Following up on my previous post about the dispute between attorney Cyrus Sanai and Judge Alex Kozinski:
Sanai told me that he filed a complaint alleging misconduct by Kozinski for commenting on a pending case — Sanai’s petition for rehearing en banc of a legal issue related to his parents’ divorce. Sanai also complained that Kozinski had put materials related to the case on Kozinski’s web site. This, Kozinski clearly did. Howard Bashman has preserved Kozinski’s piece about Sanai. It purports to link a .pdf critical of Sanai. You can see the link by right-clicking the hyperlink in Kozinski’s piece that says “(read the PDF)” and checking “properties.” It goes to this link: http://alex.kozinski.com/judge.thibodeau.pdf.
When the Ninth Circuit’s Judicial Council finally ruled on Sanai’s complaint, it was in this order. It found no misconduct on the unnamed judge’s part, but noted that the judge had nevertheless apologized for any appearance of impropriety.
Sanai says he was surprised to see this language in the order:
A limited inquiry was conducted pursuant to 28 U.S.C. section 352(a), but found no posting of complainant’s case-related information on any website maintained by the judge.
Sanai researched the issue online. He claims that his research, using the Wayback Machine and search engine caches, revealed that the web site had been taken down months earlier. Weeks after the Judicial Council’s order was issued, Sanai says, the site came back up.
Sanai concluded that Kozinski had been trying to hide something from the Judicial Council by taking down the site, and decided he wanted to find out what that was. When Sanai ran a Google search plugging the name of Kozinski’s site into the search engine, hits came back to .mp3 sharing sites, saying that songs like Monty Python’s “Lumberjack” song could be downloaded at URLs located in a subdirectory of Kozinski’s site: http://alex.kozinski.com/stuff. This is the subdirectory that had the porn.
Sanai believes that Kozinski was actively sharing these files. As I wrote in my post from earlier this morning:
Judge Kozinski’s site had many .mp3 music files. If you do a Google search for http://alex.kozinski.com, page 2 of the results gives you this page. It includes a link to a site that shares .mp3 files, and which refers to the alex.kozinski.com/stuff subdirectory for a download of a Monty Python song. Mr. Sanai maintains that this, together with other evidence, is an indication that Judge Kozinski was sharing .mp3 files.
Sanai believes that Kozinski’s sharing of files indicates hypocrisy on Kozinski’s part, because of the position he took in the dissent in this case (starting at page 7864), arguing that credit card companies should be liable for copyright infringement if they facilitate the infringement.
This, as I have previously suggested, is where Kozinski may end up being vulnerable. The porn, titillating as it is, is really a secondary issue. If he was file-sharing .mp3s, after having taken a hardline position against infringers in judicial opinions, it could expose him to charges of hypocrisy.