Two Dozen Texas Cities Latest To Try And Push A Netflix Tax
from the you-owe-me-money-just-because dept
Hungry to boost municipal budgets, a growing roster of states and cities have spent the last five years or so trying to implement a tax on Netflix, Hulu, and other streaming services.
Sometimes (like in Chicago) this has involved expanding an existing amusement tax (traditionally covering book stores, music stores, ball games and other brick and mortar entertainment) to online streaming.
Other times this has involved trying to leverage existing cable TV laws or ordinances to try extract their pound of flesh from Netflix. In both, it involves taking rules written for the physical world, and applying them to the internet. Often haphazardly.
That’s what’s been happening in Texas, where nearly a dozen different towns have joined forces to sue Netflix, Disney, and Hulu for failure to pay millions in franchise fees:
The cities are alleging that the streamers should be paying annual franchise fees back to 2007, as they said is required by the Public Utility Regulatory Act (PURA). Those are the fees that cable/broadband operators provide that go toward city services.
The Texas law allows cable and video providers to deliver cable TV via publicly owned utility poles on public land in exchange for remitting 5% of gross revenue to the municipality. So the argument has generally been because Netflix bits technically travel over those same lines somewhere in the tangle of data flowing over them, they should also be responsible for paying that tax.
Cable TV providers generally have a physical presence in the towns and cities they serve. Employees live in these areas, climb physical city poles in these areas, and do tech support calls in these areas. By contrast, a company like Netflix may have little to no real physical presence in a town (outside of maybe some CDN hardware at an internet exchange point or regional ISP), so demanding they pay a tax under laws designed decades ago for different technologies often proves logically and legally unsound.
Regardless, Texas towns and cities are hopeful the law doesn’t care about all that, and they can just get what they view as a lucrative windfall, grabbing money they don’t really deserve for services they don’t actually have any meaningful authority over.
Filed Under: cable tv, competition, franchise fee, Hulu tax, netflix tax, streaming, taxation, texas, video
Companies: netflix
Comments on “Two Dozen Texas Cities Latest To Try And Push A Netflix Tax”
Netflix could call this bluff by saying “fine, we’ll stop serving your entire state”. That won’t happen (Netflix can’t afford to lose that many subscribers), but I’d love to see it happen regardless.
Re:
This often should be the response to avoid the 100,000 other little shitholes who want their “fair share”.
I think they should alert users in TX that because of the law they now get to pay a surcharge to cover these costs, and each city that joins the bandwagon means its going up that much more.
They they should sue because they aren’t forcing every other internet company to pay because hey they are entertainment too and they use the lines just as much at Netflix does.
You wanna know what Abbott is really afraid of??
Parents who’s kids can’t play fortnite anymore & are bugging them to fix it.
Re:
“We regret to inform you that the City of [Austin, Houston, Dallas, Arlington, Abilene, Waco, Frisco, Plano, Carrollton, Garland, Mesquite, Sugar Land, Amarillo, Grand Prairie, Arlington] has forced us to impose a special surcharge for residents of those cities. This was not our decision and we are fighting to be able to bring you quality entertainment at a fair price. If you would like to dispute or comment on this surcharge, please contact your city council directly at xxx-xxx-xxxx.”
Re: Paper cut now vs lost limb later
Netflix could call this bluff by saying “fine, we’ll stop serving your entire state”. That won’t happen (Netflix can’t afford to lose that many subscribers), but I’d love to see it happen regardless.
I’d argue that they can’t afford not to do that, because as the link tax has shown when a company makes clear that if you push hard enough they’ll fold that idea will spread, and more and more governments(local or otherwise) will get in on it.
Losing the entire user base of texas until the government backs down would hurt the company to be sure but it would hurt a lot less than every state demanding that they are owed the same amount in order to get their cut from the company.
Re: Re:
Fair point. 👍
I wish they would charge for...
Faux Newz
OAN …oh yea, sorry OAN
Newsmax
Infowars
etc
Those peeps will divide themselves from their money for anything including Brooklyn Bridges.
An amusement tax! lol
I know what it is (I looked it up). But it just sounds so… so wrong.
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What if a Cable Company or a Phone Company is One's ISP?
Is there a pointer to proposed legislation or a proposed interpretation of an existing regulation.
The Internet is not magic. The Internet is just as physical as anything else in the universe.
Of course, Netflix et al. have a physical presence on any computing device on which it streams and thus in any town where the computing device is located.
The Internet exception is a crock! If the legislators, regulators, and Courts understood the technology, they would realize that existing statutes and regulations probably apply.
Re:
…fucking what
Re: WTAF?
This makes as much sense as saying that Target has a physical presence in a town that has no Target stores just because they deliver items ordered from their web site to that town. Or that casinos in Nevada have a physical presence in Utah just because people from Salt Lake City drive across the state line to gamble and take their winnings home with them.
Re: Re:
This makes as much sense as saying that Target has a physical presence in a town that has no Target stores just because they deliver items ordered from their web site to that town.
Shush, you. AT&T have enough bad ideas of their own.
Re:
Except not everything else in the universe is physical. Speech, dreams, ideas, abstract concepts, et al. are not strictly physical. Some physical things are ephemeral and temporary.
Re:
“The Internet is just as physical as anything else in the universe.”
Please take these bits into your hands and know that they might be a picture of me shaking my junk and flipping you off.
Idiot.
Re:
… said nobody with the slightest understanding of how internet or law works, ever, as proven by coming from the moron that doesn’t understand how twitter sends messages.
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Re: Re: What Does Toom1275 Know?
I have been working on Title 35 and Title 47 cases since the early 1980s.
I introduced students at Harvard to WWW technology in the early 90s and have been writing backends and frontends since the late 1990s.
If I am generous, I could while on serious drugs possibly convince myself that Toom1275 may have a confused understanding of the obsolete Twitter SMS service, but I doubt it.
Below is an argument that I recently offered in an ADA case. The argument also applies to the CRA. In both cases the argument applies to the temporary establishment or operation of a place of public accommodation for exhibition or for entertainment.
42 U.S. Code § 2000a is both broader and also narrower than 42 U.S. Code § 12181, but the differences are unimportant to the argument.
Internet exceptionalism is a crock, and Martillo v. Twitter will eventually wend its way to SCOTUS once again.
Perhaps Overly Verbose Statement of the Issue
Martinez v. Cot’n Wash, Inc., 2022 WL 3025828 (Cal. App. Ct. August 1, 2022) illustrates a problem of which I have apprised the Court of Appeals for the First Circuit. Until parties start to make use of experts, who can explain the technology and language of the Internet, cases like Martinez constitute cartoons or parodies.
Even if everyone uses or experiences a thing, everyone may not understand a thing. The archetypal example is gravity and falling objects. From Aristotle until Galileo, the average person completely misunderstood gravity and the law of falling objects.
42 U.S. Code § 12182 does not require that a place of public accommodation be permanent. Every Friday during the summer, a farmers’ market is set up next to the Ashmont T Station in Boston. This temporary food market is a place of public accommodation for sale of groceries and is subject to the ADA.
[I use such examples because I know a lot of Appeals Court Judges and Supreme Court Justices, who studied in the Boston Cambridge area and in New Haven.]
[The relevant clauses of § 12181 don’t even mention the word place, but this lack is not important.]
Software downloaded from https://www.dropps.com/ created (or established) a structure in a place in the memory of a computing device of Martinez Abelardo, JR. The physical structure in the computing device + the physical links to Cot’n Wash backend + the Cot’n Wash backend altogether assemble a temporary sales establishment or place of public accommodation for sales. One can include all the associated premises, grounds, and appurtenances in the description of the place. The place is somewhat distributed geographically, but Harvard University and Yale University are also geographically distributed. Yet, they come under Title III as Cot’n Wash also should.
Internet exceptionalism is a crock, and Martillo v. Twitter will eventually wend its way to SCOTUS once again.
Shorter Punchline Version
I have a difficulty with expressing in 10 words an assertion that I could make in 500 words.
Cot’n Wash temporarily established (or operated) a place of public accommodation for retail sales within the premises of Martinez Abelardo, JR., and this place of public accommodation should be subject to the ADA.
The vendors at Fridays farmers’ market at the Ashmont T station use a tablet connected to a backend server via the Internet over the cell network to enable a shopper to make a purchase. A human vendor is involved, but it’s hardly necessary. I never interact with a human when I shop at Target whether or not I am shopping online. When I shop at home by means of my browser, Target temporarily establishes or operates a place of public accommodation for retail sales within my premises and is subject to the ADA.
I reiterate.
Internet exceptionalism is a crock, and Martillo v. Twitter will eventually wend its way to SCOTUS once again.
Re: Re: Re:
When it doesn’t, will I have permission to laugh at you until the day I die?
Re: Re: Re:
Yea, thank you for proving my point so conclusively.
Re: Re: Re:
I introduced students at Harvard to WWW technology in the early 90s…
Did you also teach them that there’s no difference between the USPS and a company that send mail via it? That would certainly explain the current crop of politicians in Congress. (－‸ლ)
Re: Re: Re:
Internet exceptionalism is a crock, and Martillo v. Twitter will eventually wend its way to SCOTUS once again.
Actually, it never made it to the Supreme Court the first time. But you already know that.
Re: Re: Re:2 AC Does Not Understand How SCOTUS Work
Every petition to SCOTUS for writ of certiorari is read by clerks of every Justice. The clerks do all the research and work closely with Justices in drafting of opinions.
Even if a petition is not granted, if a clerk believes the petition will be interesting to the Justice for whom he works, the clerk will flag the petition for his Justice.
While I have only spoken with Justice Thomas a few times and he probably does not know me by name as another Justice would, he would be interested in the argument of Constitutional violation that I make in the petition:
Because I have an ongoing litigation that will almost certainly come before the Justices in the future, I can no longer speak with them ex parte about the issues of the litigation as I have done in the past.
There were not enough rulings from lower courts for SCOTUS to grant the petition. (On the next go round, there will be a myriad of filings for SCOTUS to review.)
A petition to SCOTUS for writ of certiorari before judgment of the Court of Appeals for the First Circuit does not represent ex parte communication.
Please learn something about the mechanisms and the procedures of the federal judiciary.
Re: Re: Re:3
Because I have an ongoing litigation that will almost certainly come before the Justices in the future…
I’m old, sonny, so I hope you’ll forgive me for dying laughing when it doesn’t.
Re:
Of course, Netflix et al. have a physical presence on any computing device on which it streams…
Oh? When did Netflix download itself such that any viewer is hosting the entire fucking website on their device? You… don’t understand how the Internet works, do you?
Re: Re:
About as much as Mr. Meshpage understands literally anything about this reality.
Re: Re: Re:
It wasn’t terop I was responding to, but ThorsProvoni.
Re: Re: Re:2
I’m aware. My comment was a cross-reference.
Re: Re: Re:3
Fair enough. I misunderstood.
Re: Re: Re:4
S’alright. 👍
Re: Play that funky music!
You are the clown that never stops dancing.
Re:
I see you don’t understand what a “physical presence” is. A Japanese company that pays FedEx to ship goods to US destinations does not have a physical presence in the US just because its goods end up having a physical presence there. The Supreme Court explicitly ruled on this issue a few years ago regarding jurisdiction.
Also, if you actually understood the technology, you would know that the physical particles that carry charges present in the source of the current don’t end up in the destination unless the current remains active in only that direction for a long time, especially since, in many cases, there is an intermediary at some point that uses photons (via fiber optics or satellite transmission) and one to convert between AC and DC, and much of the electrical path is AC, which alternates direction so quickly that no electrons ever go very far. So even by your ridiculous definition of a physical presence, that simply is not applicable here.
Netflix has no physical presence whatsoever on any device that runs it, and even that would not be the same as what a physical presence means legally. A physical presence requires—at a minimum—an actual human being physically present or an address to a specific physical location, and even that’s not always enough to satisfy the actual, legal requirements for jurisdiction.
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Re: Re: Physical Presence Has a Well-Defined Meaning in Immigration Law
We are discussing a tax.
For the purpose of tax law, there is as yet no clear definition of physical presence in eCommerce.
[Physical presence plays no role in law that relates to the ADA or to the CRA.]
Here are almost 400 pages to read on tax law and eCommerce: eCommerce and the Effects of Technology on Taxation: Could VAT be the eTax Solution? I invite you to read it.
Re: Re: Re:
For the purpose of tax law, there is as yet no clear definition of physical presence in eCommerce.
Yes there is. In the UK, it used to be solely where a company has its headquarters, meaning a lot of big companies (Vodafone) got away with paying next to nothing. Now, if a company is based or has an office here, it pays taxes based on what it makes here and abroad, and if it’s based abroad, it pays taxes based only on what it makes here. So physical presence very much does matter to ecommerce companies like Amazon and eBay in regard to taxation. Care to try (and fail) again?
Re: Re: Re:2 We Are Not Discussing Income Tax!
Other taxes can have a different definition of physical presence or not require a physical presence.
Re: Re: Re:3 We Are Not Discussing Income Tax!
I never said a word about income tax, ignoramus. The law I quoted relates to capital gains tax.
Re: Re: Re:4
‘Capital gains tax’ should have been ‘corporation tax’, but I got mixed up.
Re: Re: Re:
What Autie said, only US law is the same as UK law in this respect. Again, this is basic stuff.
Re: Re: Re:2 We Are Not Discussing an Income Tax!
Other taxes can have a different definition of physical presence or not require a physical presence.
Please learn something about tax law.
Re: Re: Re:3 We Are Not Discussing Income Tax!
Please learn something about tax law.
Please learn something about the differences between income tax and corporation tax, FFS.
Re: Re: Re:4 We Are Discussing a US State (Texas)
I am not up on the tax code for the UK.
I live in Massachusetts.
A Massachusetts C-Corp pays a federal income tax (form 1120) and a Commonwealth corporate excise tax, which includes an income tax. See Corporate Tax.
A Texas corporation pays a federal income tax and a Texas corporate income tax. See Texas Corporate Income Tax: Everything You Need to Know.
The above state taxes require a certain definition of physical presence in the state. Another state tax, which is imposed on a corporation, may use a different definition of presence in the state.
Re: Re: Re:5
And guess what? The income tax doesn’t require a physical presence, so the point is moot. You’re the one arguing about physical presence. And no, you can’t tax corporations for stuff they earned outside the state if they don’t have a physical presence within the state.
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Re: Re: Physical Presence Has a Well-Defined Meaning in Immigration Law
We are discussing a tax.
For the purpose of tax law, there is as yet no clear definition of physical presence in eCommerce.
[Physical presence plays no role in law that relates to the ADA or to the CRA.]
Here are almost 400 pages to read on tax law and eCommerce: eCommerce and the Effects of Technology on Taxation: Could VAT be the eTax Solution? I invite you to read it.
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Re: Re: Shipping Is Not The Issue
Netflix downloads software to a user’s computing device to establish or to operate a temporary place of public accommodation for exhibition or for entertainment on the user’s computing device within the user’s premises.
If you wish to argue about a mobile device, I refer you to Carpenter v. United States, 138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018). It’s a little thin, but a top litigator could argue that a mobile device constitutes a place.
After all, a computer has been used as an establishment, a structure, a facility, or a place to play a computer game at least as early 1962 (before the passage of the CRA), and the English language long ago accommodated this usage.
BTW, an establishment, which includes a structure or facility, need only function as a place to constitute a place under the CRA.
The first computer game was Spacewar!,
The game was covered in the news media, and it was often distributed with a newly purchased PDP-1. While it continued to be played at MIT for over a decade, it was less famous than Eliza.
I used occasionally to play Spacewar! It was mildly amusing.
BTW, my first degrees are in physics. It’s pointless to babble physics, electronics, electrical engineering, etc. at me. I understand the subjects better than you do.
Re: Re: Re:
We can add “download” to the list of things you don’t understand. Netflix uploads its software, and the user downloads it.
Additionally, this still isn’t a “physical presence.” A physical presence means either an office or a legal registration of the corporation (in the case of a corporation) is within that physical location. If I buy something from some Japanese company and it ships its product over here via FedEx or something, that company still doesn’t have a physical presence in the US.
And yet, a mobile device is not a place. You can argue anything, but that doesn’t mean the argument has even the slightest bit of merit. Try again.
That doesn’t make it a physical place legally. And no, it has never been “used as an establishment or facility”.
More to the point, the issue here is whether or not the business is physically located there, not one of their products. There is a difference.
You also have claimed legal expertise, yet all appearances suggest you are terrible in that arena as well.
Also, I also have a relevant degree on this subject, so even if you do have a degree in physicist, you likely don’t understand the subjects better than I do. At best, you might have an equal understanding, but time and again, you demonstrate that you do not.
Re: Re: Re:2 Big Law Hires Me as an Expert Consultant
Such a clueless ignorant clown!
A client uploads to a server or a server uploads (is uploaded) from a client.
A client downloads (is downloaded) from a server or a server downloads to a client.
I been using and programming a computer since the 1950s. The terminology has changed or been reinvented several times in the last 63 years.
One tax may require a physical presence to establish a “tax home”. Another might not. The proposed Texas tax may be the latter sort, and the meaning of the phase “physical presence” in the context of eCommerce has yet to be set in concrete.
Law is organic. Law is not petrified. A definition, which may be useful in one case, may not be useful in another. A Court develops and applies a doctrine. A doctrine helps a court reach a decision (and give guidance to a jury). A doctrine changes slowly and is occasionally superseded if it proves inadequate.
If I analogize to physics, bhull242 is a pre-Newtonian while I am trying to teach quantum field theory. (Yet a smart pre-Newtonian like Leonardo da Vinci would have comprehended quantum physics with ease because he had the necessary knowledge base, which has not changed much since the 15th century. If I continue the analogy, bhull242 is not a smart pre-Newtonian and self-evidently does not have the necessary knowledge base.)
I am hiring a top legal team because we have to get across to the Court that a number of doctrines need to evolve or to be superseded in the face of the pervasiveness of technology change that started in the 70s. Fortunately in most cases we needed only show how PSPDN caselaw, which developed in the 70s and 80s applies to the Internet, which is nothing more than a slightly more evolved form of PSPDN. A lawyer like Goldman, who has training neither in science nor in engineering, is befuddled by the WOW! factor. Goldman has a background in business and economics. He would not even be allowed to take the USPTO registration examination.
My team must explain that the technology, which seems so new, differs only incrementally from the technology of the 1840s. A Judge is extremely open to such an argument. When a nitwit geek argues that the technology has superseded law or made it obsolete, a judge is offended to the core of his being by such an argument.
bhull242 does not have the slightest clue either of the meaning of merit in the legal context or of the nature of determining the merit of an argument.
First we start by reading the statute.
[I admit that I have been mixing issues of tax law, public accommodation law, civil rights law, and common carriage law. I would have preferred not to deal with such a mishmash, but technology illiterates have managed to do damage throughout many legal areas.]
From 42 U.S. Code § 2000a – Prohibition against discrimination or segregation in places of public accommodation.
When we developed the technology of the Arpanet/Internet, we always envisioned that this network would be a facility or a place of accommodation for resource sharing by a network user. The usage is all over the documentation.
Note the use of “as” in the passage above. The CRA of 1964 employs a simile while the ADA has no similar construction.
See 42 U.S. Code § 12181 (Definitions)(7).
As I pointed out, a PDP-1 was a place, facility, structure, or establishment (something established), where (on which) I used to play Space War! just as a football field is a place where I play football.
A 4ESS was a huge computer, into which I could walk. It was an establishment where national level switching took place in the telephone system hierarchy.
[I bring up telephony because in many ways there is not much difference between a PSPDN and a circuit-switched telphone network. The FCC has regulated both a circuit-switched network and also a packet-switched network for a long time.]
The usage, which considers a circuit-switched network or a packet-switched network to be a place, structure, facility, or establishment, goes back to the switching offices of the 30s and is found all over the caselaw of the FCC and of the Court of Appeals of the DC Circuit.
Nowadays the service of a set-top box+TV is created by software
Outside of the context of tax law and in the context of the ADA and of the CRA, one says that the content provider’s service sets up a temporary place of public accommodation for exhibition or for entertainment within premises of a user.
My physics degrees are from Harvard and from Yale. I have been on the MIT faculty. bhull242 should disclose his obviously meager qualifications.
Big Law hires me because I am good at explaining the deepest science in terms comprehensible to a layman. Two major firms have realized that I am good at legal strategy and consult me in the development of legal strategies in cases in which complex technology is a subject.
Several judges from Federal Courts of Appeals have complimented me on my work.
Re: Re: Re:3
Thank you for labelling the rest of the content of your post for us.
Re: Re: Re:3
Nope. That’s still not how it works. To upload is to send, and to download is to receive.
In which case you need to update your terminology. Also, that’s not anywhere near as impressive as you seem to think.
What you don’t seem to understand is that I am not arguing about the Texas law; I’m arguing about your absurd definition of “physical presence” that has no grounding in logic, law, or reality.
Forgive me, but I highly doubt that you had any involvement in the technology. What I can tell you is that, however it was envisioned, that was never the reality.
The Court of Appeals in the DC Circuit has demonstrated time and again that they don’t understand technology at all. They were overruled on this point by the Supreme Court. And no, a network like you speak of is not a place, facility, or establishment.
Unlike you, I don’t feel the need to boast about my qualifications online. I also don’t care where you got your degree in physics, which gives you no expertise in computer science.
Because your understanding isn’t much better than that, apparently. This bit reminds me of Kent Hovind, actually…
Are you done bragging? I really don’t care. What you don’t seem to understand is that I am judging your abilities based on my observations, not on your assertions that I, frankly, have reason to doubt the veracity of and, really, don’t matter all that much. Even educated people can get things wrong. What matters is the arguments you make and the facts you present in support of those arguments, and those have been terribly lacking.
Re: Re: Re:3
Apparently not enough to let you win, though.
Re: Re: Re:3 not a place of public accommodation
One who says that would be unreliable. The fact that a person brings something into his home does not transform that home into a place of public accommodation.
Consider, if you will, fried chicken. A person can purchase some take-away from a chain, bring it to their home, and unbox it onto plates. Everyone in their household may partake. Yet their dining table has not been transformed into a place of public accommodation, nor even an instrumentality of interstate commerce.
Why should bringing something into the home work such a transform? If a family calls a relative in a distant state on a special occasion, using a speaker phone, can it be reasonable to say that their shared merriment transforms that speaker phone into a place of public accommodation?
Yet this is not readily distinguished from the claim you are making for viewing something over the internet. For this reason I am unwilling to make the leap you ask.
Re: Re: Physical Presence is Defined by Statute Not by an Ignorant Geek
It the old days when the RBOCs (now ILECs) belonged to AT&T, an RBOC had a physical presence wherever it provided service or rented equipment and paid taxes according to its income from the end loop.
Likewise for cable providers although the cable provider model was somewhat simpler than the telephone service provider model.
Today, a streaming medium platform downloads software to end user’s computing device and provides service by means of the general purpose hardware, which has been transformed into CPE by means of the software download.
If the statute is correctly written, there is no reason that a streaming medium service should not be taxable as a cable provider or an RBOC was taxable.
Re: Re: Re: physical presence
Sure, the RBOC, like the cable company, has a physical presence there. No problem taxing them, generally on the theory that the poles carrying their wires are in public rights of way.
But consider that RBOC again. They are useless unless the family has something hooked to the local loop.
Inside the home, a family may have a speaker phone. The family calls Granny to hear her wishes for the kid’s birthday. By your logic, Texas cities can tax Granny for those best wishes, because the family’s speaker phone has become a taxable presence for Granny to distribute the wisdom of her years.
Sorry, not buying it. Texas should go back to regulating internet moderation.
Re:
If the Internet is physical, then copyright infringement of a music album over the Internet should carry the same penalty as shoplifting that same physical album from a store.
Until those parallels exist, your claim is a sad, pathetic bluff.
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Re: Re: Legal Definition of Shoplifting
A legal definition of shoplifting can be found here.
If the music industry could charge a copyright infringer with shoplifting, it would certainly do so.
Copyright infringement over the internet does not seem to fit the legal definition of shoplifting.
Re: Re: Re:
They’ve been calling it theft since they tried to appeal towards morals in order to fund their excessively lavish lifestyles.
Of course, they don’t charge it as theft when it comes to the courts – one because it’d be laughed out by the judge, two because it doesn’t give them as much money to extort.
Re: Re: Re:
So you admit AC’s charge. After all, you chose to not rebut it.
Re: Re: Re:2 Quīne tacet cōnsentīre vidētur?
I always considered the shoplifting charge in this context to be mostly rhetorical and directed toward educating the public about IP rights.
Shoplifting has jurisdiction-specific meaning while some retailers do not easily fall prey to shoplifting.
I have been considering how to reply. Tonight I have to work on some briefs. A response will have to wait until after they are filed.
Re: Re: Re:3
Different context, butthead.
Re: Re: Re:4 A General Principle Can Cut Across Context
Without general rules, principles, and doctrines, the law quickly becomes unmanageable.
Re: Re: Re:5
And how’s that worked out for you so far? The average person on the street does not view downloading a file to be equivalent to physically stealing an object. You might have convinced some people with your “You wouldn’t steal a car” charade, but the truth is that most anti-piracy messages that played towards such extreme morals fail from the outset. Even people who believe that downloads are stealing are rarely going to agree that downloading one song should set you back by $150,000 as copyright law currently allows for.
Once again, indicating that copyright infringement and theft have separate, unique nuances that the other lacks – which was the point of the original response. Copyright fanatics have no interest in actually treating copyright infringement as theft, because it inconveniences them far more than it benefits, especially from a monetary perspective. Which in turn calls their alleged altruism towards artists into question.
Which is why copyright law has become unmanageable. Copyright fanatics have no principles beyond chasing people for a pound of flesh – despite the fact that high maximum penalties are rarely used for copyright infringement, or that copyright lengths of “life + 70 years” have shown little tangible benefit. It’s what has enabled the likes of Prenda Law and Malibu Media to shake down retired grandmothers for pornography they didn’t download, via the RIAA’s business model – and were only stopped when judges finally noticed their scummy behavior.
Re: Re: Re:6
And when copyright trolls engage in such scummy behavior, it blinds people to the good copyright can do when used properly and with reasonable terms.
Re: Re: Re:5
With lawyers like you twisting word to mean what they want, it becomes the plaything of people with an agenda.
Re: Re: Re:3
Quīne tacet cōnsentīre vidētur?
Tu, scilicet.
Re: Re: Re:4 Please Learn Latin
Once upon a time all English-speaking lawyers could read, write, and speak Latin.
The illiterate did not answer the question.
(In his ignorance he probably used google translate, whose translation of Latin is notoriously bad.)
The question
means
Is he, who is silent, seen to agree?
or
Does he, who is silent, seem to agree?
I have a job. Sometimes I am too busy to make an immediate response.
Re: Re: Re: Dance clown dance!
Oh look my favorite clown showed up to do a jig!
Re:
“Of course, Netflix et al. have a physical presence on any computing device on which it streams”
Well… I thought I’d already heard the dumbest, most insane takes on this issue many times, but I have been proven very, very wrong.
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Re: Re: Is it Possible to Have a More Clueless Take than PaulT has?
Let’s keep it simple for the clueless.
When I put the Netflix app on my mobile device, I don’t own it. I license it. Netflix has a presence on my mobile device, which according to SCOTUS is effectively my premises. See Carpenter v. United States, 138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018).
When I use a desktop or laptop, the Netflix website downloads a webpage (among other data), which is Netflix digital literary property and which is copyrighted by Netflix. In addition, the webpage contains Netflix software that transforms my computer into a frontend for the Netflix streaming system. Thus Netflix has a presence on my computing device and on my premises.
I can make the issue simple enough for the average 7-year old to understand.
In olden days, when a customer paid for cable service, he rented a set-top box from the cable company. This Customer Premises Equipment (CPE) gave the cable company a presence in the customer’s premises even if the cable company had neither personnel nor office within the customer’s premises, and the cable company had presence in the town where the customer resided even if the cable company had neither personnel nor office in the town where the customer resided.
Welcome to the software-defined world, in which we no longer need turnkey hardware to receive entertainment from a content provider!
Is it possible to understand less how the world functions than PaulT does?
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Yes. You prove as much every time you post here, you stale cornflake.
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Is it possible to understand less how the world functions than PaulT does?
Every accusation a projection-filled confession.
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In olden days, when a customer paid for cable service, he rented a set-top box from the cable company. This Customer Premises Equipment (CPE) gave the cable company a presence in the customer’s premises even if the cable company had neither personnel nor office within the customer’s premises, and the cable company had presence in the town where the customer resided even if the cable company had neither personnel nor office in the town where the customer resided.
You actually have a point. I’ll tell you what, rent a computer from Twitter, and then you might not lose your case.
Re: Re: Re:2 Did Naughtie Autie Ever Hear of the Software Industry?
I guess Microsoft has no presence in my office even though half the PCs — neither rented nor manufactured by Microsoft — run MS Windows, which is licensed from Microsoft.
A Court will understand the issue even if a nitwit does not.
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Which case are you planning on getting laughed out of court this time?
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A nitwit will create an issue even where a highly educated panel of judges recognize there isn’t one.
FTFY. YW. I mean, you can’t even spell the word “naughty” corrrectly when it’s right in front of your eyes to be copied, so anyone can understand why I don’t take you seriously on this issue, lawyer or no.
Re: Re: Re:3 Does ThawsProvonee understand the difference between digital and physical?
To quote Tab from Watership Down, I think not. I think not.
Re: Re: Re:4 Digital Is Catchall for a Number of Physical Phenomena
Naughty Autie needs to learn something about the epistemic vocabulary of electrical engineering and computer science.
Re: Re: Re:3
Correct. Some of its products might be in your office, but Microsoft itself is not.
Re: Re: Re:4 Software Running on Program Executing Device
Comcast and AT&T used to establish a presence in my home and office by providing hardware and services to my home and office. I did not own the hardware.
Today Microsoft establishes a presence in my home and office by providing software and services to my home and office. I do not own the software.
I do not understand the irrational desire of nitwit technogeeks to exempt providers of software and services from the hardware-software agnostic laws that providers of hardware and services have had to follow.
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Again, AT&T and Comcast’s hardware had a physical presence in your home, but AT&T and Comcast themselves did not. Microsoft’s software is present on machines that are physically present in your home and office, but Microsoft itself is not. Whirlpool’s washing machine is in my basement, but Whirlpool is not. If Blockbuster was still open and I rented a movie from them, Blockbuster’s movie would be physically present, but Blockbuster itself would not.
That you cannot distinguish between a company and its possessions/products says a lot about you.
I do not understand your inability to understand what having a “physical presence” means.
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“MS Windows, which is licensed from Microsoft”
Indeed. How does that create a physical presence? You know what physical means, right?
Re: Re: Re:3 lucky guess
That would be my guess, also. As a result, I probably cannot sue Microsoft in your jurisdiction and serve them in your office.
Chicago
That city is so polluted with taxes, it’s not funny. I moved from California to a really small town in Illinois around 1998. When I went to the DMV to register my ’72 Blazer, I was asked if I wanted to get a sticker(at extra cost) to be able to drive my truck into the city of Chicago. The logic behind that has something to do with the city saying that 4×4’s tore up the roads. Needless to say, I told them where they could stick their sticker and never went into the city.
How long before they start implementing highway toll fees for the planes flying overhead?
So, taxes on (at least formerly semi-)natural monopoly physical infrastructure for making use of city property or rights of way previously granted can be applied to any rando (but we have one favorite for some reason) service which the physical monopoly carries.
They must be slapping themselves for missing out on railroads and telcos carrying premium-rate calls. Hey big government, call me now.
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What about railroads and telcos?
Franchise taxes and monopoly taxes have been imposed for centuries. Please learn something about the history of tax law.
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You’ve some cheek demanding that others learn when you’ve clearly abdicated that responsibility for yourself.
Physical is Physical
The only physical presence established is that of the user, not that of some remote internet service.
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Does AC Work at Being Legally Ignorant?
See Illinois v. Hemi Group LLC, 622 F.3d 754 (7th Cir. 2010).
Re: Life is like a common carrier.
Have you ever though if changing your name to Forrest Chump?
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Does Joachim C. Martillo Work at Being Legally Ignorant?
FTFY. YW. 😛
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Re: Question of Personal Jurisdiction Seems Related to Question of Physical Presence
It’s probably worthwhile also to read Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482 (1984).
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How many more unrelated cases are you going to regurgitate?
Re: Re: Re: Ongoing Effort to Show Complete Ignorance of Structure and of Operation of Law
Personal jurisdiction often relates to presence or to transactions. Thus a case focused on personal jurisdiction can have relevance to question of physical presence and may be cited among the authorities in a litigation.
Someone without knowledge of operational interaction of different legal question has little understanding of law.
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Ongoing Effort to Show Complete Ignorance of Structure and of Operation of Law
We know, you’ve made us all aware of your plan many, many times.
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.. and that “someone” is named ThorsProvoni.
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Value of Law to Protect IP
I normally work in IP law. I know of no such case as AC describes below.
AC is fearmongering like many a white racist supporter of social medium platform discrimination against non-whites and non-Europeans.
Will AC babble a white replacement or white genocide conspiracy theory next?
See Two More Copyright Myths Bite the Dust: The $150,000 Statutory Damages Award and the DMCA as the Enemy of Free Speech.
In general, US copyright law has been tolerant of non-commercial fair use of creative intellectual property but has been relatively strict in enforcing inventive intellectual property rights.
US intellectual property law seems
– to have been a major factor in US economic expansion and
– to have benefitted most those that are outside of the highest economic strata of the nations.
See The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790–1920 by B. Zorina Khan.
BTW, when the Plaintiffs prevail in Martillo v. Twitter, each social medium platform will have to make a payout on the order of $100 billion or more.
Racists, IP pirates, and IP claim jumpers should worry about a lot more than the DMCA.
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[Projects facts contrary to evidence]
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“Tolerant”? There’s been plenty of cases brought forward by the RIAA and other “starving” photographers et al, claiming that fair use shouldn’t exist. Fair use, by and large, is not “tolerated” in the context that people allow it. It’s “tolerated” in the sense that the bulk of rightsholders hate it but generally don’t want to spend the money pursuing lawsuits in court.
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AC is fearmongering like many a white racist supporter of social medium platform discrimination against non-whites and non-Europeans.
[Asserts facts not in evidence, probably due to guilt of the offenses charged]
And no, AC is not fearmongering. AC never claimed that anybody had been fined $150,000 for downloading a single track as you imply they did, they only stated that it is theoretically possible because the law as written allows for it. But I suppose we should expect such deliberate misinterpretations of what people say from someone spewing unrelated caselaw to bolster his nonsensical position that Twitter is a common carrier.
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How is it fearmongering to point out that copyright law, as it currently stands, allows for penalties up to a maximum of $150,000 per infringement?
You could argue that no case currently exists where someone has been slammed with such a fine, but that’s a meaningless distinction. The media reports on maximum penalties and punishments all the time, including life in prison. Does that make all media fearmongering?
I like that your best counterexample is an article that’s seven years old, and lovingly refers to Malibu Media as an “alleged” copyright troll – considering they went ahead to achieve national notoriety by 2018 through filing the most copyright-related cases in a year, and then proceeded to incur the wrath of judges by suing an innocent John Doe, and refusing to show evidence or proof. It got them fined over a hundred thousand bucks. Plus all the reputational damage they inflicted upon themselves, and the fact that their own lawyers and investors are suing them to get money back.
If the maximum penalty of $150,000 is so rarely enforced to the point where even bringing it up constitutes fearmongering, then answer this: why even have it there when you’re clearly not going to demand that much money? Note that even in the article you linked, it claims that such a penalty only applies to “willful infringement” – have your enforcement arms seriously not found any cases of willful infringement, considering how much you guys claim that infringement is widespread to an extent that it destroyed the entertainment industry?
I’m going to hazard a guess that any honest attempt to suggest lowering the maximum penalty for copyright infringement is going to draw howls of protest from your end – because you enjoy being able to harass, intimidate, and bully people into compliance with the threat of $150,000 fines hanging over their heads. But even that would depend on these cases actually making it to court, which – based on cases filed and settlements made out of court, even before the docket makes its way to a judge – isn’t really a promising track record now, is it? That’s what Malibu Media did, same as Prenda Law and the RIAA – and it’s what’s landing them in legal hot water.
Govern yourselves accordingly, as Malibu Media would say to their victims – and is now being rightfully turned around on them.
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Neither AC Nor I Are Privy to the Discussions Between Judges and Justices
I followed the blueprint that Justice Thomas provided to challenge an action of a social medium platform. I alerted the Court of Appeals and SCOTUS to some of the unconstitutionality of Zeran-based caselaw.
I do know there was a lot of discussion between SCOTUS and the First Circuit.
If the Court of Appeals were going to uphold the District Court, it could have done so anytime in the last two months with a one sentence ruling.
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“I do know there was a lot of discussion between SCOTUS and the First Circuit.”
Man I wish I could get high enough to just make shit up out of whole cloth.
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Move to a state where possession of marijuana is legal and you too can get as high as ThorsProvoni. From the evidence, he smokes Maui Wowie, which is said to promote creativity.
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Nah, too risky. You might get arrested by cops too lazy and dishonest to remember that their state legalized marijuana possession, and then davec will blame you for not willingly accepting a bullet in your head.
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If the points you made had any legal merit, you wouldn’t be here after losing your case. You would have nuked your legal opponents out of the water in a decisive strike.
Yet here you are, shaking your fist and screaming at the sky as if it meant something. Curious. It’s almost as if your theories don’t have the legal weight you desperately hope they do.