that kind of judge; he is the very best of our profession.
Posted by San Diego Anonymous - 5 months, 2 weeks, 3 days, 5 hours, 51 minutes ago

How typically out of touch with mainline society you lawyers and judges are. The Ninth Circuit. already the laughingstock of the federal judiciary, is now being led by a judge who maintains flagrantly offensive material on a web site bearing his name. And three of you—including s fellow judge—find that just okay. Is it any wonder why the general public has such a low opinion of your profession? Kozinski probably can’t be impeached for his flagrant bad judgment, but the judges of the Ninth Circuit should certainly remove him as Chief if he won’t step down on his own. He has unquestionably done more damage to the reputation of his cicuit. A final observation: Kozinski has often displayed arrogance and meanspiritedness in his dealings with lawyers. I personally witnessed him usurp the entire alloted oral argument time of a lawyer chatising him about a form error in a brief. For many lawyers who have felt the whip of his acid tongue, this incident represents karma.
Posted by Caree Annette Harper - 5 months, 2 weeks, 3 days, 3 hours, 16 minutes ago

How cowardly you are to criticize a man then shield yourself from judgment with the words “San Diego Anonymous”. A brilliant judge’s reputation is being tarnished as we type! I’m angry that no matter how much good someone does, we are still in a world that defines people by the scandal! The Judge is a MAN with his own sense of humor-so what! He didn’t say or do anything sexist, or biased in open court. I tried a 1983 case in front of Judge Kozinski a couple of years ago and marvelled at his wit, thoughtfulness and brilliance. I am a Democratic Black female civil rights attorney, so I would NOT take time to defend a conservative Reagan appointee if I did not feel truly compelled to do so. We all know that we have ALL sinned and fallen short… And I don’t care who you are-if anyone looks close enough at you, Cyrus Sanai or I, there are skeltons in ALL OF OUR CLOSETS! Leave this Judge alone. He is a fair and brilliant man. Who cares if the server was password protected or not. The last time I checked the Penal Code or the rules on judicial conduct, not having a password protected server was not a violation. What he is really “guilty” of is not lieing to the LA Times reporter, right?? Because we want our judges and politicians, and Presidents to lie to us right? Instead, he was honest. God forbid a judge have a sense of humor and be honest. So the judge has a life, and like a lot of guys he shares jokes with friends and family essentially in PRIVATE. The Judge did/does NOT have any offensive materials in his chambers or in his courtroom, nor does he allow anyone to be demeaned in his courtroom (unlike some federal judges-male and female alike) Quite to the contrary, I witnessed the judge call a male attorney on the carpet for the demeaning tone in which he used with his female co-counsel.
Posted by Kenneth L. Karst - 5 months, 2 weeks, 3 days, 2 hours, 43 minutes ago

(If this be a repeat sending, please chalk it up to a protracted senior moment.)

I write in sadness about some of the characterizations here of Alex Kozinski , ranging from calling him mean-spirited to hinting that he is a porn addict. I have known Alex since he was a student in my class on Federal Courts. I have kept in touch with him ever since, from his days as a clerk to Chief Justice Burger to his days of serving with distnctiion on the Ninth Circuit. We have often disagreed on matters of constitutional law, but I know him to be a superb judge and—more to the point here—a decent and generous human being. He and I also differ in our definitions of humor: where he might think me stodgy, I think of him as quirky. He was, indeed, careless in keeping vulgar material in his server file where it could be retrieved by any computer-savvy visitor, even someone who might want to “get” him. But, as to quirkiness, and as to carelessness, let him who is without sin cast the first stone.
Posted by JL Strait - 5 months, 2 weeks, 21 hours, 8 minutes ago

Since this issue surfaced, I have been disheartened on many levels. I consider myself fortunate to know Alex Kozinski. He is an incredibly open person, astonishingly intelligent, and possesses abundant intellectual curiosity—traits that make him willing to engage in discourse about any number of ideas and develop relationships with individuals from varied and unique backgrounds. I was dismayed at the swiftness of attack on this respected jurist at the first hint of blood in the water before allowing any of the facts to surface. While it is difficult to separate fact from fiction in the news anymore, it would seem that the offending information was not exactly the
outrageous obscenity first alluded to, but rather humor files of questionable taste, the descriptions of which sound not unlike items posted on publicly-accessible sites and widely circulated over email. This material was not located on a work computer, but obtained through efforts that amounted to essentially hacking into a personal server. While individuals may disagree over the form or appropriateness of the humor on a social level, this was not illegal. I was also appalled by this invasion of privacy. True to form, however, Judge Kozinski’s response was not to deny
the material, but acknowledge it and invite investigation. As suggested above, individuals should be careful how they choose to cast dispersions. In this email and computer age, how many can say they have never received an email or link that may be considered irreverent by some? My guess is probably not many.
Posted by Ward Mundy - 5 months, 2 weeks, 2 hours, 54 minutes ago

Having worked in the federal courts for over three decades, it’s always disappointing when an individual that should know better discloses what purports to be a confidential internal judiciary memorandum (albeit unsigned with no signature block) in order to even an old score. I’m, of course, referring to the memorandum you claim was written by Ralph Mecham that is reproduced in your article. In that memo, the author accused Judge Kozinski of criminal conduct numerous times then laments that the Executive Committee of the Judicial Conference of the United States apparently didn’t buy the story. I wonder why? And the two corroborating witnesses, former Chief Justice Rehnquist and District Judge Edwin Nelson, have both died. How convenient!

Suffice it to say, federal judges don’t sit around all day watching porno movies in their chambers. Nor do their law clerks. And, having known many former members of the Executive Committee, I can tell you that, if the story spun in the letter were in fact true, there would have been no hesitation in doing whatever was necessary to remove Judge Kozinski from the bench. I also suspect that, if the Chief Justice made the comment that ‘Alex should watch his porn at home,‘ it was probably in jest to put a stop to Ralph Mecham’s whining.

My recollection is that there was concern from some quarters about criminal behavior surrounding the 2001 events described in the memorandum, but it most certainly was not aimed at the actions of Judge Kozinski in protecting his court from surreptitious wiretapping by some of Mecham’s Washington bureaucrats.

To now reprint a very lopsided recollection of the events without any semblance of balance merely to bring down Judge Kozinski is nothing short of irresponsible. Of all the organizations that should know better, one would have hoped the ABA would be near the top of the list.
Posted by Rabbi Yitzchok Adlerstein - 5 months, 1 week, 5 days, 23 hours, 52 minutes ago

I teach Jewish Law at Loyola Law School. From time to time, Alex will call about a point of Jewish law for some paper he’s working on. His fierce sense of autonomy (which is why he is both a libertarian and hugely invested in civil liberties) clashes somewhat with my personal religious preferences as an Orthodox rabbi. We share, despite the differences, an elevated regard for the value of law. He comes close to worshipping it, and applies Talmudic scrutiny to its every dictate. Which brings us to the core point: Alex loves law, and despises all rules outside of the law. He great regard for what the law demands, and little regard for restrictions and limitations imposed outside of it. He is no lecher. His appreciation of ribald jokes (which I do not share; he is so much of a mentsh, however that he would warn members of his private email list if an incoming joke was somewhat prurient so they could delete it unopened) stems from the fact that they push the envelope, and he enjoys that especially if the joke displays some cleverness. He will not let convention or popular expectation dictate to him but he does not tamper with the law. We will let the special panel decide on the legal matters, but insofar as intent is a factor, it will become clear that Alex could not an would not knowingly tolerate anything under his control violating the law.

People who have faced Alex Kozinski in the courtroom where he can reduce anyone of lesser intellectual stature to quaking jello do not always know the Alex Kozinski outside, who is incredibly generous and refined. Alex is a good-hearted soul who celebrates the law, intellect, and human individuality.

Alex is the kind of person who not only freely lent his vacation condo to externs and casual acquaintances, but prepared a thirty page user’s manual so people wouldn’t get flustered as they tried to wrestle with a temperamental spa cover or guide the boat back to its mooring. He always left weeks of provisions on hand for guests. His first-person account of agonizing over a decision whether to grant a stay of execution for a California prisoner is ample testimony to his humanity.

Any besmirching of his reputation will be a tragic loss to the citizens under the umbrella of the Ninth Circuit, and to all who value the gift of tight, rigorous thinking applied to the law that makes society possible.
Posted by Lloyd Shugart - 5 months, 1 week, 4 days, 22 hours, 46 minutes ago

Is this issue the change in morality of society? When Thomas Jefferson penned the constitution, his belief was that most were moral, and the laws should address the same.<br.

To be shunned by the members of your society was at that time, a punishment that most respected. There was a need for law & punishment(public flogging in the square stockade) to effectively deal with those who lacked morals, and respect of others properties.

In this day and age of Free-riding, society loses.

First I am not deluded in belief that morals equals manners or the vise versa. Nor do I believe that ones own morals should be the rule of others. My family http://studio413.blogspot.com were staunch abolitionist at the dawn of this great country. They had different ideas about many issues confronting society then, yet they only sought to empress their ideas around freedoms due all of man, certainly not implicating that all should live as they did, in all ways.

That being said , I believe as they did. Yet as Mr. Jefferson recognized you can’t legislate your own morals, and that morals are not in fact just ones own, but are those that the benefit the greater society.

I feel that there is a growing disrespect for people and their properties, and the idealism that if you don’t (opt-out of public domain) lock it away, that society at large is welcome to take as they please.

I believe in the Public Domain, and in fair use….I don’t believe in stretching those in ways that congress never intended, in either direction.

For those whom advocate a free everything on the net…this may just be the issue that brings Judicial Notice, to why it’s wrong for society.

I am just sorry that the Honorable Judge Kozinski, especially his wife, and family have to become victims, of something so patently wrong with society. Hope that one day you never find yourself in front of the Public, having to attend to such.

Morals http://williampatry.blogspot.com/2008/06/gender-and-copyright.html
Posted by Gary Waymer - 5 months, 1 week, 4 days, 4 hours, 22 minutes ago

The “circle the wagons” phenomenon is in full force here. Are women supposed to believe their cases will be fairly heard by a fellow who maintains naked images of them painted like cows, with their genitalia prominently displayed? And I suppose all the posters (except the rabbi and the apparent non-lawyer) are cracking up over the image of the fellow contorting his body to perform fellatio on himself? Oh yea, I almost forgot; Alex “accidentally” uploaded those images. No wait, I mean his son did it. You know, his son “Alex, Jr.“ Oh, that’s right, his son’s name is Yale.But the images were maintained on a web site with the domain name alexkozinski.com., not yalekozinski.com. The good judge’s explanations for retaining this material on his web site seem to change by the minute. And, the tactic of blaming his son and others for maintaining the objectionable material on the judge’s computer—at his home where his son Yale does not reside—is not very persuasive. If, as the rabbi tells us, the Judge is a guy with a type A personality who prepares 30-page manuals on how to use his guest condo, one can reasonably conclude he also occasionally canvassed the web site bearing his name.

Don’t get me wrong; Kozinski has the right to look at what he wants on the internet. But doesn’t his decision to uploiad or retain material of the type described above say something about his view of the world? The Senate spends an inordinate amount of time investigating and scrutinizing every aspect of a federal judicial nominee’s life trying to glean the nominee’s real values. The ABA historically participates in the process. What’s missing from the discussion here are the expected expressions of concern about Kozinski’s real values, given the few offensive tidbits we know were on his web site?

Sorry, but I won’t join the herd in reflexively giving Kozinski a pass here. His explanations have been inconsistent and flimsy, and the images he chose to maintain and view informs my opinion of what his real values are. Among the questions the investigation of Kozinski should resolve are these: (1) Which images did the judge, himself, upload—accidentally or otherwise?; (2) Which images on alexkozinski.com did the judge view and take no action to remove?; (3) Why didn’t he mention his son was responsible for the material when he was first asked to explain the presence of offensive material on the website?; (4) Was the obscenity case he was presiding over truly randomly assigned to him, or did the judge specially seek it out?; (5) What is humorous, in the judge’s opinion, about the depiction of naked women painted as cows, posed in a mounting position?; (6) Do any of the standards Judge Kozinski relied on in castigating District Judge Manny Real apply to the present situation?

We lawyers compromise our moral and ethical authority when we are not objective about one of our own. I fear that is happening here.
Posted by Hugh Janus - 5 months, 1 week, 3 days, 11 hours, 25 minutes ago

Flying under the search engine radar is something most of us with real names have difficulty achieving, Gary. But, at least in my copy of the Constitution, there’s no requirement that federal judges pass an annual audit on political correctness much less a witch hunt to figure out which naked pictures or Internet jokes are their favorites. You’re obviously not too crazy about how the family named their kid either, Gary?

Let’s keep the focus on what the Constitution requires and not what you’d love to read about the Kozinski’s in Star Magazine. What the Senate may consider in reviewing the background of an individual nominated for a judgeship BEFORE consenting to an appointment and what it takes to remove a federal judge from office AFTER appointment are utterly different. Oops, sorry.

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