Derek Khanna's Favorite Techdirt Posts Of The Week

from the the-civil-liberties-edition dept

It's a pleasure to write about my favorite Techdirt posts of the week. I have been a longtime fan of Techdirt and can attest that the small tech literate crowd (yes it exists) on Capitol Hill are also avid readers. I was the Capitol Hill staffer who worked for House Republicans and authored the report on copyright reform (Techdirt article). As of January 6, 2013, I no longer work on Capitol Hill but am still involved in many technology issues, currently spearheading some of the advocacy on unlocking cellphones.

Techdirt was quite a resource when we were fighting SOPA -- at the time I worked for Senator Scott Brown who came out against SOPA and Techdirt provided timely and accessible commentary on SOPA and other technology issues. Near the beginning of that fight, when it was called COICA, the content industry came to visit us with Senator Scott Brown and it was presented to us for the first time. They presented it as a relatively simple bill that that would, ". . .end online piracy by blocking the URL." My response at the time was, "Wait at the DNS level? But can't you just type in the IP address?" Immediately, it was clear that this legislation was highly problematic as it would amount to censorship and that it would be extremely ineffective. At the time, I wrote a 20 page internal memo for our office on how terrible COICA was. In my research at the very beginning, there were few articles on this topic, but Techdirt had a number of valuable resources even when it was COICA before it became SOPA/PIPA. This timeliness was critical, and I'm not the only one who has used Techdirt as such as resource.

It's a common -- and unfortunately effective -- tactic in Washington, DC to make an issue seem more complicated than it is to intimidate dissenting voices. This is particularly true on intellectual property laws. While there is surely complexity in IP issues, complexity for complexity's sake is not productive, and I appreciate that Techdirt can take complicated and even academic arguments and distill them to an audience who may not have time to read the literature in depth -- but may be presented with some of these arguments for the first time.

So with that, I will turn to the stories of the week. This week Techdirt continues to detail how some of our laws affecting technology have run amok impairing both the market and our civil liberties.

First, Masnick's piece on unlocking cellphones, now being presumably illegal, was spot on, and his further coverage of the ongoing advocacy movement to reverse this situation was a great read. This is an issue that I'm personally involved with as I wrote the major article on this issue over at the Atlantic and the petition creator and I wrote a follow-up article detailing how his company was shut down as a result of unlocking cellphones becoming illegal.

Masnick rightfully explains that, "While the reasoning for not renewing the exemption was that many carriers now allow unlocking anyway, that's not true across the board, and there are plenty of limitations. Just the fact that you need to ask permission to do what you want with a device you legally purchased and own should be troubling enough." Many people appear to agree.

The petition we have been spearheading now has over 69,000 signatures but will need Techdirt readers help to get over 100,000. This is a clearly an issue that has engaged a lot of people who believe in basic property rights and that they should be able to unlock their own cellphones. The first piece in the Atlantic got over a million hits and was number 1 on Reddit.

Techdirt also detailed Public Knowledge's submitted question on this issue for President Obama's Hangout yesterday. Despite being the 8th most popular question it was not asked (however, bloggers found time to ask President Obama to help name their child).

Like other articles by Techdirt this week -- such as the piece on the DMCA being used to impair mechanics repairing your car -- the unlocking issue highlights how while the DMCA was created and passed to safeguard copyright it has been used for radically divergent purposes. It should not be entirely surprising that the DMCA may need revisions and oversight. The DMCA was passed three years before the iPod, six years before Google Books and nine years before the Kindle. But now that it's clear that the DMCA is being interpreted in a way clearly contrary for which it was passed, its incumbent upon Congress to act. My article explains: "Congress's inaction in the face of the decision by the Librarian of Congress represents a dereliction of duty. It should pass a new law codifying that adaptive technology for the blind, backing up DVD's to your computer, and unlocking and jail breaking your phone are lawful activities regardless of the decisions of the Librarian of Congress."

If you agree, I hope you will also sign the petition and get us over 100,000.

Second, I'm going to have to slightly break the rules of posts of the week and suggest that everyone watch the Copyright Explained PandoHouse Rock video -- which is pretty terrific but technically was from last Friday.

Third, the piece on the impact of the three strikes law in France: Three Strikes May Decrease File Sharing, But if Sales Keep Dropping, Who Cares. It details how, "The latest data out of France shows that, despite Hadopi (the administrators of the 3 strikes program) claiming some sort of victory because stats on file sharing are down, the bigger issue is that the sale of recorded music keeps declining."

This piece is particularly fascinating, because inside the Beltway the threat of piracy is often used as the problem requiring invasive solutions. The argument goes, rampant piracy causes content industries to lose lots of money, therefore we have to restrict individual freedom with x or extend copyright even further, etc. I personally have problems with this argument, but the data from France demonstrates how even with file sharing declining, it isn't solving the content industry's problem. It will be fascinating to see if this data is consistent with data in other countries as well.

Fourth, Masnick's newest piece on border searches is a bit scary: Homeland Security: Not Searching Your Laptop Doesn't Benefit Your Civil Liberties, So We Can Do It. Because of how crazy many laws are in application to modern technology, many of us are accidentally committing relatively trivial violations of the law on a regular basis. In a world where all of our technology can be searched at the border this should be disturbing. For example, some courts have held that simply violating the terms of service on a website is a violation of the law, and of course we have all likely done that (until recently ToS at Google prohibited minors from using Google). Today unlocking your phone and jailbreaking an iPad are illegal. In a world where most average Americans have violated these and other laws, and our laptops, phones and tablets have "evidence of these violations" and are searchable without reasonable suspicion because we are crossing the border, that's a precarious place to be. And it doesn't seem to advance any form of national security benefit either as the searches are not limited in scope. The statement that Masnick highlighted by the DHS is particularly troubling:
"We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits."
Believing that there is no benefit for our civil liberties by requiring reasonable suspicion is truly dangerous thinking. In a world where transfer speeds continue to increase, with no reasonable suspicion requirement, what would stop the government from a dragnet that backs-up and searches the files of every device that crosses the border? It'd be interesting to see, if your device is searched in this manner and it's encrypted, if you could be required to provide the encryption key -- which is a major ongoing legal issue but in a different context in border searches.

Overall a terrific week of timely and insightful coverage. And I didn't get to mention coverage on CISPA's expected reintroduction and the Cyber Executive Order. As for me, I'm going to be continuing to advocate for sensible changes in technology policy. Feel free to follow me @Dkhanna11.


Reader Comments (rss)

(Flattened / Threaded)

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    Anonymous Coward, Feb 16th, 2013 @ 12:25pm

    The Kool-Aid is strong with this one.

     

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    That Anonymous Coward (profile), Feb 16th, 2013 @ 12:51pm

    One wonders what they make of some of our regulars on the hill...
    That and you have to wonder which intern is behind bob...

     

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    gorehound (profile), Feb 16th, 2013 @ 1:30pm

    Derek is a pretty intelligent man.He does actually know what he is talking about.

     

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    Anonymous Coward, Feb 16th, 2013 @ 4:12pm

    I was the Capitol Hill staffer who worked for House Republicans

    and how did that work out for you ???

     

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    Anonymous Coward, Feb 16th, 2013 @ 5:41pm

    Hello Derek, nice to see you back.

    First allow me to thank you for the piece you put out that got you fired. It needed to be said. It needed exposure that no where in all this is public domain issues being considered as the opposite side of the maximilists. Thank you for being honest and accurate in a place most of us don't expect that to come from.

    A ton of respect to you over the way you've handled the fallout in public too. Very mature of you.

     

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    Anonymous Coward, Feb 16th, 2013 @ 6:05pm

    Thank you Derek for your memo supportibg CISPA.

     

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    Ron, Feb 16th, 2013 @ 8:51pm

    I emailed you with my support and respect. Just so you know, you still have it. Keep up the good work, Buddy!!

     

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    Anonymous Coward, Feb 17th, 2013 @ 1:33am

    To Congress:

    Dear representatives (LoL)

    In the next elections to maximize donations start talking about copyright abolition. This is sure to grab peoples attention and with some luck some funds.

     

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    Anonymous Coward, Feb 17th, 2013 @ 2:23am

    I was performing some important research online regarding funny things, and this blog post came up in my Apple Newsreader, for some reason in my feed of "Current Events Affecting The Synagogue".

    In any situation, these are great posts and comments. However, I also found a place to purchase T-Shirts at a reasonable price- only $6.00. New shirts arrive daily. The site is called http://6dollarshirts.com/

    They are very inexpensive in comparison to the NBC Experience store in Manhattan area. On FourSquare, you get a discount for NBC T-Shirts, which don't change often, at a price of $44.00 for two; with a FourSquare Discount.

    Oy vey!

     

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      That Anonymous Coward (profile), Feb 17th, 2013 @ 9:54am

      Re:

      That is very nice Mr. Moskowitz. Its bad enough you use GoDaddy, you should stop spamming. While you decided to protect your whois with domains by proxy you really would be surprised at the footprints you leave behind.
      Would anyone in Gainesville like to swing by and ask these people to stop spamming their t-shirts across the web?
      I suppose it might be easier to just post that tongues of glass tripe to their twitter account and let the comedy ensue.
      https://twitter.com/6dollarshirts

       

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        art guerrilla (profile), Feb 18th, 2013 @ 9:36am

        Re: Re:

        heh, i live in the greater gainesville metropolitan area, who is it you want me to kneecap, again ? ? ?

        um, do i get a tee shirt ?
        hee hee hee
        ho ho ho
        ha ha ha
        ak ak ak

        art guerrilla
        aka ann archy
        eof

         

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        Anonymous Coward, Feb 18th, 2013 @ 8:53pm

        Re: Re:

        LOL! I greatly enjoy writing posts that confuse people into thinking is spam. It's actually a joke. Sorry if I'm the only one left laughing.

         

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    Anonymous Coward, Feb 17th, 2013 @ 7:25am

    44444

     

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    Anonymous Coward, Feb 17th, 2013 @ 10:32am

    Immediately, it was clear that this legislation was highly problematic as it would amount to censorship and that it would be extremely ineffective.

    The term "censorship" was bandied about by SOPA opponents, and yet precisely why this was deemed so was not articulated in any way I would deem an impartial analysis. Perhaps you may care to elaborate.

     

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      Rikuo (profile), Feb 17th, 2013 @ 11:40am

      Re:

      "The term "censorship" was bandied about by SOPA opponents, and yet precisely why this was deemed so was not articulated in any way I would deem an impartial analysis."

      That statement is as false as saying a standard human has three arms and four heads.

      It's censorship because plenty of speech, whether copyright or not, would have been taken down without letting the owners/operators of those websites have their say in court. The DMCA is already abused to do this: there have been countless examples of clear out and out legal speech being taken down because someone claims copyright, without that claim being tested. Political ads, reviewers, awards shows.

      This was explained countless times by SOPA opponents. I would like to know just what an impartial opponent of SOPA is defined as.

       

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      Leigh Beadon (profile), Feb 17th, 2013 @ 1:25pm

      Re:

      The term "censorship" was bandied about by SOPA opponents, and yet precisely why this was deemed so was not articulated in any way I would deem an impartial analysis. Perhaps you may care to elaborate.

      There are essentially three ways to use the term "censorship", with different specificities of meaning.

      The simplest is the basic term, used casually -- this refers to any time any expression is stopped for any reason, legitimate or otherwise, in any context. This is the way it is used when people accuse us of censorship for collapsing reported comments, for example, or the way someone might use it in casual conversation -- "I was going to say that but I censored myself"

      In a political or legal discussion, it gains (at minimum) a context of censorship by the government, directly or indirectly, but it can still be considered legitimate or illegitimate, and that's generally open for debate. In this context, you've got things like libel and defamation laws — technically a form of censorship (blocked expression) but one that is widely if not universally considered reasonable. Then you've also got things like FCC rules for language and sexual content, which are hotly debated as to whether they are right or wrong, but where the term "censor" itself is often neutral -- "should we or should we not censor bad language".

      Finally, you've got "censorship" as a somewhat-subjective term that is an extension of the previous version -- as in, used in a context where it is implicitly clear that the user deems this unreasonable censorship. Naturally that is open for debate, as are most things. In the case of SOPA, you're surely aware of the many reasons offered for why it constitutes unreasonable censorship -- even under existing laws, there are multiple examples of completely legitimate and protected expression being taken down or blocked alongside infringing material, often because of ridiculous accidents and a total lack of oversight.

      It's impossible to deny that SOPA-like provisions would lead to some amount of protected expression being blocked, both directly and via chilling effects — but in fairness, the same is true to some differing degree of every law that intersects forms of expression, including defamation and libel laws, which (if we go back to the neutral use of the term) are mostly forms of good censorship that also cause some amount of collateral bad censorship.

      The argument of those of us who oppose SOPA is that, unlike those examples, the SOPA provisions would cause unacceptable levels of collateral bad censorship, and would have only a negligible effect in terms of good censorship (blocking pirated content). Perhaps we are wrong to simply use the word "censorship" without qualifying it in this way, but the fact is that this is implied, and the core meaning is clear -- so you then have a choice to make: you can respond to the thorough and oft-repeated arguments about the collateral damage that SOPA would cause to legitimate expression, and whether that damage (whatever you want to call it) is acceptable, or you can focus on arguing about a single 10-letter word and whether or not it's appropriate.

       

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        Anonymous Coward, Feb 17th, 2013 @ 2:39pm

        Re: Re:

        Censorship in the First Amendment context means suppressing speech because of the ideas being expressed. In that regard, the censorship on TD is far worse than SOPA. With SOPA, no speech is suppressed because of the ideas expressed therein, but on TD, speech is suppressed by "reporting" it by those who disagree with the ideas being expressed.

         

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          Anonymous Coward, Feb 17th, 2013 @ 3:01pm

          Re: Re: Re:

          And what happens? Are those comments removed? No. Even the comments dissing Mike Masnick are allowed to stay. They might be "flagged by the community" and you might have to "click to view" (depending on certain factors), but there they are. The comments themselves, no matter how controversial, are not removed or altered in any way. If you have evidence that speech is truly being suppressed here, please give us some examples.

           

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            Anonymous Coward, Feb 17th, 2013 @ 3:07pm

            Re: Re: Re: Re:

            The whole point of reporting them is to remove them from view, thereby suppressing them. Yes, they can still be accessed by an additional click. But that doesn't mean that they are not removed from view.

             

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              Anonymous Coward, Feb 17th, 2013 @ 3:26pm

              Re: Re: Re: Re: Re:

              So under SOPA, would you have been able to bring back websites with a single click?

               

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                Anonymous Coward, Feb 17th, 2013 @ 3:46pm

                Re: Re: Re: Re: Re: Re:

                "So under SOPA, would you have been able to bring back websites with a single click?"

                It's not an issue of how difficult it is to access the suppressed speech. It's censorship when the speech is suppressed because of a disagreement with the ideas being expressed. That's why the "reporting" on TD is censorship. When a domain name is seized, the seizure is not for the purpose of suppressing speech because of the ideas being expressed. This is why domain names can be seized upon mere probable cause and a warrant. It's not censorship even if it's very difficult to access the speech after the domain name is seized, and the First Amendment is not violated. But if the government got in the business doing what the TD "reporting" button does, that is, suppressing unpopular speech and making it more difficult to access because of a disagreement with the ideas being expressed, then that would be censorship and the First Amendment would be violated. See the difference? What happens on TD would violate the First Amendment if done by the government. What SOPA would have done would not.

                 

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                  Modplan (profile), Feb 17th, 2013 @ 4:21pm

                  Re: Re: Re: Re: Re: Re: Re:

                  It's not an issue of how difficult it is to access the suppressed speech.

                  By definition, censorship is about how difficult it is to access or to make certain kinds of speech. The act of censoring something is about making it more difficult to express or to see the expression of certain things.

                  When a domain name is seized, the seizure is not for the purpose of suppressing speech because of the ideas being expressed.


                  So you're saying every use of a DMCA notice, for example, is clearly not censorship and is justified because it is not for the purposes of suppressing certain ideas?

                  All you're doing is making the argument that because we used x legal/technological tool that is about stopping copyright infringement to block access to something, then it can never be unconstitutional.

                   

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                    Anonymous Coward, Feb 17th, 2013 @ 5:30pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    If the DMCA notice is sent for the legitimate purpose it's intended for, then no it's not censorship since it's not suppressing speech BECAUSE OF the ideas expressed.

                     

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                      Anonymous Coward, Feb 18th, 2013 @ 3:08am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      I still fail to see why distributors get access to the copyrights of songs, movies, etc, when they don't sing the songs/make the movies, but they still get access to the copyrights.

                      How does that, in any way, make sense?

                       

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                  Anonymous Coward, Feb 17th, 2013 @ 5:00pm

                  Re: Re: Re: Re: Re: Re: Re:

                  So you consider insults and loaded questions to be reasonably expressible ideas, then?

                  You consider statements such as "Mike Masnick just hates it when copyright law is enforced" to be above what you call "censorship"?

                   

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                    Anonymous Coward, Feb 17th, 2013 @ 5:21pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    "Reporting" a post because it's offensive is different than "reporting" it because you don't agree. The latter is censorship more so than the former.

                     

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                      Anonymous Coward, Feb 17th, 2013 @ 6:25pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      So if a post blends both characteristics, what then? Having another point allows you to be as offensive as possible, or lets you repost the same childish demands or rants on various threads regardless of relevance to the actual topic of discussion?

                      Hell, you even posted "The Kool-Aid is strong with this one" at the very top of this thread. What's that if not trolling for responses? What does it contribute to the discussion? This is the sort of thing you're supporting?

                       

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                      Anonymous Coward, Feb 18th, 2013 @ 6:41am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Can you point us to a reported comment that is not derogatory and actually contributes to the conversation?

                       

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                      Leigh Beadon (profile), Feb 18th, 2013 @ 7:59am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      I just recently watched a video of a protester who barged into a conference about some sort of oil/natural gas project, chained himself to some audio equipment, and began shouting prepared statements against the project. As you might expect, they paused things while security removed him.

                      Was he "censored"? Is it wrong for a privately operated forum to choose who can and cannot speak? You seem to be suggesting that, according to the First Amendment, everyone should be legally required to let anyone speak in any forum, private or public. To put it mildly, that's a fundamentally flawed understanding of the individual's freedom of expression.

                       

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          Modplan (profile), Feb 17th, 2013 @ 3:15pm

          Re: Re: Re:

          Censorship in the First Amendment context means suppressing speech because of the ideas being expressed.

          It can also mean the way in which they are expressed, one of those involving uses that can be classed as copyright infringement. That is after all why fair use exists, as copyright can be used to forbid speech because it is expressed a certain way, even if the use of the copyrighted work could be said to do no harm, or the harm in the speech being censored is more than then benefit. So your distinction is a false one.
          In that regard, the censorship on TD is far worse than SOPA. With SOPA, no speech is suppressed because of the ideas expressed therein, but on TD, speech is suppressed by "reporting" it by those who disagree with the ideas being expressed.

          You've convinced me, making you click on something to view a comment that is still easily visible is far worse than attempting to completely remove any access to it, as well as removing any source of funding to the person that said it.

           

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            Anonymous Coward, Feb 17th, 2013 @ 5:29pm

            Re: Re: Re: Re:

            All I'm saying is that as far as suppressing speech BECAUSE of the ideas it contains, TD "reporting" is worse.

             

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              techflaws (profile), Feb 18th, 2013 @ 2:25am

              Re: Re: Re: Re: Re:

              And all we say is you're full of shit and will likely be blocked accordingly. Bummer.

               

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              Anonymous Coward, Feb 18th, 2013 @ 3:10am

              Re: Re: Re: Re: Re:

              How is it worse? I can still see the comment if I click, it's no different than Youtube going "this is spam" or downvoting a comment, or a booru website downvoting comments on the images because people don't like what they see.

              Doesn't make it censorship in the slightest, it's still there. It's only censorship once it's been completely removed by someone other than the poster in question.

               

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          Mike Masnick (profile), Feb 18th, 2013 @ 2:28am

          Re: Re: Re:

          With SOPA, no speech is suppressed because of the ideas expressed therein

          You assume, contrary to widespread experience with other copyright laws (including, but not limited to the DMCA) that no one would make use of SOPA to suppress speech because of the ideas expressed within.

          Why?

          on TD, speech is suppressed

          No, it's not. Putting content that the community votes down one further click away is not "suppression.

           

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            Anonymous Coward, Feb 18th, 2013 @ 11:44am

            Re: Re: Re: Re:

            You assume, contrary to widespread experience with other copyright laws (including, but not limited to the DMCA) that no one would make use of SOPA to suppress speech because of the ideas expressed within.

            Yes, it could be abused just like every single other law could be abused. But when used properly, it's not about suppressing ideas because of disagreement with them.

            No, it's not. Putting content that the community votes down one further click away is not "suppression.

            Of course it is. If the government did the same thing to speech because it disagreed with the ideas being expressed, you and every other internet muckraker would be up in arms about how it was censorship. And you'd be right, because it is censorship. Tell me honestly, Mike. If the government did the same thing, would you think it wasn't censorship?

             

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              Anonymous Coward, Feb 18th, 2013 @ 11:53am

              Re: Re: Re: Re: Re:

              Just for your ignorance, I'm downvoting your comment. It'll still be there even if it gets enough downvotes, but it'll just be flagged.

              You really have no idea what censorship is, do you?

              Downvoted comments that are one click away from being seen? Not censorship. They're still there.

              Video of a baby dancing to a Prince song being taken down by copyright? That's censorship, because you can't just click something to make it come back.

              Your ignorance of stuff like this is truly astounding.

               

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                Anonymous Coward, Feb 18th, 2013 @ 11:55am

                Re: Re: Re: Re: Re: Re:

                Again, if the government did the same thing, it would violate the First Amendment. I'm defining censorship to be the suppression of speech BECAUSE OF disagreement with the ideas being expressed. You may, of course, define it more broadly, but I'm using the definition as found in First Amendment law.

                 

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                  Anonymous Coward, Feb 18th, 2013 @ 11:57am

                  Re: Re: Re: Re: Re: Re: Re:

                  And what's your thoughts on the government using stuff like SOPA, PIPA and ACTA to take websites down?

                   

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                  Anonymous Coward, Feb 18th, 2013 @ 12:12pm

                  Re: Re: Re: Re: Re: Re: Re:

                  It's not being suppressed because people can still read, in tact, what has been said.

                  Then again, you still haven't shown an example a comment that was "suppressed" on Techdirt in lieu of disagreeing with the general idea put forth by any particular article.

                   

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                    Anonymous Coward, Feb 18th, 2013 @ 12:24pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    It's not being suppressed because people can still read, in tact, what has been said.

                    So if the government decided to, say, make all speech on the internet that spoke poorly of President Obama more difficult to access by making users perform an additional click to see it, you don't think that Mike and the EFF and others would go ape shit about it being censorship? I myself would be upset at such censorship.

                     

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                      Anonymous Coward, Feb 18th, 2013 @ 12:36pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      You're skewing your comparisons. If a government run blog made it so you had to click through to see a comment disagreeing with Obama policies, I doubt they'd care... less so if the comment was downranked by Republicans reading the blog, and not by the government.

                       

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                      Leigh Beadon (profile), Feb 18th, 2013 @ 12:43pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      So if the government decided to, say, make all speech on the internet that spoke poorly of President Obama more difficult to access by making users perform an additional click to see it, you don't think that Mike and the EFF and others would go ape shit about it being censorship? I myself would be upset at such censorship.

                      Absolutely! Thank you for highlighting the difference between a severe and widespread government-imposed regulation on the activity of all citizens, and a loose and limited restriction placed on a privately-operated forum by its owners.

                       

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                        Anonymous Coward, Feb 18th, 2013 @ 12:54pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        Absolutely! Thank you for highlighting the difference between a severe and widespread government-imposed regulation on the activity of all citizens, and a loose and limited restriction placed on a privately-operated forum by its owners.

                        It wouldn't have to be "severe and widespread." If the government did it to even one single post on one single website, it would violate the First Amendment.

                         

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                          Anonymous Coward, Feb 18th, 2013 @ 12:56pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          So, what's your thoughts on the Megaupload case or the Djazz1 fiasco?

                           

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                            Anonymous Coward, Feb 18th, 2013 @ 1:07pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            So, what's your thoughts on the Megaupload case or the Djazz1 fiasco?

                            Neither situation involved a violation of the First Amendment.

                             

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                              silverscarcat (profile), Feb 18th, 2013 @ 1:26pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              O rly?

                              you complain about people downvoting your comments, where they can still be seen as a violation of the 1st Amendment...

                              And yet, two websites were taken offline, one permanent, one temporary, by the GOVERNMENT, for copyright violations, isn't infringing on the 1st Amendment?

                              Especially when one was a blog that had plenty of comments on it and one was a website that was allowing artists to distribute their work on their terms.

                              Hmm...

                               

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                          Leigh Beadon (profile), Feb 18th, 2013 @ 1:07pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          Sure, I guess so. Again, key word: the government. You are acting as though you've caught us out on some sort of hypocrisy because we have different standards for private entities and the government -- but nobody is denying that. That's true of plenty of things.

                          By your standards, everyone is a censor and nobody has any right to criticize government censorship of anything. Reddit? Censorship. Community votes push tonnes of links off the site entirely. Twitter? Censorship. Everyone who doesn't retweet my tweets is censoring me. Email? Censorship. Nobody is obligated to "PLEASE FORWARD THIS!" if they don't want to. The Rotary Club? Censorship. I suspect I couldn't just barge in there and give a speech. Newspapers? Censorship. They won't just print anything you send them. TV news? Same deal.

                          Let's consider what happens when you submit a comment to our site. You send a piece of content to our privately owned and operated server, and request that we publish it on our site. That's what happens, automated or not. We have no obligation to publish what you've sent us -- it just so happens that we've chosen to do so by default. But you think it's censorship if we even offer a system for prioritizing/minimizing your content that you asked us to publish, and we obliged. What a strange sense of entitlement you have.

                           

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                      Anonymous Coward, Feb 18th, 2013 @ 12:56pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      So, basically, you'd be upset that you'd have to do extra work to see something, huh?

                      Well, at least you can still SEE it, even if it takes a bit more to do it.

                      Censorship makes it impossible to see something.

                      If it's censored, it's being blocked completely.

                       

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                        Anonymous Coward, Feb 18th, 2013 @ 1:06pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        Censorship makes it impossible to see something.

                        If it's censored, it's being blocked completely.


                        You can certainly define it that way, but the First Amendment is far more protective of speech than that.

                         

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                          Anonymous Coward, Feb 18th, 2013 @ 1:28pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          And yet you're willing to defend the djazz1 and megaupload takedowns...

                          What a strange hypocrite you are.

                           

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                            Anonymous Coward, Feb 18th, 2013 @ 5:06pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            It's not that strange. He began the thread with a generic "Kool-Aid" statement that was clearly trolling for responses, which got blocked.

                            He's mad because he's been caught trolling and now he's trying to make himself out to be the victim.

                             

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                              Anonymous Coward, Feb 18th, 2013 @ 5:23pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              I wasn't even aware that my post was blocked. My only point is that such blocking is in fact censorship, and it's hilarious that the people on TD can't just admit that. Lots of sites censor posts. It's OK to just call it what it is.

                               

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                  Anonymous Coward, Feb 18th, 2013 @ 2:38pm

                  Re: Re: Re: Re: Re: Re: Re:

                  You finally hit the nail on the head when you said that YOU are defining censorship a certain way. Just because you define it a way that is convenient to your argument does not make it so. Censorship is censorship regardless of why it occurs. If you want to call the flagging of posts voted down by the community censorship, fine, go right ahead. That still doesn't change the fact that removing speech so that it is no longer available to the public for some other excuse is much more egregious censorship than simply flagging content so that it is hidden where a click is required to access it.

                  Besides, your argument has one other flaw. How do you know what the reasons were that each person clicked the report button in order to have a comment hidden. Your argument assumes that the only reason anyone would report comment is because they disagreed with it. That is a claim I would like to see you try to back up as it is quite arrogant of you to claim that you know better than anyone else - even the people who have reported comments - as to what their reasons for doing so were.

                   

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                  Karl (profile), Feb 19th, 2013 @ 4:44pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Again, if the government did the same thing, it would violate the First Amendment.

                  If the government put the exact same system in place on, say, the whitehouse.gov website, would that would be censorship?

                  No.

                   

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              Anonymous Coward, Feb 18th, 2013 @ 12:22pm

              Re: Re: Re: Re: Re:

              "Yes, it could be abused just like every single other law could be abused."

              And this makes it okay?

              Couldn't they have amended SOPA to be less likely used for abuse?

               

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                Anonymous Coward, Feb 18th, 2013 @ 12:27pm

                Re: Re: Re: Re: Re: Re:

                Considering all of the procedural safeguards that SOPA provided--far more than any DMCA takedown notice--I'm not sure I agree that it would be wildly abused. A court would make the determination, not some user.

                 

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                  Anonymous Coward, Feb 18th, 2013 @ 12:41pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Public concern is still valid. Many programmers and networking personnel noticed issues that SOPA could have caused that weren't related to possibly violating first amendment rights.

                   

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                    Anonymous Coward, Feb 18th, 2013 @ 1:08pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Public concern is still valid. Many programmers and networking personnel noticed issues that SOPA could have caused that weren't related to possibly violating first amendment rights.

                    Yes, I recall the cries that it would "break the internet." I don't remember anyone actually explaining exactly what that meant. Mike took it and ran with it like crazy. He, of course, never wanted to discuss the merits of the claim.

                     

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                      Leigh Beadon (profile), Feb 18th, 2013 @ 1:15pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      I don't remember anyone actually explaining exactly what that meant.

                      Really? You must have a very selective memory then, since the people who know how the internet works all explained it in great detail.

                      And yes, you're about to say "but the DNS blocking provisions were removed", because that's the sort of circular game you're wont to play, ignoring the fact that you mocked the complaints that led to its removal, and would have happily seen those provisions remain.

                       

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                        Anonymous Coward, Feb 18th, 2013 @ 4:28pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        Really? You must have a very selective memory then, since the people who know how the internet works all explained it in great detail.

                        So you type in the domain name of site that has been blocked because a court determined that it was subject to blocking, and that site isn't returned because it's blocked, and that's the internet being "broken"? LOL! It's so dumb it hurts.

                         

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                          Anonymous Coward, Feb 18th, 2013 @ 5:08pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          Broken in the sense that anyone could throw an accusation and the government would be all over block a site and making unblocking said site procedurally difficult, unpleasant and nigh-impossible. Learn to reading comprehension, Mr. Kool-Aid.

                           

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                            Anonymous Coward, Feb 18th, 2013 @ 5:26pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            Anyone can lay a false accusation about anyone. You guys act like it's special because it can happen on the internet. SOPA gave defendants all of the procedural protections that every other defendant gets under the Federal Rules. Just because these are internet defendants doesn't mean they get special treatment.

                             

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                              Anonymous Coward, Feb 18th, 2013 @ 6:49pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              The same way people patent boring analogue things just because they're on the Internet.

                               

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                          Leigh Beadon (profile), Feb 18th, 2013 @ 7:38pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          If you think that constitutes a response to the thorough arguments presented by the architects of the DNS system, then you obviously didn't read them or failed to understand them.

                           

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                            Anonymous Coward, Feb 18th, 2013 @ 7:58pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            If you think that constitutes a response to the thorough arguments presented by the architects of the DNS system, then you obviously didn't read them or failed to understand them.

                            Explain it to me in simple English. Why would SOPA "break the internet."

                             

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                              Leigh Beadon (profile), Feb 18th, 2013 @ 10:03pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              "I can't recall anyone explaining why it would break the internet."

                              "Here are several examples from people with more knowledge and credentials than you..."

                              "I laugh at those examples! Har-har!"

                              "Um, okay..."

                              "Please, explain it to me in words a small child could understand!"

                              ...to which I respond: "No, and goodnight."

                               

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                                Anonymous Coward, Feb 19th, 2013 @ 4:33am

                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                So you can't explain it. Got it. Thanks.

                                 

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                                  Anonymous Coward, Feb 19th, 2013 @ 6:58am

                                  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                  Wow...for someone who uses hyperbole in just about every post, you are terrible at perceiving it in other peoples posts.

                                   

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                                    Anonymous Coward, Feb 19th, 2013 @ 7:03am

                                    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                    Wow...for someone who uses hyperbole in just about every post, you are terrible at perceiving it in other peoples posts.

                                    I read one of the links he provided, and it basically said the internet would be "broken" because sites that were blocked wouldn't resolve when you attempted to access them. He's saying that I'm wrong to characterize it that way. That's fine, but I'd like to him to state what it means for the internet to be "broken" in simple terms. How exactly is my simple characterization wrong?

                                     

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                                      Anonymous Coward, Feb 19th, 2013 @ 7:33am

                                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                      The "broken" part of that statement wasn't mean tot be a literal thing, Joe.

                                      You can argue all you want about the semantics of things, but the bill was changed to address concerns over the DNS issues. That means the public outcry on some of the issues held validity, but that outcry wasn't taken seriously by proponents of the bill.

                                       

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                                        Anonymous Coward, Feb 19th, 2013 @ 7:50am

                                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                        The "DNS" portion of the bill was removed because it was clear the technical issues required further discussion. As I recall, there were concerns that the "DNS" portion could have a problem with the future roll-out and implementation of "DNSSEC". While I happen to believe that the concerns were a bit overstated, it was prudent to remove the relevant portion of the bill for more rigorous study.

                                        It is useful to note that Paul Vixie, one of the several experts raising the DNSSEC issue, was not altogether consistent in his position. He clearly stated that the internet would survive if "child porn" was "blocked", but then he went on to state that in his personal opinion the infringement of copyrights was not an issue of sufficient importance to him that sites directly or indirectly enagaged in infringing activies should be "blocked". Thus, it is inaccurate to say that there was a disconnect in his opinion/logic.

                                         

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                                        Anonymous Coward, Feb 19th, 2013 @ 7:53am

                                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                        The "broken" part of that statement wasn't mean tot be a literal thing, Joe.

                                        Yet, Mike and the rest of the internet malcontents proclaimed that the internet would be "broken." Seems like they meant it literally. If Mike didn't really mean it, then where did he clarify that? I think it's obvious that he wanted to fire up the troops, and nothing does that better than empty rhetoric--Mike's specialty.

                                         

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                                          Leigh Beadon (profile), Feb 19th, 2013 @ 7:58am

                                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                          Remember how you spent all day yesterday going on and on about how something doesn't have to completely delete content in order for you to call it censorship?

                                          Well, something doesn't have to completely stop functioning in every way for us to call it broken. We consider massively reduced performance and huge security problems to be a form of "broken".

                                          Now, as fun as it's been playing dictionary with you this whole time, do you have any actual points to make, or do you just want to keep having massive debates about the appropriateness of single word choices?

                                           

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                                      Leigh Beadon (profile), Feb 19th, 2013 @ 7:40am

                                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                      Better go brush up on your reading skills then give it another go. The links include detailed technical explanations of why the DNS system is not designed to support such a method of blocking, and compromising it would open up all sorts of security holes and potential for abuse by altering the fundamental tree of authority system that makes DNS reliable and secure.

                                      Your summary of what it "basically said" is childishly simplistic and betrays your ignorance on the subject. It's not something that can be explained in "simple terms" because it has to do with a complex technological system which you need to obtain a basic understanding of in order to have this conversation.

                                      Clearly, you're not up for the task. Or you're just scared to acquire any new knowledge about this, lest it actually force you to reconsider your opinions.

                                       

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                                        Anonymous Coward, Feb 19th, 2013 @ 7:52am

                                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                        Instead of being so abusive and obtuse, why don't you instead just explain how it "breaks" the internet. Tell me too how there is already DNS blocking being done, yet the "DNS system is not designed to support such a method of blocking."

                                         

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                                          Leigh Beadon (profile), Feb 19th, 2013 @ 7:54am

                                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                          First, better take a quick course in how DNS systems function in the context of communications and security:

                                          http://www.circleid.com/posts/20121012_dns_policy_is_hop_by_hop_dns_security_is_end_to_ end/

                                          Then, dig in to the reasons why all the proposed methods for blocking at the DNS level would open massive security holes, place huge burdens on infrastructure, and create considerable performance problems for the end user:

                                          http://www.circleid.com/posts/20120111_refusing_refused_for_sopa_pipa/

                                          I'll be happy to read your point-by-point response to all the arguments that Paul Vixie, someone who has more intimate knowledge of DNS than you or me or pretty much anyone else on the planet, makes in the above posts. I will also be happy to read another short and snide dismissal of his posts without providing any reasoning, because I will take that as a concession that you're in over your head on this one.

                                           

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                                            Anonymous Coward, Feb 19th, 2013 @ 8:17am

                                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                            Yes, I read all that a year ago, and I read the responses from people who understand such things that pointed out that much of it is FUD and that DNS blocking happens already and the internet is not "broken." Vixie himself advocates such blocking in different contexts, if memory serves. If you want to explain it to me in your own words, I'm all ears.

                                             

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                                              Leigh Beadon (profile), Feb 19th, 2013 @ 8:34am

                                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                              Remember what I said I'd take it as if all you offered was another snide dismissal with no facts and no points made, and not even any links?

                                              Nice to have you finally concede a point for once.

                                               

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                      Anonymous Coward, Feb 18th, 2013 @ 1:31pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                       

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                        Anonymous Coward, Feb 19th, 2013 @ 7:10am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        That just says what I'm saying. "Broken" internet means that sites that had been ordered blocked by a federal court wouldn't have their domain names resolve. All other websites would work fine. How is that a "broken" internet? And how is that any different that the DNS blocking that already occurs?

                         

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          Anonymous Coward, Feb 18th, 2013 @ 3:51am

          Re: Re: Re:

          Hang on a minute, if a web site you own is taken down by another party because the dislike your ideas, then it is definite censorship. However this site belong to Techdirt, and they allow anyone to comment. they are not required to allow comments, and allowing some to hidden because the comment dislike them is not censorship.
          Note Techdirt would be within it rights to remove any posting they dislike, and it would still not be censorship except in its mildest meaning. Techdirt is not preventing you from setting up your own website where you would be free to say whatever you want.
          Freedom of speech is not a guarantee other have to listen to you, or carry out any publication or distribution of material on your behalf.

           

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          Leigh Beadon (profile), Feb 18th, 2013 @ 7:54am

          Re: Re: Re:

          Censorship in the First Amendment context means the government suppressing speech because of the ideas being expressed.

          FTFY. In case you didn't realize, a community moderating its own forum according to its own tastes is itself a form of free expression. You can accuse us of ignoring differing views if you want, as you often do, but to call it "censorship in the First Amendment context" is plainly idiotic, and you know it.

           

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            Anonymous Coward, Feb 18th, 2013 @ 11:53am

            Re: Re: Re: Re:

            FTFY. In case you didn't realize, a community moderating its own forum according to its own tastes is itself a form of free expression. You can accuse us of ignoring differing views if you want, as you often do, but to call it "censorship in the First Amendment context" is plainly idiotic, and you know it.

            I know the First Amendment only applies to the government, that's why I said "the government" in the sentence you're quoting. My point is that if the government did to speech what the "reporting" button does to speech, then that would in fact violate the First Amendment. I was very clear about this.

             

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              Anonymous Coward, Feb 18th, 2013 @ 12:20pm

              Re: Re: Re: Re: Re:

              Your analogy is a bit flawed.

              You seem to be comparing the people here to the "government", which doesn't make much sense since the commenters on TD all have differing views on points brought out in any given article. The report button is also an expression of their distaste for a comment much like how people express themselves towards companies on services like Yelp.

              Also, if you're referring to TD as the "government" that wouldn't make any sense either, since the report button is operated by anyone taking part it the public forum.

               

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                Anonymous Coward, Feb 18th, 2013 @ 12:26pm

                Re: Re: Re: Re: Re: Re:

                I'm saying that if the government hid unpopular posts from view and forced people to do an extra click to see it, that would violate the First Amendment since it's censorship. Suppressing speech doesn't necessarily mean taking it out of circulation altogether. Making it more difficult to access is also suppression.

                 

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                  Anonymous Coward, Feb 18th, 2013 @ 12:38pm

                  Re: Re: Re: Re: Re: Re: Re:

                  But Techdirt doesn't hide unpopular posts. The hidden stigma comes from people who disagree with the posting. These people are part of the public.

                   

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              Leigh Beadon (profile), Feb 18th, 2013 @ 12:35pm

              Re: Re: Re: Re: Re:

              I know the First Amendment only applies to the government, that's why I said "the government" in the sentence you're quoting.

              Heh. No, you didn't. I added it. That's why I said "FTFY" in my response. Is your memory so poor that you can't even recall what you wrote yesterday, and your patience so short that you can't be bothered to check?

              As for this bizarre argument you are trying to start about "what if the government did what we do", there are lots of things that I would call censorship if the government did them, but which I defend when private entities do them... is that so hard to comprehend? Restaurants can have dress codes, but our public streets can't; newspapers can decide what is allowed on their pages, but the government can tell journalists what they are allowed to write about; I'm allowed to deny a person access to my bookshelf on any grounds I see fit, a public library is not.

              Of course, all that is paying far too much credence to an argument that you surely already know to be ridiculous, and are intentionally blowing out of proportion in an attempt to avoid having to discuss the real topic here. We're talking about a community moderation system for open comments on blog posts, that doesn't even involve removal of any content -- hell, even if the government had such a system on an official government blog, few people if any would call it censorship.

              As I said earlier, you have two options: address the real issues, or spin your wheels debating one 10-letter word. I see you've made your choice.

               

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                Anonymous Coward, Feb 18th, 2013 @ 12:52pm

                Re: Re: Re: Re: Re: Re:

                Heh. No, you didn't. I added it. That's why I said "FTFY" in my response. Is your memory so poor that you can't even recall what you wrote yesterday, and your patience so short that you can't be bothered to check?

                When you put the words that I wrote in quotation marks, I assumed you were quoting me. I didn't bother to double check.

                I did say this yesterday: "But if the government got in the business doing what the TD "reporting" button does, that is, suppressing unpopular speech and making it more difficult to access because of a disagreement with the ideas being expressed, then that would be censorship and the First Amendment would be violated." https://www.techdirt.com/articles/20130215/17173222005/derek-khannas-favorite-techdirt-posts-week.sh tml#c427

                So clearly I understand the difference, and I'm well-versed in the state action doctrine.

                 

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        •  
          icon
          dennis deems (profile), Feb 19th, 2013 @ 12:44pm

          Re: Re: Re:

          Censorship in the First Amendment context means congress enacting legislation that limits your freedom to publish your ideas. No private entity is obliged by the First Amendment to publish or defend your ideas for you.

           

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    •  
      icon
      Mike Masnick (profile), Feb 18th, 2013 @ 2:24am

      Re:

      The term "censorship" was bandied about by SOPA opponents, and yet precisely why this was deemed so was not articulated in any way I would deem an impartial analysis. Perhaps you may care to elaborate.

      Really?

      Over 100 top legal scholars wrote a letter detailing exactly why:

      http://www.techdirt.com/articles/20111115/17382616784/over-100-lawyers-law-professors-practi tioners-come-out-against-sopa.shtml

      I'll quote:


      The Supreme Court has made it abundantly clear that governmental action to suppress speech taken prior to "a prompt final judicial decision . . . in an adversary proceeding" that the speech is unlawful is a presumptively unconstitutional "prior restraint," the "most serious and least tolerable infringement on First Amendment rights," permissiable only in the narrowest range of circumstances. The Constitution "require[s] a court, before material is completely removed from circulation, ... to make a final determination that material is [unlawful] after an adversary hearing."



      The Act fails this Constitutional test. It authorizes courts to take websites "out of circulation" -- to make them unreachable by and invisible to Internet users in the United States and abroad -- immediately upon application by the Attorney General after an ex parte hearing. No provision is made for any review of a judge's ex parte determination, let alone for a "prompt and final judicial determination, after an adversary proceeding," that the website in question contains unlawful material. This falls far short of what the Constitution requires before speech can be eliminated from public circulation.


      Not enough for you? Ok, how about noted Constitutional scholar Laurence Tribe? He also explained why it was censorship:

      A key provision of the bill would give copyright owners the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice that the site is “dedicated to the theft of U.S. property” — even if no court has actually found any infringement.



      The immunity provisions in the bill create an overwhelming incentive for advertisers and payment processors to comply with such a request immediately upon receipt. Courts have always treated such cutoffs of revenue from speech as a suppression of that speech, and the silencing of expression in the absence of judicial review is a classic prior restraint forbidden by the First Amendment.

      Even Floyd Abrams -- basically the only prominent lawyer the MPAA could find to support them (and only because they were a client) more or less admitted that SOPA would lead to censorship, though he (or, rather, the NBC employee who actually wrote the brief) suggested it was okay for there to be a little bit of censorship:

      Regardless of the particular standard or definition of foreign infringing sites, court-approved remedies under the Stop Online Piracy Act may result in the blockage or disruption of some protected speech. As discussed above, the bill provides a range of injunctive relief is available, with a court making the final determination as to whether and how to craft relief against a website operator or owner or third party intermediaries. When injunctive relief includes blocking domain names, the blockage of non-infringing or protected content may result.

      To argue that why it was censorship was "not articulated" is simply not supported by reality.

       

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      •  
        identicon
        Anonymous Coward, Feb 18th, 2013 @ 6:43am

        Re: Re:

        1. "100 Profs" letter was the work product of 3 persons, Lemley, Levine, and Post. The other 97 were signatories, "coattail riders" if you will. This is a common practice in academic circles pursued to add yet another line to their CVs. As for the actual authors, their "opinion" was merely unsubstantiated declaratory statements. As "legal opinions" go, it was remarkable for its lack of reference to any legal precedent.

        2. Tribe at least cited some caselaw, but his argument was weak on the facts and directed to the wholesale removal of content from the public forum. Moreover, his letter criticized the "private actor" provisions of the bill. The problem is, however, that those provisions had already been removed. A legal opinion predicated on the provisions of a bill that were no longer relevant is not particularly persuasive. Had he written his opinion with the bill actually moving through Congress in mind, then perhaps it would have merit. Alas, this was not the case.

        3. The selection of one section contained in Mr. Abrams opinion, which made extensive use of citing precedent as should be the case in any legal opinion, amounts to out-of-context cherry-picking. Contemporaneous with the excerpt you cite was additional analysis of caselaw why he believed that the impact on some otherwise legal speech was not controlling and why.

        Obviously, many aligned against SOPA were only too happy to latch on to 1 and 2 above, and to then denigrate 3. because the author prepared his legal opinion at the request of one industry association, thus rendering his legal opinion untrustworthy as little more than "shilling" for the association.

        Obviously, 1 and 2 struck a responsive chord with the anti-SOPA crowd, but for many others the "chord" was out of "tune".

         

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        •  
          icon
          Mike Masnick (profile), Feb 18th, 2013 @ 7:56am

          Re: Re: Re:

          Ah, I see. It's not that answers were not articulated, it's that you disagree with the many, many answers given by people more knowledgeable and respected in the field than you. So you ignore them.

          But now that I call you out on it, you mock them. Also, the fact that 100 people signed on to a letter written by 3 people... why is that a negative? Obviously they wouldn't sign on if they did not believe the letter properly reflected their viewpoints. That suggests that all of them -- most of them highly respected in the field -- found the letter to be accurate.

          The cognitive dissonance is strong with you, but we've always known that. You speak ill of that which you know nothing about, especially if it attacks your world view. And when called on it, you start tap dancing.

          Speaking of which, will you admit you were wrong when you claimed Bret Easton Ellis couldn't possibly have fans? Or that he couldn't possibly have hired an executive producer? Remember that? Good times.

           

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          •  
            identicon
            Anonymous Coward, Feb 18th, 2013 @ 9:34am

            Re: Re: Re: Re:

            I mock no one, and to suggest otherwise is a mistake. As a lawyer I read briefs, journal articles, etc. They follow a model where declarative statements are backed by reference to specific statutes, controlling precedent, published journal articles, etc.

            I can be persuaded by well thought out arguments backed by reference to precedents and other authoritative sources. The "100" profs lacked such backup, rendering it an opinion, and not a legal argument having persuasive force.

            An example of a letter that generally reflects what I am talking about can be found at:

            http://www.volokh.com/2013/02/11/letter-to-senator-cruz-on-constitutional-issues-in-federal-g un-control-proposals/

            Reference to this example does not mean I agree with it points, but only that the writer provided backup for each point he raised. BTW, the letter is associated with an entirely different legal issue (the Second Amendment), but the format of the letter tracks what in my view such a letter should comprise.

             

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          •  
            identicon
            Anonymous Coward, Feb 18th, 2013 @ 9:54am

            Re: Re: Re: Re:

            Anent your mention of Mr. Ellis, not once did I say he could not possibly have a fan base. Why you keep saying I did leads me to believe you have a deep-seated antipathy towards any comments I provide, be they casual or substantive.

             

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            •  
              identicon
              Anonymous Coward, Feb 18th, 2013 @ 10:34am

              Re: Re: Re: Re: Re:

              "The expertise of these gentlemen in film is as screen writers, so it is a bit difficult to see how they would have a fan following."

              I believe that's the quote of yours Mike is referring to. Your back peddling and denying of things you've actually stated has become tiresome. At least be a man and stand by what you say, even if it's proven to be wrong. The Anonymous COWARD name suits you. It's quite cowardly to say, "Nuh uh, I didn't say that. It was some other AC."

              Of course I could go and start quoting other choice bits, but meh. Why bother when we all can easily see what you did or didn't say. Your denials not withstanding.

              http://www.techdirt.com/articles/20120518/07054018969/hollywood-talent-turns-to-kic kstarter-to-escape-institutional-censorship.shtml?threaded=true#c331

               

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            •  
              icon
              Mike Masnick (profile), Feb 18th, 2013 @ 11:13am

              Re: Re: Re: Re: Re:

              Anent your mention of Mr. Ellis, not once did I say he could not possibly have a fan base. Why you keep saying I did leads me to believe you have a deep-seated antipathy towards any comments I provide, be they casual or substantive.

              Your exact quote was: "The expertise of these gentlemen in film is as screen writers, so it is a bit difficult to see how they would have a fan following."

              This showed you speaking from a position of total ignorance, given the rabid fanbase for Ellis. We called you on it, and to this day you refuse to admit that you spoke from a position of ignorance.

               

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              •  
                identicon
                Anonymous Coward, Feb 18th, 2013 @ 3:03pm

                Re: Re: Re: Re: Re: Re:

                Uh..."bit difficult" is not the same as "couldn't possibly". If I had meant the latter I would have said it.

                 

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                •  
                  identicon
                  Anonymous Coward, Feb 18th, 2013 @ 5:09pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Wow, no kidding you're a lawyer alright. You've got more weasel words than a school teaching the weasel language!

                   

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                  •  
                    identicon
                    Anonymous Coward, Feb 18th, 2013 @ 9:15pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Yes, the phrase "bit difficult" is an outstanding example of weasel words that can only be understood by a lawyer. I think not, but then again it is only your opinion and you are completely entitled hold it.

                     

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          •  
            identicon
            Anonymous Coward, Feb 18th, 2013 @ 11:51am

            Re: Re: Re: Re:

            Speaking of which, will you admit you were wrong when you claimed Bret Easton Ellis couldn't possibly have fans? Or that he couldn't possibly have hired an executive producer? Remember that? Good times.

            It's really childish and stupid that you keep bringing up that one point in your attempt to discredit this AC. Be a grown up and talk about the merits of the issue at hand.

             

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            •  
              identicon
              Anonymous Coward, Feb 18th, 2013 @ 5:10pm

              Re: Re: Re: Re: Re:

              But it's not childish and stupid that you whine about Masnick not debating you at the level in which you call him a thief? In every single thread, regardless of relevance?

               

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              •  
                identicon
                Anonymous Coward, Feb 18th, 2013 @ 5:25pm

                Re: Re: Re: Re: Re: Re:

                The fact that Mike runs away from debates and refuses to discuss his personal beliefs on a blog that he runs where he rips apart everyone else's beliefs is different. I publicly shame him for being a fake and coward because he deserves it.

                 

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                •  
                  identicon
                  Anonymous Coward, Feb 18th, 2013 @ 6:13pm

                  Re: Re: Re: Re: Re: Re: Re:

                  So don't whine when your behaviour is treated accordingly. You're being blocked for refusing to have a civil discussion, and you deserve it.

                   

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                  •  
                    identicon
                    Anonymous Coward, Feb 18th, 2013 @ 6:15pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    That's fine. I'm not whining. I'm merely pointing out the fact that such blocking is censorship. Censor away, but just admit that it's censorship.

                     

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                •  
                  identicon
                  Anonymous Coward, Feb 19th, 2013 @ 6:54am

                  Re: Re: Re: Re: Re: Re: Re:

                  "I publicly shame him for being a fake and coward because he deserves it."

                  It's amazing the lack of perception you have. You're one of the very few people who actually believe Masnick is out to rip apart everyone else's beliefs on an opinion blog...imagine that, disagreeing with or "ripping apart" (nice use of lawyer hyperbole) other's opinions on your own blog, what a terrible man Mike is.

                  I mean he's using his right to free speech to vocalize his disagreement with other's beliefs...wow, what a terrible terrible terrible man.

                   

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                  •  
                    identicon
                    Anonymous Coward, Feb 19th, 2013 @ 7:12am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    It's amazing the lack of perception you have. You're one of the very few people who actually believe Masnick is out to rip apart everyone else's beliefs on an opinion blog...imagine that, disagreeing with or "ripping apart" (nice use of lawyer hyperbole) other's opinions on your own blog, what a terrible man Mike is.

                    I mean he's using his right to free speech to vocalize his disagreement with other's beliefs...wow, what a terrible terrible terrible man.


                    It's fine that he's critical of others. What makes him fake and cowardly is that he can't stand it when others are critical of him. He criticizes other people's beliefs, but then he refuses to discuss his own directly and on the merits.

                     

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                    •  
                      identicon
                      Anonymous Coward, Feb 19th, 2013 @ 7:28am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      So you're assuming he doesn't express his own beliefs for fear of criticism?

                      I've seen it happen plenty of times where Masnick was called out for expressing his belief in something. He may not have had all the evidence to suggest his perception was the right one, but that was still what he believed.

                      "It's fine that he's critical of others."

                      Apparently, you don't believe that because you continue on your crusade.

                       

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                      •  
                        identicon
                        Anonymous Coward, Feb 19th, 2013 @ 7:55am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        I've seen it happen plenty of times where Masnick was called out for expressing his belief in something. He may not have had all the evidence to suggest his perception was the right one, but that was still what he believed.

                        That's just it. Mike pretends like he only bases his beliefs on evidence. He's a hard evidence guy. But the fact is that he jumps to conclusions and avoids evidence more so than most. Call him out on it, and he freaks out and/or runs away. He childishly lashes out and spouts venom, rather than just sit down and have a discussion on the merits. Total fake, total coward. I love saying that.

                        Apparently, you don't believe that because you continue on your crusade.

                        Like I said, that's fine as long as he's able to be self-critical and to recognize that most of what he says can't be backed up either.

                         

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                    •  
                      identicon
                      Anonymous Coward, Feb 19th, 2013 @ 8:02am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Divergent opinions are always a good thing, leading to a healthy and informative debate. Where matters begin to go awry is when such debates turn into "mock-fests" and "expletive-fests". It is just my opinion, but having read many such debates it seems that once an individual who disagrees with a TD position makes a fair and comprehensive point, all further communication with the TD principals come to a grinding halt. At times it reminds me of children playing where one suddenly announces "Game over. I am taking my ball and going home."

                      People can always agree to disagree, but to allow honest disagreements to turn into the most base of name-calling and issue avoidance is not calculated to result in an intellectually honest and informative discussion.

                       

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                      •  
                        identicon
                        Anonymous Coward, Feb 19th, 2013 @ 8:17am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        Divergent opinions are always a good thing, leading to a healthy and informative debate. Where matters begin to go awry is when such debates turn into "mock-fests" and "expletive-fests". It is just my opinion, but having read many such debates it seems that once an individual who disagrees with a TD position makes a fair and comprehensive point, all further communication with the TD principals come to a grinding halt. At times it reminds me of children playing where one suddenly announces "Game over. I am taking my ball and going home."

                        People can always agree to disagree, but to allow honest disagreements to turn into the most base of name-calling and issue avoidance is not calculated to result in an intellectually honest and informative discussion.


                        Amen.

                         

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                      •  
                        icon
                        Leigh Beadon (profile), Feb 19th, 2013 @ 8:41am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        The problem is that this particular AC seems blind to divergent opinions -- he cannot admit that he disagrees with someone, instead choosing to insist that they haven't answered him.

                        If you look through, for example, Mike's comment history, you will see that Mike has regularly engaged this AC (he's easy to recognize don't worry) at great length -- obviously without reaching any agreement, which is fine. But this AC has never "agreed to disagree" as you propose, or even acknowledged that he wants a "healthy and informative debate" -- instead he has repeatedly insisted that we are running away from questions or refusing to answer, even in the face of lengthy, detailed answers.

                        You can even see him use the tactic in this thread. Earlier, he said he "doesn't recall" anyone ever explaining how DNS would break the internet. Now, the next day, he admits that he "read all that a year ago" -- so, quite clearly, he DOES recall the explanations. He disagrees with them, which is fine, but he was incapable of saying that -- instead he had to pretend they don't exist. Then when provided links he repeatedly said "please explain it to me" -- flatly refusing to acknowledge that an explanation had been offered simply because it was one that didn't satisfy him.

                        Someone seeking a healthy and informative debate would have commented "I recall the arguments for why SOPA would break the internet, and here are the reasons I find them unsatisfactory..."

                         

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      •  
        identicon
        Anonymous Coward, Feb 18th, 2013 @ 11:50am

        Re: Re:

        Over 100 top legal scholars wrote a letter detailing exactly why:

        And I'd love to go through their arguments in painstaking detail, demonstrating to you how they're wrong. Let me know when you're up for that.

        Even Floyd Abrams -- basically the only prominent lawyer the MPAA could find to support them (and only because they were a client) more or less admitted that SOPA would lead to censorship, though he (or, rather, the NBC employee who actually wrote the brief) suggested it was okay for there to be a little bit of censorship:

        Yes, some protected speech would be affected. But that doesn't mean that it violates the First Amendment. Again, happy to go through this in exceedingly fine detail.

         

        reply to this | link to this | view in chronology ]

        •  
          identicon
          Anonymous Coward, Feb 18th, 2013 @ 1:16pm

          Re: Re: Re:

          You just contradicted yourself.

          "Yes, some protected speech would be affected. But that doesn't mean that it violates the First Amendment."

          if protected speech is affected, how does it NOT violate the First Amendment?

          This is the internet, buddy, not television, not radio, not a restaurant, not a church, not school, it's the internet.

          Freedom of speech is pretty much the only thing people have on a COMMUNICATION medium, so long as it's not causing direct harm to someone (such as slander and liable would), there's no reason to censor it.

          Look up the dirtiest words via google that would never get aired on television, radio or heard in businesses, ETC.

          So tell me, how does protected speech that gets affected NOT violating the first amendment?

           

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          •  
            identicon
            Anonymous Coward, Feb 18th, 2013 @ 4:35pm

            Re: Re: Re: Re:

            if protected speech is affected, how does it NOT violate the First Amendment?

            Simple. The First Amendment doesn't say that protected speech can never be negatively affected. What matters is the reason it's affected. If you use a car to deliver protected speech to orphans, but you also use it to deliver child pornography to perverts, that car can be seized and forfeited. The fact that you use it for First Amendment protected activities doesn't insulate it from your use of it for crime.

             

            reply to this | link to this | view in chronology ]

            •  
              icon
              Leigh Beadon (profile), Feb 18th, 2013 @ 7:47pm

              Re: Re: Re: Re: Re:

              What matters is the reason it's affected.

              Well, at least then you agree that, currently, the DMCA is used as a censorship tool by some. After all, you're not so ignorant as to deny that there have been multiple instances -- not necessarily the majority, but multiple instances -- in which someone's reason for sending a DMCA takedown was not a legitimate copyright concern but rather a desire to suppress expression they didn't like. And surely, thus, you're not so naive as to deny that SOPA-like provisions would allow similar abuse, and will in some cases be abused in that way. Good, now we're getting somewhere.

              So, having admitted now that SOPA will be used for censorship in at least some cases, and that a discussion about SOPA as a potential censorship tool is totally reasonable (thank you, it's about time) are you prepared to make your argument for why you think that danger is marginal and/or acceptable?

               

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      •  
        identicon
        Anonymous Coward, Feb 18th, 2013 @ 2:28pm

        Re: Re:

        So to follow your logic a child porn site illegally depicting children in sexual situations which also maintains a chat board for the diddlers to discuss their trade craft should be protected? That's absurd. But to say a site trafficking in infringing material as well as non-infringing material is precisely the same thing. The SOPA standard was "dedicated to infringing activity" and gave the site owner the same rights as any other civil litigant under the FRCP.

         

        reply to this | link to this | view in chronology ]

        •  
          identicon
          Anonymous Coward, Feb 18th, 2013 @ 3:06pm

          Re: Re: Re:

          Child porn is NOT copyright.

          Oh gods, that...

          your comparison is just sick, dude, sick.

          Child porn takes ADVANTAGE of children.

          Copyright infringement does NOT take advantage of anyone! Sheesh!

          There's a fucking difference between copyright infringement and pedophillia.

           

          reply to this | link to this | view in chronology ]

          •  
            identicon
            Anonymous Coward, Feb 18th, 2013 @ 4:37pm

            Re: Re: Re: Re:

            It never ceases to amaze me how folks on TD can't understand how a simple analogy works. Hint, analogies look at the similarities, not the differences.

             

            reply to this | link to this | view in chronology ]

            •  
              identicon
              Anonymous Coward, Feb 18th, 2013 @ 9:19pm

              Re: Re: Re: Re: Re:

              Perhaps a "get away car" is more apt. Allow the public at large to use it as a bulletin board, write on it to express opinions on any subject they wish, etc., and then when it is confiscated upon the bank robbers being caught scream "First Amendment" at the top of your lungs.

               

              reply to this | link to this | view in chronology ]

          •  
            identicon
            Anonymous Coward, Feb 19th, 2013 @ 5:30am

            Re: Re: Re: Re:

            Yes there is a difference. But both are unlawful conduct on a specific website. And copyright infringement does take advantage of the owner of the copyright. Under the theory espoused, both the infringing material and sexual images of children would be protected from takedown by the existence of co-existing, lawful protected speech.

            Both activities are unlawful, however the situation relating to "collateral damage" is precisely the same. The only difference is that one activity is held almost universally repugnant and the other not. But the collateral damage theory as a legal principle applies equally.

             

            reply to this | link to this | view in chronology ]

          •  
            identicon
            Anonymous Coward, Feb 19th, 2013 @ 5:01pm

            Re: Re: Re: Re:

            And there's a difference between pedophilia and child porn.

             

            reply to this | link to this | view in chronology ]

        •  
          identicon
          Anonymous Coward, Feb 19th, 2013 @ 4:59pm

          Re: Re: Re:

          "Congress shall make no law...abridging the freedom of speech, or of the press". Sounds pretty straightforward to me. I don't see the words "except for" in there, do you?

           

          reply to this | link to this | view in chronology ]

  •  
    icon
    dennis deems (profile), Feb 19th, 2013 @ 10:36am

    You left out some really good stories including one of the best I've seen on td or anywhere else.

     

    reply to this | link to this | view in chronology ]


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