Copyright As Censorship: Using The DMCA To Take Down Websites For Accurately Calling Out Racist Comments

from the copyright-as-censorship dept

While some still believe that copyright can never be used to censor, we see it happen all the time. Here's just the latest example. The websites for both the Center for a Stateless Society and the Students for a Stateless Society have been taken down by Bluehost, an ISP with a history of taking down entire sites based on single DMCA claims (i.e.: don't ever use Bluehost as a hosting company). Why? Apparently because of a DMCA takedown notice sent by lawyer JD Obenberger on behalf of his client, Olivier Janssens (though, in the DMCA notice, Obenberger refers to him as Oliver, not Olivier).

What "copyright" did these sites violate? Well, it turns out that the sites were somewhat (reasonably) annoyed by comments by some members of Students for a Stateless Society in Belgium, and so they highlighted some comments which they felt were inappropriate, calling attention to the fact that these sorts of comments were inappropriate and at odds with the views and goals of the organization. One of those whose comments were called out was (you guessed it) Olivier Janssens. You can read the comments at the link above, which S4SS argued were Islamophobic, which they felt went against their basic principles, and then the group officially disassociated itself with the chapter to which Janssens and others belonged.

Then came the DMCA notice from Obenberger, which is really quite a thing to read. On my first read, I wondered if it was fake, because not only is it completely over the top, in it, Obenberger more or less admits that the takedown has little to do with copyright, but is to try to hide the (accurately reported) words of Janssens, and makes a statement that I still can't believe anyone has ever said in seriousness (bolded below):
I am the attorney for Oliver Janssens who is the victim of copyright infringement and a particularly dangerous violation of his right to privacy which affects his personal safety and security. In other words, what follows is not your typical DMCA letter about whose porn is being bootlegged by which pirate.

Your hosting customer, who operates http://s4ss.org, decided to embarrass Oliver Janssens in the worst and most effective way - by words out of his own mouth. Words of his own creation which, when reduced to the tangible medium of a FaceBook page, acquired a copyright recognized by the United States Copyright Act and international conventions concerning copyright. And because the words he wrote, in what he imagined to be a close discussion among like-minded persons in a FaceBook page, reflected heterodox social and political views about Muslims in Europe, its further publication on your servers presents certain practical dangers to the safety and well-being of Mr. Janssens, who lives and works in that part of Europe in which violence is so routinely applied by Islamic Extremists to those who oppose them, that it seldom makes the news here when its victims are nailed into coffins and buried.

Mr. Janssens participated in a harsh social/political discussion with several other per­sons in a FaceBook group and his comments may be understood as antagonistic to Muslims, at the risk of understatement. I'm sure that, if he could see how they would be published via your servers to the entire world, he'd pull them back. It is too late for regrets. But it is not too late to try to put a tourniquet on this bleeding by stopping the further illegal dissemination of his property.

I am writing this letter in an effort to reduce the chances that Mr. Janssens may become a target for violence and harassment. I am writing to you because, when Mr. Janssens appealed to the operator of the site, your hosting customer, with a request for a takedown of this material, his own private words written among friends, his own intellectual property, your customer operating the site told him to"pound sand" yesterday, on September 19.

He has not authorized anyone to repost his words, yet a user of your web hosting services, S4SS Admin, has posted them on the S4SS website, specifically on the web page indicated below. Further, Oliver Jannsens has not authorized the translation into English of the writings, which your hosting customer also publishes at the same page.

By providing hosting services to that site and its operator, you materially assist the infringement of the exclusive copyright that Mr. Janssens possesses in those words of his authorship, a copyright created under the Berne Convention and American law at the moment he typed them and pressed the Return Button. Should Mr. Janssens become the victim of an assault or murder traceable to this infringement, should he be harassed and ridiculed and run out of his employment or lose his terrified family, committed by a person who targeted him, the embarrassment to Bluehost/Hostmonster would be enormous. And the potential damages, should you disregard this request and demand under the DMCA, and should Mr. Janssens become the target of retaliation inflicted upon him in Europe by a religious zealot who read about him on the website in question, stagger the imagination.

*I would demand, on behalf of my client, that you 1) immediately terminate the hosting of these files, 2) delete their contents from your servers and all other media, 3) advise us of the identity of the uploader, and 4) inform the posters and your hosting client that their illegal conduct jeopardizes not only them, but you as well.
The letter seemed so preposterous that I emailed Obenberger asking for confirmation that he'd actually written and sent it, but as of publishing have received no reply (well over 24 hours since I emailed). Not only is that bolded line such an incredible statement -- saying that it's somehow unfair to actually quote the words someone said -- his further explanation appears to be a rather blatant admission that the takedown here was not for anything having to do with copyright at all, but some random, unsupported worry that Janssens' actual statements might reflect poorly on Janssens. Because they do.

Obenberger, by the way, claims to be a strong First Amendment defender. His website is littered with claims about his strong belief in free speech and the First Amendment, and how he goes to great lengths to protect that right. That's kind of funny as he's now taking down an entire site via an incredibly questionable DMCA claim. And there's a very good chance he knows that his DMCA notice is highly questionable. As the On Alliance blog points out, Obenberger himself has written about filing DMCA notices in which he goes into great detail, including noting that you shouldn't file a threat of a lawsuit if the copyright holder hasn't registered the copyright with the US government prior to the alleged infringement. Somehow that seems quite unlikely here, and yet he still sent the takedown.

While it's entirely possible (though quite a stretch) that Janssens could face the consequences of his words in a manner suggested by Obenberger, that's the nature of free speech. You are free to say what you want, but it does not make you free from the consequences of your speech. Furthermore, copyright has nothing to do with that. You don't get to claim that it's a copyright violation because someone's words might legitimately be used against them. That's the point in which the DMCA letter slips into admitting that this has nothing to do with copyright at all, but rather is an attempt to abuse the DMCA process to silence Students for a Stateless Society for calling out Janssens' statements.

Furthermore, even if there was a copyright issue here, this is about as slam dunk a fair use claim as you could possibly imagine. S4SS quoted a few brief snippets of a Facebook discussion to call certain people out on their statements. The idea that there's a legitimate copyright claim there is preposterous. At the very least the use was clearly fair use. It was used for commentary and criticism. It was not used for commercial purposes (at all). The nature of the "copyrighted work" (already a stretch) was some bigoted Facebook comments (which were unlikely to be registered prior to the alleged "infringement"). There is no market for the works, so the impact on the market was nil. Instead, it seems clear (and, Obenberger more or less admits this in the DMCA letter itself), the entire purpose was to censor the site that called out the statement of his client.

If anything, it makes you wonder if Obenberger and Janssens may have opened themselves up to a significant DMCA 512(f) issue in arguing that such obviously non-infringing content was infringing.

I asked folks associated with C4SS and S4SS for more details about this as well, and was forwarded Jenssen's original threat email demanding that the content be removed (before he got Obenberger involved), and it's equally ridiculous. It claims that "you do not have my permission to repost my opinions" and claims it's an "official cease and desist letter," and if they don't comply he'll sue. Of course, it's difficult to see how he has any grounds, whatsoever, to sue. Of course, S4SS has the right to repost his opinions, especially in the manner in which the organization did so.

After C4SS and S4SS published the bogus takedown notice again, Jenssen sent yet another email, though somewhat more conciliatory, saying that it wasn't his intention to have the entirety of both sites taken down, and that as an "anarchist-libertarian" he's "not exactly in support of copyright." Of course, he probably should have thought of that before hiring a lawyer to send a highly questionable DMCA takedown notice that is entirely hinged on copyright law. He does apologize for the takedown, and tries to explain his initial comments which got him into the mess in the first place, claiming that he went too far in his comments, believing (incorrectly) that it was a private group. Again, this isn't fully convincing, because he did make those comments.

And, of course, you have to wonder how apologetic he is, when after "apologizing" and giving his side of the story, he immediately adds the following:
If you continue this, I will have no other choice than to continue protecting my person by having it removed, and additionally I will also start pressing personal charges to the persons doing so (for endangering my life/family intentionally). I have a practically unlimited budget to do so, but obviously this is not what I want.
Again, I'm curious as to what legal basis there is to press charges against someone for quoting someone else accurately. That would make for an interesting lawsuit as well.

In the meantime, however, we've got a bogus DMCA notice that has completely taken down the sites of two organizations, and threats of further lawsuits, even from someone who claims he doesn't believe in copyright law. But, no, copyright could never possibly be used for censorship.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Ninja (profile), Sep 25th, 2013 @ 11:04am

    Your hosting customer, who operates http://s4ss.org, decided to embarrass Oliver Janssens in the worst and most effective way - by words out of his own mouth.

    I wonder what he will write when he sends a cease and desist letter to Techdirt host.

    Your hosting customer, who operates http://www.techdirt.com, decided to embarrass myself in the worst and most effective way - by replicating my stupidity in its full written glory.

    The guy has a natural talent for comedy though.

     

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  2.  
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    Vidiot (profile), Sep 25th, 2013 @ 11:06am

    "Practically unlimited budget..." Hey, wait... my long-lost cousin Olivier! Buddy!

     

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  3.  
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    Zakida Paul (profile), Sep 25th, 2013 @ 11:10am

    Another anomaly. How many is that now?

     

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    out_of_the_blue, Sep 25th, 2013 @ 11:12am

    NOR could Techdirt's "report" button, eh?

    Oh, you kids. So totally arrogant that you censor even in an item about censorship! But here it is in full:

    This comment has been flagged by the community. Click here to show it

    out_of_the_blue, Jul 26th, 2013 @ 2:28pm

    All those examples you list, are not really "creators"...
    They're mis-using a perfectly good tool. All you've exampled are copying grifters on the one hand, and bullies on the other. Proves nothing except that you take every chance to attack copyright. You're down to the false analogy level of: you can kill with an ordinary dinner fork, so do away with them. And to cover your broad stroke: using someone else's specific work is at best not the same as either "censorship" or "free speech".

    "First off while the actual copyright itself might be a form of property in that it can be bought and sold, the underlying content is not." -- HUH? You're splitting off "copyright" from the specific expression? Whew. Novel. The "content" is what's copyrighted, Mike...


    Take a loopy tour of Techdirt.com! You always end up same place!
    http://techdirt.com/
    If you're against copyright, quit putting your name on posts! You don't own the idea!


    I'll just let the prior censorship of that speak for how reliable is this "community" on the subject. -- And readers can see if they do it again now!

     

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  5.  
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    Alt0, Sep 25th, 2013 @ 11:18am

    I personally like how he states he has an "unlimited budget" to use in court cases, yet is terrified he could lose his job because of his statements.

    He should use his "unlimited" resources and move the hell out of wherever he is, and away from these things he so despises.

     

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  6.  
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    Josh in CharlotteNC (profile), Sep 25th, 2013 @ 11:19am

    No market?

    No market for that work? We have entire TV networks based off making similar comments.

     

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  7.  
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    crade (profile), Sep 25th, 2013 @ 11:23am

    Re: NOR could Techdirt's "report" button, eh?

    What difference does it make if you call them creators or not? Call them turnips for all I care, the result that copyright is used to censor doesn't change. Why would anyone care who is using it to censor? Laws aren't "tools", they are rules. If they can be used for evil they aren't perfectly good.

     

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  8.  
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    Mason Wheeler, Sep 25th, 2013 @ 11:23am

    Please stop abusing the R word

    Making disparaging comments about Islam is not racist, due to the very simple fact that Islam is not a race. Islam is a religion, with adherents from many different ethnic groups around the world, and calling anti-Islamic speech "racist" not only makes you look ignorant, but dilutes the term and makes it feel meaningless. Let's reserve it for situations it actually applies to, OK?

     

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  9.  
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    Anonymous Coward, Sep 25th, 2013 @ 11:27am

    Re: NOR could Techdirt's "report" button, eh?

    I have good news for you. Your post aren't not censored. Techdirt doesn't actually remove your comments. Just click on the "Click here to show it" with your mouse and it will reveal your entire post.

     

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  10.  
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    S. T. Stone, Sep 25th, 2013 @ 11:27am

    Re: NOR could Techdirt's "report" button, eh?

    The owners and administrators of privately-owned site with comments sections may choose what and what not to allow in said comments. If the Powers That Be decide on a specific comment not meeting their guidelines for useful and relevant commentary on a specific entry/article/column/etc. hosted on the site, they can delete or hide it however they wish.

    This does not qualify as censorship because the people who offered you a soapbox dont have any obligation to allow you to use it, nor does the government have any ability to force them to let you use it.

    Copyright, on the other hand, does exist as a government-granted civil right. Anyone who uses the DMCA to take down a website with legitimate commentary on something the site owners/administrators find newsworthy has committed an act of government-sponsored censorship.

    Therein lies the difference between comment blocking and censorship: the former asks you to take your shouting elsewhere, while the latter prevents you from shouting.

     

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  11.  
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    crade (profile), Sep 25th, 2013 @ 11:28am

    Re: Please stop abusing the R word

    If you want to get technical there is only the human race anyway, so your term the way you define it is already meaningless.

     

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  12.  
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    Anonymous Coward, Sep 25th, 2013 @ 11:29am

    Re: NOR could Techdirt's "report" button, eh?

    That line you posted right above your comment...

    This comment has been flagged by the community. Click here to show it

    Yeah, that means you weren't censored because anybody can click on it and read your comment. The fact is that most of the time, I don't bother because you typically do not post anything that is worth bringing to the discussion at hand. Censorship means that I would not be able to read your comment, nor would I probably ever know that you made one. Get a dictionary, they help!

     

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  13.  
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    John Fenderson (profile), Sep 25th, 2013 @ 11:33am

    Re: Please stop abusing the R word

    Crade is correct, humans do not have races at all in the proper sense. However, I agree with you about the use of the word "racist" anyway. That's why I prefer the word "bigoted".

     

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  14.  
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    Anonymous Coward, Sep 25th, 2013 @ 11:34am

    Re: Re: Please stop abusing the R word

    Human race is ok, I guess, but I prefer watching a car race.

     

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    out_of_the_blue, Sep 25th, 2013 @ 11:40am

    Geez. Can't believe you don't see the "among friends in a bar" principle here:

    "the words he wrote, in what he imagined to be a close discussion among like-minded persons"

    One's UN-publshed statements being PUBLICLY PUBLISHED without permission is a VERY DIFFERENT CASE, Mike. I'm sure that even YOU have spoken words in private that you don't want to see published all over the world, words that might subject you to attacks.

    And YET AGAIN: YOU CAN'T CENSOR YOURSELF! What's being demanded to be taken down is his OWN words! NOT THE WORDS OF OTHERS! That's just plain NOT censorship.

    That being the case, I see this DMCA claim as entirely valid. YOUR whole basis is the assertion that: "Of course, S4SS has the right to repost his opinions, especially in the manner in which the organization did so." -- Does it really have the right to expose him to potential violence as the lawyer argues? -- Again, I'd say NOT.

    There's no real right of others to publish your words, is there? Even if you argue that there IS, that can't possibly be judged to outweigh the speakers rights. [HEDGE: public persons who know they're always in the spotlight.]

    You are just insane on trying to bring down copyright and DMCA.

    Oh, and there's yet more: those who now claim to have been censored are just whining that the necessary presumption in this case is that they do NOT have the right to publish those words, besides the sheerly practical fact that their own stubbornness on the point resulted in the DMCA bludgeon being brought in. (Oh, I'm sure to get dolts leaping onto "bludgeon", but I'll leave it.)

     

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  16.  
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    Ninja (profile), Sep 25th, 2013 @ 11:41am

    Re: Re: Please stop abusing the R word

    Prejudicial? Does the word exist? I thin both racism and bigotry fit in the definition of prejudice, no?

     

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  17.  
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    John Fenderson (profile), Sep 25th, 2013 @ 11:45am

    Re: Re: Re: Please stop abusing the R word

    yes, but "prejudicial" has different connotations and doesn't imply unfairness. It's not really synonymous with "bigoted".

     

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  18.  
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    crade (profile), Sep 25th, 2013 @ 11:49am

    Re: Re: Re: Re: Please stop abusing the R word

    "Prejudiced" doesn't imply unfairness, it states unfairness. Prejudiced and bigoted are synonymous.. Prejudicial I think refers to something that causes prejudice.

    It's all semantics anyway. Potaeto Potawto..

     

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  19.  
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    Anonymous Coward, Sep 25th, 2013 @ 11:50am

    "sandnigger" is not criticism of Islam, it's outright racism.

     

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  20.  
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    Shadow Dragon (profile), Sep 25th, 2013 @ 11:51am

    Re: Geez. Can't believe you don't see the "among friends in a bar" principle here:

    Gee,Out of Mind. Are you that senile and babble incoherent you sound like a old guy going "get off my law"

     

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  21.  
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    Chris Brand, Sep 25th, 2013 @ 11:51am

    Oliver/Olivier

    "Olivier Janssens (though, in the DMCA notice, Obenberger refers to him as Oliver, not Olivier).

    [...]One of those whose comments were called out was (you guessed it) Oliver Janssens."

    Apparently the Oliver/Olivier thing is an easy mistake to make. :-)

     

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  22.  
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    Anonymous Coward, Sep 25th, 2013 @ 11:52am

    Re: Geez. Can't believe you don't see the "among friends in a bar" principle here:

    blah blah blah more insane rabble. Does the person in whatever they stated say that these words i stated are copyrighted and cannot be used elsewhere without my permission, if not then what he stated cannot be copyrighted.

     

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  23.  
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    Ninja (profile), Sep 25th, 2013 @ 11:53am

    Re: Geez. Can't believe you don't see the "among friends in a bar" principle here:

    Even considering what you said copyright is not the 'tool' he should be using to challenge the disclosure of his "private" comments. I'm using private very, very loosely here (as in it doesn't seem his comments were private but then again the definition on your dictionary may be different). And even if we consider copyright to be the right tool there's the undeniable fact that the ENTIRETY of the sites were taken down because of one moron effectively preventing the community from making use of it. I consider that to be akin to censoring. If you don't like it exposed don't say it or say it in a very private place with a very clear contract preventing any disclosure. Then sue if anything is made public. Copyrights are not meant to be used for this.

     

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  24.  
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    John Fenderson (profile), Sep 25th, 2013 @ 11:54am

    Re: Geez. Can't believe you don't see the "among friends in a bar" principle here:

    One's UN-publshed statements being PUBLICLY PUBLISHED without permission is a VERY DIFFERENT CASE


    First, they weren't unpublished. They were published with a limited distribution. But even if they were unpublished, that in no way changes the fact that this is an outright, blatant abuse of copyright.

    What's being demanded to be taken down is his OWN words! NOT THE WORDS OF OTHERS! That's just plain NOT censorship.


    What's being demanded to be taken down is the speech of others. Quoting another person's words in order to comment on them is essential in order to make the comment make sense. You cannot forbid one without forbidding the other.

    Further, quoting other people's speech for the purposes of criticism and education is the essential heart of why there exists fair use provisions at all.

    What you are arguing here is nothing less than saying that there should be no such thing as fair use, period. If that's your opinion, you should just say so.

    There's no real right of others to publish your words, is there? Even if you argue that there IS, that can't possibly be judged to outweigh the speakers rights.


    Yes, there is such a real right. And yes, of course there are circumstances where that right trumps that of the original speaker. For all its faults, copyright law recognizes the truth of both of those assertions.

    You are just insane


    You're projecting again. You really should keep an eye on that.

     

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  25.  
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    Rikuo (profile), Sep 25th, 2013 @ 11:58am

    Re: NOR could Techdirt's "report" button, eh?

    Click here to show it Click here to show it Click here to show it Click here to show it Click here to show it


    Got it yet?

     

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  26. This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Sep 25th, 2013 @ 11:58am

    Re: Re: NOR could Techdirt's "report" button, eh?

    I'm repeating a somewhat extended rebuttal that technically is a bit off, but in any case I'm not limited to Mike's topic or framing:
    @ "Techdirt has no legal or moral obligation to allow you to use the comments service as a platform for your self-expression."
    Pffft! This assertion again. Since you want to go all legalistic:

    Techdirt, a business, for reason of gaining money by selling on your information makes a machine publicly available for anyone to use. Users are unable to opt-out of information being collected even by mistaken visit, so there can be no knowing agreement; though it's a known general hazard of the net, no business actually has any right to do it. Users do not give up any rights to access a mere machine; it's Techdirt that gives up exclusivity by deliberately making the machine publicly available. There's no agreement because nothing is signed, nor even required acknowledged, and no exchange of consideration. Access to such "free" business services is regulated by public accommodation laws (as for a physical bulletin board). Techdirt gives no notice that it reserves any rights such as to abitrarily refuse service. Content is regulated only by common law terms. The business has common law liability for what's posted. Definitely no one is obligated to only comment so as to promote the business. While users remain within common law terms, arbitrary blocking of access to the machine is dicey at best.

    Common law does not change just because "it's on the net". Businesses are PUBLIC ACCOMMODATIONS, they are NOT free to refuse service in most cases, such as on skin color.

    Oh, and this "community" bit is just another dodge by Mike to try and avoid responsibility while still getting money in a PUBLIC market. We don't actually know WHO is doing the alleged clicking, nor the numbers of real clicks required, and so on. Since those details aren't published or verifiable, I'm free to assume that it's unfair at best, WELL supported by the fact that quite vile comments here are not censored, while my mild ones are, SO it's evident that I'M being censored.

    You're just trying to excuse censorship with sophistry.

    In short: Just because some bozo writes some "terms" on a web page doesn't obligate or limit anyone.

     

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  27.  
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    Anonymous Coward, Sep 25th, 2013 @ 12:00pm

    Re: Re: NOR could Techdirt's "report" button, eh?

    The Techdirt community comment moderation system could use some work, though.

    Here are a couple of bizarre things I have seen happening:

    - An insightful comment getting reported
    - A reported comment as the "First word"
    - A perfectly valid comment, with proper grammar and good points, but that was against the "group-think" being reported.

    I "like" Techdirt, but the thing is, the Techdirt community is extremely hostile to anyone that doesn't just nod or sing the right song (I'm not talking about outright trolls or people that just insult everyone...see the anomalies I pointed out above). And the way things are set up, those "outsiders" will be quickly "reported" and pushed out of sight, without any sort of appeal. Sure, you can argue that people can just click to reveal the comment, but how many people actually do that? Especially if they are using NoScript and don't want to open a massive security hole by unblocking a ton of stuff?

    My point is that it probably wouldn't hurt to have a way to promote comments that were improperly "reported" back to "normal" status. Or some sort of score system.

     

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  28.  
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    Mike Masnick (profile), Sep 25th, 2013 @ 12:04pm

    Re: Oliver/Olivier

    Apparently the Oliver/Olivier thing is an easy mistake to make. :-)


    Hahah. True. Though I'm not paid by the guy to represent him.

     

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  29.  
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    jupiterkansas (profile), Sep 25th, 2013 @ 12:08pm

    Olivier Janssens, you've got a phone call from a Mrs. Streisand.

     

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  30.  
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    Anonymous Coward, Sep 25th, 2013 @ 12:08pm

    Re: Re: Re: NOR could Techdirt's "report" button, eh?

    "You're just trying to excuse censorship with sophistry."

    That's hilarious and rich coming from someone who continuously plagues this site with their sad excuses and reasons which easily get disproved by people on this site. Guess it has to be the likes of a sadomasochist to ignore the truth and keep continuing with the same sad excuses and reasons each time.

     

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  31.  
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    Rikuo (profile), Sep 25th, 2013 @ 12:09pm

    Re: Re: Re: NOR could Techdirt's "report" button, eh?

    If the Techdirt community is hostile to anyone who doesn't sing the right song, then how come a reported comment got First Word? That would require a TD Insider, like myself, who pays money into the business and who is by definition, a member of the inside community.

     

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  32.  
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    Jamie, Sep 25th, 2013 @ 12:09pm

    Re: Please stop abusing the R word

    Making disparaging comments about Islam is not racist

    It's also not islamophobic cause that just doesn't exist.

     

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  33. This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Sep 25th, 2013 @ 12:09pm

    Re: Re: Geez. Can't believe you don't see the "among friends in a bar" principle here:

    Empty contradiction.

    Geez. Can't believe you don't see the "among friends in a bar" principle here. Just answer the question whether you want ALL of your words in a supposedly limited gathering publshed. Ever discussed buying illegal drugs? Musing you might kill the old ball and chain? Confessed to stealing toilet paper from the company?

    I say the principle of one NOT being published everywhere outweighs the rights of others.

    There's NO actual harm done if these particular words are taken down -- they are NOT unique or valuable -- and there IS possibility of avoiding harm, not just to the speaker.

    Consider if were your own hasty words and and you might agree.

     

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  34.  
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    ottermaton (profile), Sep 25th, 2013 @ 12:10pm

    Re: Re: Please stop abusing the R word

    If you want to get technical there is only the human race anyway ...

    No, Homo sapiens (i.e. humans) are a species which contain several races (which are normally called sub-species in other contexts (like sub-species of tigers, for example)).

     

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  35.  
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    Rikuo (profile), Sep 25th, 2013 @ 12:11pm

    Re: Re: Re: NOR could Techdirt's "report" button, eh?

    There's a huge difference between a physical business and an entity existing entirely in cyberspace. Might want to look it up sometime. Techdirt is under no obligation to even HAVE a comments section at all. Nor to allow you in either.

     

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  36. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Sep 25th, 2013 @ 12:14pm

    Re: Re: Geez. Can't believe you don't see the "among friends in a bar" principle here:

    @ "Shadow Dragon"
    Gee,Out of Mind. Are you that senile and babble incoherent you sound like a old guy going "get off my law"


    Once again you demonstrate inability to deal with the topic and only capable of vague ad hom. Typical Techdirt Troll.

     

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  37.  
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    Anonymous Coward, Sep 25th, 2013 @ 12:14pm

    Re: Please stop abusing the R word

    Well, since the quoted conversations included hateful comments about Muslims, as well as hateful comments about people of Middle Eastern descent, and made it clear they considered the two (Muslim and Middle Eastern) to be analogous, then racist is still accurate. I will admit, though, that describing them as both as racist and bigoted would more completely describe them

     

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  38.  
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    Rikuo (profile), Sep 25th, 2013 @ 12:15pm

    Re: Re: Re: NOR could Techdirt's "report" button, eh?

    "You're just trying to excuse censorship with sophistry."

    Censorship involves the deletion of speech by the government whether directly or indirectly.
    Guy makes an ass of himself in a discussion. Other persons quote his comments in another discussion. This is legal fair use. Guy proceeds to hire a lawyer who in the opening sentences ADMITS this isn't to control his client's copyrights, but to silence speech. The speech is silenced by the hosting company only because they are fearful of being dragged into court in a copyright lawsuit: by having the DMCA invoked, they feel their best option is to delete the speech so as to protect themselves. If there were no DMCA, a copyright law, they wouldn't have bothered.
    No matter which way you look at it, this is a copyright law being abused to not just silence speech but to shut down ENTIRE sites when the lawyer filing the notice admits it has nothing to do with copyright.

     

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  39.  
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    Anonymous Coward, Sep 25th, 2013 @ 12:15pm

    Re: Re: Re: NOR could Techdirt's "report" button, eh?

    No one is saying you're giving up a right. You don't start with that right in the first place. The owner and operator of a website has the right to control everything on the site. The list of rights you have to their site are the ones that are explicitly granted to you by them.

    What's more your entire diatribe is completely off-base. You have been denied nothing. Your comments require an extra click. That's it. Nothing is being denied. You're still here. You're still talking. Service isn't being 'denied' you when 'click to show comment' appears over your post.

    If you were blocked from using the site it certainly wouldn't be 'arbitrary.' The assertion that reporting your posts is somehow similar to denying service based on skin color is abjectly disgusting and frankly might mark a new low even for you (although in fairness I haven't seen everything you've written so I could be wrong).

    Yes, you're 'free to assume' bad faith but no one cares that you feel free to do so as your assumptions hold no weight.

    In short: the only 'rights' you hold here are the rights explicitly granted to you. It's not your site.

     

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  40.  
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    Rich, Sep 25th, 2013 @ 12:17pm

    Re: Re: Re: Please stop abusing the R word

    That's completely wrong. There are no "races" underneath human. For one thing, a sub-species is not a race. For another, there are no sub-species of homo sapiens.

     

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  41.  
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    Anonymous Coward, Sep 25th, 2013 @ 12:17pm

    Re: Re: Re: Re: NOR could Techdirt's "report" button, eh?

    Even a physical business has more rights than he's imagining. Under his theory being closed would be illegal.

     

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  42.  
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    Rikuo (profile), Sep 25th, 2013 @ 12:17pm

    Re: Re: Re: Geez. Can't believe you don't see the "among friends in a bar" principle here:

    We all have words spoken we don't want published yes, BUT USING COPYRIGHT LAW is totally the wrong method to go about it.

     

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  43.  
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    John Fenderson (profile), Sep 25th, 2013 @ 12:18pm

    Re: Re: Re: Please stop abusing the R word

    Not so, at least according to the accepted standards of taxonomy. There are subspecies of Homo Sapiens, but they don't correspond to what people call "races".

    All humans alive today belong to the same subspecies (Homo sapiens sapiens). We are the descendants of an earlier, distinct subspecies (Homo sapiens idaltu).

     

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  44.  
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    Anonymous Coward, Sep 25th, 2013 @ 12:18pm

    Re: Re: Re: NOR could Techdirt's "report" button, eh?

    The first two bullet points seem to directly contradict your assertion. The last sounds like a unicorn.

     

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  45.  
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    That One Guy (profile), Sep 25th, 2013 @ 12:19pm

    Re: Re: Re: NOR could Techdirt's "report" button, eh?

    All three of those are very simply explained as consequences due to the poster's reputation. When you've got someone with such a long history of trollish, spammish, insult and ad hom filled comments, a lot of people don't even bother to read the posts anymore, and just click 'Report' as soon as they see the name.

    While unfortunate, as blue does occasionally post something insightful, it is entirely his/her fault for destroying their reputation to such a degree that people don't even bother to listen to what they are saying anymore, and simply assume it's more like the rest.

     

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  46.  
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    Anonymous Coward, Sep 25th, 2013 @ 12:19pm

    remove person?

    "If you continue this, I will have no other choice than to continue protecting my person by having it removed"

    I'm sure removing his person would work for most of us, not sure it's that good for him.

     

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  47.  
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    Anonymous Coward, Sep 25th, 2013 @ 12:20pm

    Re: Re: Re: Geez. Can't believe you don't see the "among friends in a bar" principle here:

    "Once again you demonstrate inability to deal with the topic and only capable of vague ad hom. Typical Techdirt Troll."

    And judging by the amount of your ad homs etc. that you say about Mike and others on this site then there is no way that anyone is going to knock you off that No.1 Techdirt Troll position that you currently hold during this decade.

     

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  48.  
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    John Fenderson (profile), Sep 25th, 2013 @ 12:21pm

    Re: Re: Re: Geez. Can't believe you don't see the "among friends in a bar" principle here:

    What Rikuo said. Also,

    There's NO actual harm done if these particular words are taken down -- they are NOT unique or valuable


    According to you, but fortunately, you are not the one the one who gets to decide what's "unique or valuable", and "unique or valuable" is not the requirement for something to be considered fair use.

     

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  49.  
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    Anonymous Coward, Sep 25th, 2013 @ 12:23pm

    Re: Please stop abusing the R word

    The people making the comments appear to think it's a race.

     

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  50. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Sep 25th, 2013 @ 12:25pm

    Re: Re: Re: Re: NOR could Techdirt's "report" button, eh?

    @ "Rikuo":
    There's a huge difference between a physical business and an entity existing entirely in cyberspace.


    No, there's NOT in the stated context. That's just a phony assertion that some power-crazed nerds make.

    You missed this:
    In short: Just because some bozo writes some "terms" on a web page doesn't obligate or limit anyone.


    Now, since I've driven the comments here to where I wish, DOMINATED you all, you're left flailing with sheer gainsaying, I concede to your superior numbers and leave you to your yapping.

    Just remember this: no number of ankle-biters can harm a tiger; they can do no more than annoy it into leaving.

    [Note to the sensible: This part just for fun; I'm actually interested in arguing but THEY aren't up to it and can't do it in civil manner, either. Hope it's not too subtle for them...]

     

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  51.  
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    S. T. Stone, Sep 25th, 2013 @ 12:26pm

    Re: Re: Re: NOR could Techdirt's "report" button, eh?

    You're just trying to excuse censorship with sophistry.

    No, I fear you have me all wrong.

    I abhor censorship. I dont use the word hate often these days, but I hate the very idea of censorship. Censorship robs us of the opportunity to discuss ideas, trade information, and generally become a better society.

    But Techdirt doesnt censor your comments. I can click that little grey line of text and read your comments plain as day and if/when Techdirt admins delete your comments, they have no legal obligation to restore them or allow you to make further comments.

    And the same principle applies to my comments as well.

    And it applies just as much to Techdirt as it does to YouTube, 4chan, Tumblr, Reddit, and pretty much any website that allows user-generated comments: business or not, they have no legal obligation to allow you to use their comments section as your own personal soapbox.

    You have a problem with the commenter community hiding your comments on a regular basis (often by your name alone). Youve made that clear. Sowhat do you plan to do about it other than whine about how everyone labels you a troll and claim the law gives you the right to force Techdirt to print your views?

    I think youd do right by yourself if you examined how you act in these comments sections and started working towards fostering actual, relevant discussion of the topic at hand.

    Because your Google conspiracy theories and ad hominem attacks on Techdirts writers and regular commenters dont seem to strike a chord with everyone.

    (Feel free to attack me all you want, though. Worst youll get from me is the occasional foul-mouthed snapback when I feel cranky.)

     

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  52.  
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    Anonymous Coward, Sep 25th, 2013 @ 12:29pm

    OOTB: GUISE its just an "anomaly"

     

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  53.  
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    Anonymous Coward, Sep 25th, 2013 @ 12:29pm

    Re: Re: Re: Re: Re: NOR could Techdirt's "report" button, eh?

    "Now, since I've driven the comments here to where I wish, DOMINATED you all, you're left flailing with sheer gainsaying, I concede to your superior numbers and leave you to your yapping."

    Actually you haven't dominated anyone on this site but it is you that is being dominated by others on this site when your posts get reported and hidden by the community.

     

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  54.  
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    Anonymous Coward, Sep 25th, 2013 @ 12:29pm

    Re: Re: Re: Geez. Can't believe you don't see the "among friends in a bar" principle here:

    Where can I read case law on the "among friends in a bar" principle? There isn't any? Why not? Because it doesn't exist and is just a social contract that holds no legal weight? Then why was little boy blue pontificating on techdirt about it as if there was...OHHHHHHHHH!

     

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  55.  
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    S. T. Stone, Sep 25th, 2013 @ 12:30pm

    Re: Re: Re: Re: NOR could Techdirt's "report" button, eh?

    Its kinda sad, too. OOTB does occasionally make a good point, but then drowns said point in a sea of Google conspiracy theories, ad hominem attacks, and copyright maximalist rhetoric.

    If OOTB would tone that down a bit and just present their arguments without the insanity, theyd probably have a far better reputation as (at the least) a devils advocate type of commenter.

     

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  56.  
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    John Fenderson (profile), Sep 25th, 2013 @ 12:33pm

    Re: Re: Re: Re: Re: Please stop abusing the R word

    Being the geek that I am, I had to look it up. The most common usage of "prejudicial" means "harmful or detrimental". The secondary use is "causing or tending to cause prejudice".

     

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  57.  
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    Dan T., Sep 25th, 2013 @ 12:33pm

    Re: Re: Re: Geez. Can't believe you don't see the "among friends in a bar" principle here:

    When the guy has to pay damages and legal fees in a counterclaim against a frivolous DMCA action, based on your bogus legal advice, will they have a case to sue you for those damages?

     

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  58.  
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    Rikuo (profile), Sep 25th, 2013 @ 12:36pm

    Re: Re: Re: Re: Re: NOR could Techdirt's "report" button, eh?

    When it comes to private property being used to make speech, the owners of that property (Mike Masnick and Floor64 in this case) can and are able to dictate what speech they want. For you to say otherwise is to say that THEY don't have free speech rights.
    If you want to confuse cyberspace with physical again, then see what happens if you were to, I dunno, go to Mike's house, and demand to stand on his roof with a megaphone spewing forth your usual bullshit. He'd have every right to call the police and have you arrested.

    Anyway, the non-discrimination laws you seem to be invoking here DO NOT APPLY to you. They are for things like gender, race, religion etc. If Mike were to ban you, it would not be for those things but for you being a whiny brat who constantly screams and shouts that he's correct, he's "won" etc.

     

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  59.  
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    Anonymous Coward, Sep 25th, 2013 @ 12:40pm

    Re: Re: Re: Re: Re: NOR could Techdirt's "report" button, eh?

    You seem to be continuing to labor under the delusion that you start with full rights to someone else's machine. That's not the way it works in the real world either. In the real world you start with zero rights to someone else property or resources. A limited set are granted to you by the owner. Even a public store front has a right to remove trespassers from their property. Likewise a website runner has a right to block someone from using their site. What is more that's not even remotely what is happening to you when your comments are reported. You still enjoy the same access and ability to submit comments to the site as the rest of us. Obviously they would be well within their rights to block you from doing either though and it wouldn't be arbitrary.

    If by "DOMINATED" you mean made up an insane legal theory then ran for the hills while everyone pointed out how insane it was with your fingers in your ears ludicrously reassuring yourself that you're 'a tiger' at the top of your lungs then sure.

     

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  60.  
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    S. T. Stone, Sep 25th, 2013 @ 12:41pm

    Re: Re: Re: Re: Re: Re: NOR could Techdirt's "report" button, eh?

    And non-discrimination laws for physical businesses and such dont really apply to behavior. If a gay man walks into a store and punches the owner, the owner has every right to toss the gay man out (and have him arrested for assault, to boot). The owner would have punished the gay man for his assault, not for his sexual orientation.

     

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  61.  
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    Rikuo (profile), Sep 25th, 2013 @ 12:42pm

    For the intelligence-challenged (three guesses as to who I mean) there's a difference between Bluehost deciding what speech they want spoken using their equipment, thus deleting speech they don't want...and deleting speech based on fears of copyright lawsuits. One is doing what you want using your property, the other is silencing speech because you fear being dragged into a courtroom and having the government enact punishment against you based on the speech of third parties.

     

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  62.  
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    Gwiz (profile), Sep 25th, 2013 @ 12:42pm

    Re: Re: Re: NOR could Techdirt's "report" button, eh?

    Common law does not change just because "it's on the net"...



    This seems to be an argument that Blue flip-flops on depending on what he is arguing.

    Case in point:

    This comment yesterday where Blue argues that the tool provider is liable for the user's actions while ignoring hundreds of years of common law that state otherwise.


    Can you try to stay consistent with your own arguments for at least a day or two, Blue?

     

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  63.  
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    DMC, Sep 25th, 2013 @ 12:55pm

    I'm too busy, but here...

    Attorney Registration and Disciplinary Commission for the Supreme Court of Illinois (assuming that is where Obenberger is registered)
    http://www.iardc.org/htr_filingarequest.html

    Maybe a concerted effort to submit disciplinary complaints against attorneys who knowingly abuse the DMCA, for censorship or otherwise, might get somebody's attention.

     

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  64.  
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    Josh in CharlotteNC (profile), Sep 25th, 2013 @ 1:25pm

    Re: Re: Re: Re: Re: NOR could Techdirt's "report" button, eh?

    You're making the assumption that OOTB is trying to add to the discussion in his own misguided way.

    He's not. He is trolling and intentionally trying to disrupt the conversation. That's why nearly all of his comments get hidden, because most of the community has wised-up to his methods.

    If he actually wants to have a conversation about the merits of any particular viewpoint, he can do so by stopping the trolling and spamming. Since he's poisoned his name so badly, all he's gotta do is stop using the one we skip over as soon as we see the author.

     

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  65.  
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    Anonymous Coward, Sep 25th, 2013 @ 1:32pm

    Re: Re: Re: NOR could Techdirt's "report" button, eh?

    love how you bring up common law when you have already demonstrated your poor understanding of the subject, even going so far as to repeat inaccuracies after others have demonstrated them to be such

     

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  66.  
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    Gwiz (profile), Sep 25th, 2013 @ 1:48pm

    Re: Re: Re: Re: Re: NOR could Techdirt's "report" button, eh?

    Now, since I've driven the comments here to where I wish, DOMINATED you all, you're left flailing with sheer gainsaying,...

    Too funny, Blue. You really have a distorted view of reality, don't you.



    ...I concede to your superior numbers and leave you to your yapping.

    Translation: I'm getting my ass handed to me on a platter by people with superior intellects, so I'm running away now.



    Just remember this: no number of ankle-biters can harm a tiger; they can do no more than annoy it into leaving.

    Huh, don't think I've ever seen a tiger running away with it's paws over it's ears yelling "Nah, nah, nah, I can't hear you".



    [Note to the sensible: This part just for fun; I'm actually interested in arguing but THEY aren't up to it and can't do it in civil manner, either. Hope it's not too subtle for them...]

    Bullshit, Blue. You are one not interested in any sort of debate. You run every time anyone counters your statements. You are the one who starts in with the ad homs and uncivil tones on just about every comment. Basically, you can't take what you dish out.

     

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  67.  
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    Shadow Dragon (profile), Sep 25th, 2013 @ 1:53pm

    Re: Re: Re: Geez. Can't believe you don't see the "among friends in a bar" principle here:

    Gee..out of Mind, doesn't like when he gets a taste of his own medicine.Typical Troll.

     

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  68.  
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    JMT (profile), Sep 25th, 2013 @ 2:18pm

    Re: Re: Geez. Can't believe you don't see the "among friends in a bar" principle here:

    "What you are arguing here is nothing less than saying that there should be no such thing as fair use, period. If that's your opinion, you should just say so."

    That's exactly what he believes and has stated before.

     

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  69.  
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    jupiterkansas (profile), Sep 25th, 2013 @ 2:28pm

    Re: Re: Re: Re: NOR could Techdirt's "report" button, eh?

    He's very consistent. He's against whatever the article is about. He's only here to hate.

     

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  70.  
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    Shadow Dragon (profile), Sep 25th, 2013 @ 2:30pm

    Re: Re: Re: Re: Re: NOR could Techdirt's "report" button, eh?

    More like attention,why can he do something constructive like watching porn.

     

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  71.  
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    Nicci Stevens, Sep 25th, 2013 @ 2:31pm

    Think of it this way...

    If I were to take a soap box and stand in your living room espousing the virtues of blood sausage and you did not like that you have every right to usher me out the door (including a few unkind words should you so desire.) That is not censorship it is you protecting your space. If I were to post a comment to this story about blood sausage, the operators of this site have every right to usher me out the door as well (including a few unkind words should they so desire.) That is still not censorship because they are protecting their site's reputation. This is called operating a business.

    If, however, PETA were to come along and demand under DMCA or other law, that my comments to be taken down because they do not like blood sausage then there is government involvement, at least at the periphery, and thus it becomes censorship.

    This really isn't rocket science.

     

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  72.  
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    jupiterkansas (profile), Sep 25th, 2013 @ 2:32pm

    Re: Re: Re: Re: Re: Re: NOR could Techdirt's "report" button, eh?

    It doesn't help when all his comment's replies are in plain view. They should all be hidden, or shoved to the bottom of the pile so the relevant comments come up first. That's becoming the standard procedure these days on the rest of the internet. Be nice to see it on Techdirt too. Then blue can scream at the bottom of the screen all he wants.

     

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  73.  
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    jupiterkansas (profile), Sep 25th, 2013 @ 2:33pm

    Re: Re: Re: Re: Re: Re: NOR could Techdirt's "report" button, eh?

    True. He probably thinks Techdirt has made him famous.

     

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  74.  
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    Anonymous Coward, Sep 25th, 2013 @ 5:03pm

    Dey took muh jerb.

    Not gonna lie I really, and I mean REALLY hate Goobacks.

     

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  75.  
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    Anonymous Coward, Sep 25th, 2013 @ 5:45pm

    Anyone else remember the sheer level of stupidity of "journo" Teri Buhl? For fuck's sake, you're not writing a groundbreaking BBS novel. Shutting down a site for a quote under the copyright system is about as muleheaded and stupid as you can get.

    out_of_the_blue just hates it when due process is enforced.

     

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  76.  
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    Anonymous, Sep 25th, 2013 @ 6:50pm

    Re: Oliver/Olivier

    Olivier was a famous actor. Oliver is a cute orange kitten in a Disney cartoon.

     

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  77.  
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    Anonymous Coward, Sep 25th, 2013 @ 6:59pm

    Funny shit. lol

     

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  78.  
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    btr1701, Sep 25th, 2013 @ 7:21pm

    Re: Re: Please stop abusing the R word

    > If you want to get technical there is only the human race anyway

    Actually, if you want to get technical, humans are a species, not a race.

     

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  79.  
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    btr1701, Sep 25th, 2013 @ 7:26pm

    Re: Please stop abusing the R word

    > Making disparaging comments about Islam is not racist,
    > due to the very simple fact that Islam is not a race. Islam
    > is a religion, calling anti-Islamic speech "racist" not only
    > makes you look ignorant, but dilutes the term and makes
    > it feel meaningless.

    Well said. This is just like the idiotic news report I saw a few nights ago claiming someone was being racist toward the gays in the community.

    Who knew that "gay" has now become a separate race?

     

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  80.  
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    Anonymous Coward, Sep 25th, 2013 @ 10:43pm

    Re: Re: Please stop abusing the R word

    "Gay" isn't a separate race, but going by how people are so quick to jump to their defense, I often confuse them for an endangered species.

     

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  81.  
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    PaulT (profile), Sep 26th, 2013 @ 1:28am

    Re: Re: Re: NOR could Techdirt's "report" button, eh?

    "- An insightful comment getting reported"

    What's your solution to this? I'm not sure of the thresholds for each status, but if it's low enough there could easily be situations where a troll uses alts to report something the community thinks is genuinely insightful, or vice versa. Or, even a situation where some people genuinely feel that the comment is insulting/racist/etc., but others genuinely feel that it's insightful. You could ask for a more granular approach (e.g. separate buttons for spam, troll and racist/sexist/etc.) but I'm not sure of any elegant solution.

    As it is, that status means that some find it insightful, others felt the need to report, which can honestly happen.

    "- A perfectly valid comment, with proper grammar and good points, but that was against the "group-think" being reported."

    Citation needed. Probably one of the usual trolls getting reported out of habit on the one occasion where they didn't lie or name call, but I'm willing to evaluate whatever examples you have. In my experience, the claims of that happening are usually people who come right out of the gate with a false accusation that's been debunked hundreds of times and people just can't be bothered to correct the same lies yet again.

    "I "like" Techdirt, but the thing is, the Techdirt community is extremely hostile to anyone that doesn't just nod or sing the right song "

    Again, examples. I find the community very accepting to people who honestly have a different opinion, and I've even seen ootb get insightful votes without being reported. I'll admit to usually agreeing with this site, but I'm open to any non-moron attempt to disagree - cite where this hasn't happened and maybe I can explain why. I can't speak for everyone here but I'm happy to debate anything from differing points of view, so long as those are honestly held points of view and not trolling (e.g. discussing why some people pirate rather than accusing everyone who questions the status quo of themselves being a pirate).

    "Especially if they are using NoScript and don't want to open a massive security hole by unblocking a ton of stuff?"

    Since I don't use it, I'm curious - does using NoScript remove the hiding or just the option to unhide? I would have assumed the former.

    "Or some sort of score system."

    On forums I've seen where that's implemented, it usually doesn't turn out well, tbh.

     

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

  82.  
    icon
    Gwiz (profile), Sep 26th, 2013 @ 7:33am

    Re: Re: Re: Re: NOR could Techdirt's "report" button, eh?

    Since I don't use it, I'm curious - does using NoScript remove the hiding or just the option to unhide? I would have assumed the former.

    NoScript removes both. No buttons and all the reported comments are expanded.

    I use it to reduce the load time of the video ads and whatnot, but specifically allow techdirt.com so I can use the buttons and the hidden comments stay hidden.

     

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

  83.  
    icon
    PaulT (profile), Sep 26th, 2013 @ 7:57am

    Re: Re: Re: Re: Re: NOR could Techdirt's "report" button, eh?

    "NoScript removes both. No buttons and all the reported comments are expanded."

    Yeah, that's what I thought. Which makes the quoted comment rather curious. It sounds like NoScript users would only open themselves up to problems if they unblocked the report option - not the read option, as that would be available to them by default. i.e. the opposite of the complaint.

     

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

  84.  
    identicon
    Dave, Sep 26th, 2013 @ 10:32am

    Re: NOR could Techdirt's "report" button, eh?

    Can somebody translate this nonsense into something readable? Looks like a combination of English and rubbish.

     

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

  85.  
    icon
    John Fenderson (profile), Sep 26th, 2013 @ 11:20am

    Re: Re: Re: Please stop abusing the R word

    True, but it's reasonable to use the terms interchangeably in colloquial speech, as there is only one subspecies (race) of humans on the planet right now. So functionally, if you refer to the "human race," you are also referring to the human species.

     

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

  86.  
    identicon
    Anonymous Coward, Sep 26th, 2013 @ 12:26pm

    This is good stuff

    Mike, do you think you could whip up a similar letter and send it to the people who host the MIAA and RIAA sites? If it worked for Obenberger it should work for you.

     

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


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