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  • On the post: New Year's Message: Change, Innovation And Optimism, Despite Challenges

    antidirt ( profile ), 03 Jan, 2015 @ 12:16pm

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

    Just out of curiosity, how many such "quoted in email" cases are you personally aware of?

    That's a great point. There is one case in particular that I remember--and Mike is aware of it too:

    1. Publication of some of the contents in the email archive is lawful.

    At the hearing on Plaintiffs' motion for preliminary injunction, Diebold's counsel asserted that portions of the email archive contain material that is copyrighted and has no “public interest” value. Transcript of Law and Motion Hearing, November 17, 2003, p. 8:7–12. However, Diebold did not identify and has never identified specific emails that contain copyrighted content, and thus it has not provided evidence to support its counsel's assertion. See, e.g., id. at 10. At the same time, Diebold appears to have acknowledged that at least some of the emails are subject to the fair use doctrine. See, e.g., id. at 12:8–9 & 14–16.

    The purpose, character, nature of the use, and the effect of the use upon the potential market for or value of the copyrighted work all indicate that at least part of the email archive is not protected by copyright law. The email archive was posted or hyperlinked to for the purpose of informing the public about the problems associated with Diebold's electronic voting machines. It is hard to imagine a subject the discussion of which could be more in the public interest. If Diebold's machines in fact do tabulate voters' preferences incorrectly, the very legitimacy of elections would be suspect. Moreover, Diebold has identified no specific commercial purpose or interest affected by publication of the email archive, and there is no evidence that such publication actually had or may have any affect on the putative market value, if any, of Diebold's allegedly copyrighted material. Even if it is true that portions of the email archive have commercial value, there is no evidence that Plaintiffs have attempted or intended to sell copies of the email archive for profit. Publishing or hyperlinking to the email archive did not prevent Diebold from making a profit from the content of the archive because there is no evidence that Diebold itself intended to or could profit from such content. At most, Plaintiffs' activity might have reduced Diebold's profits because it helped inform potential customers of problems with the machines. However, copyright law is not designed to prevent such an outcome. See, e.g., Acuff–Rose, 510 U.S. at 591–92, 114 S.Ct. 1164. Rather, the goal of copyright law is to protect creative works in order to promote their creation. To the extent that Diebold argues that publication of the entire email archive diminished the value of some of its proprietary software or systems information, it must be noted that there is no evidence that Plaintiffs published or linked to the archive in order to profit. Finally, Plaintiffs' and IndyMedia's use was transformative: they used the email archive to support criticism that is in the public interest, not to develop electronic voting technology. Accordingly, there is no genuine issue of material fact that Diebold, through its use of the DMCA, sought to and did in fact suppress publication of content that is not subject to copyright protection.
    Online Policy Grp. v. Diebold, Inc., 337 F. Supp. 2d 1195, 1203 (N.D. Cal. 2004) (footnotes omitted).

    More than 13,000 emails were published, yet the court held that the copyright owner had violated the law by sending DMCA takedown notices to have the email archive removed:
    Applying this standard and in light of the evidence in the record, the Court concludes as a matter of law that Diebold knowingly materially misrepresented that Plaintiffs infringed Diebold's copyright interest, at least with respect to the portions of the email archive clearly subject to the fair use exception. No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were protected by copyright, and there is no genuine issue of fact that Diebold knew—and indeed that it specifically intended—that its letters to OPG and Swarthmore would result in prevention of publication of that content. The misrepresentations were material in that they resulted in removal of the content from websites and the initiation of the present lawsuit. The fact that Diebold never actually brought suit against any alleged infringer suggests strongly that Diebold sought to use the DMCA's safe harbor provisions—which were designed to protect ISPs, not copyright holders—as a sword to suppress publication of embarrassing content rather than as a shield to protect its intellectual property.
    Id. at 1204-05 (footnote omitted).

    Mike is, of course, completely aware of this case. He blogged about it in 2004: https://www.techdirt.com/articles/20040930/2247229.shtml And he's mentioned it recently. See, for example: https://www.techdirt.com/articles/20130207/00105521902/putting-together-database-bogus-dmca-takedowns.shtml

    There are other cases, but this is the one I remember distinctly.

  • On the post: New Year's Message: Change, Innovation And Optimism, Despite Challenges

    antidirt ( profile ), 03 Jan, 2015 @ 11:42am

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

    That is one of the problems of copyright law, fair use is so poorly defined that it becomes an expensive exercise to prove it through the courts if the copyright holder wishes to make a case of it.

    Mike writes post after post where he quotes others, and he's not worried about it because he knows it's fair use. When he receives legal threats, he publicly posts his responses where he proudly tells the party complaining that he's confidently quoting them because of fair use. It's not a problem for Mike, and it's not a problem for me either. I just quoted your entire comment, and I haven't the least bit of concern about it being infringing.

  • On the post: New Year's Message: Change, Innovation And Optimism, Despite Challenges

    antidirt ( profile ), 03 Jan, 2015 @ 11:40am

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

    No, the truth is that Mike was making a very easy and obvious point that you are refusing to understand, even though you easily could, because you love fighting in the Techdirt comments to a perverted degree.

    And you have yet to supply even one iota of evidence of why you think Mike is facetiously making his claim. I await your substantive response. No need for further insults, but you keep acting that way if it's all you got. I understand.

  • On the post: New Year's Message: Change, Innovation And Optimism, Despite Challenges

    antidirt ( profile ), 03 Jan, 2015 @ 11:38am

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

    Again, utterly (or intentionally) failing to understand the point.

    I get that you need to say I'm wrong, but you're not explaining WHY I'm wrong. Please be specific. I'm happy to address your points, despite your obvious hatred of me, because I only care about substance. Explain exactly what the point is that I'm "failing to understand." It's easy to say I'm wrong. It's not so easy to explain why. Can you explain why?

  • On the post: New Year's Message: Change, Innovation And Optimism, Despite Challenges

    antidirt ( profile ), 03 Jan, 2015 @ 11:37am

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

    It's obvious in the most broad and clear way what point is being made by both Mike and the original report.

    The only way you could possibly not understand is a) genuine stupidity or b) willful stupidity. Either way, there's no point in engaging with you

    I get that you need to insult me, but I'm not understanding what basis you have for thinking that Mike is being facetious when he makes the claim that replying to an email with quotes is infringement. You keep saying it's "obvious," but you have yet to back up that assertion with even one single sentence from Mike that demonstrates this purported obviousness. Can you please provide even one shred of textual basis for your claim?

  • On the post: New Year's Message: Change, Innovation And Optimism, Despite Challenges

    antidirt ( profile ), 03 Jan, 2015 @ 08:49am

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

    One last point: Mike claimed that replying to an email with quotations from the email being replied to is infringement. We're not talking about publishing someone's emails. This is not a close case. It's fair use. Considering the incredibly broad understanding of fair use that Mike has, wherein he considers much less obvious uses to be fair, do you honestly think that Mike really doesn't think the email thing is fair use? Serious question.

  • On the post: New Year's Message: Change, Innovation And Optimism, Despite Challenges

    antidirt ( profile ), 03 Jan, 2015 @ 08:25am

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

    I'm not dodging anything. I said Gwiz and Mike could sue me. That implies that they potentially have a claim. Are emails copyrighted upon fixation? Probably, if they're sufficiently original, long enough, etc. Given that I said they're not infringing because of DEFENSES, such as fair use, I implied that they were copyrightable to begin with. What am I dodging? How am I disingenuous?

  • On the post: New Year's Message: Change, Innovation And Optimism, Despite Challenges

    antidirt ( profile ), 03 Jan, 2015 @ 08:12am

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

    Sorry, don't know why I got signed out. I love the irony, though, that Mike is claiming that something is infringing, and I'm explaining why it's not. The truth is that Mike doesn't realky think it's infringing either. But he won't admit it.

  • On the post: New Year's Message: Change, Innovation And Optimism, Despite Challenges

    antidirt ( profile ), 03 Jan, 2015 @ 07:37am

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

    I've asked you to explain why exactly you think this isn't infringement here:

    https://www.techdirt.com/articles/20141227/05571829528/sonys-own-copyright-infringement-shows-h ow-broken-our-copyright-system-is-today.shtml#c557

    Perhaps you missed it or were too busy to respond or....just maybe....you were too chicken to respond. Who knows?

    Glass houses, my friend.

    LOL! Sorry, I missed your question earlier. (1) De minimis, (2) fair use, (3) implied license. Make sense?

  • On the post: New Year's Message: Change, Innovation And Optimism, Despite Challenges

    antidirt ( profile ), 03 Jan, 2015 @ 07:29am

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

    Great comment. The irony is that this site blasts other for "hyperbole, moral panic, and misleading information," while it engages in those very same tactics even more so than most. Mike's "emails are infringing" bit is just one example. Strange how my AC critic can't even admit that Mike is really making this claim. They're all so desperate to defend him. Heck, this AC probably is Mike. I'd actually be shocked if it weren't, to tell you the truth. I really think he's that desperate.

  • On the post: New Year's Message: Change, Innovation And Optimism, Despite Challenges

    antidirt ( profile ), 03 Jan, 2015 @ 06:49am

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

    Wow... reading comprehension fail (or willful ignorance yet again)

    So you have nothing. Thanks for confirming. If you think I'm reading something wrongly, quote the exact text you're referring to and then explain how you think it should be interpreted. I've brought links and quotes and analysis. You've brought nothing.

  • On the post: Techdirt 2014: The Numbers.

    antidirt ( profile ), 02 Jan, 2015 @ 08:18pm

    Re: Missing Statistics

    In all seriousness, I'd like to see the numbers on who is being censored the most. Of course, we'll never get that kind of transparency. Heck, Mike cannot even admit to how desperately he tried to censor me the summer before last. Good times.

  • On the post: Techdirt 2014: The Numbers.

    antidirt ( profile ), 02 Jan, 2015 @ 06:46pm

    Re: Missing Statistics

    How are we going to vote for our favorite troll without knowing their standings??? I think out-of-his-ass is winning, but it could be Anti-Dirt ...

    LMAO!

  • On the post: New Year's Message: Change, Innovation And Optimism, Despite Challenges

    antidirt ( profile ), 02 Jan, 2015 @ 05:58pm

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

    It's fairly clear to me, and to anyone who isn't willfully seeking as many disagreements as possible, that the email quoting example refers to a maximalist interpretation of copyright law.

    What makes you think that? Here's the original post from 2007: https://www.techdirt.com/articles/20071119/015956.shtml

    Mike says:

    Boing Boing points us to a paper from John Tehranian, called Infringement Nation: Copyright Reform and the Law/Norm Gap (pdf), which attempts to show how far out of whack copyright laws are, with the simple tale of a hypothetical law professor (coincidentally named John, of course) going about a normal day, tallying up every big of copyright infringement he engages in. Replying to an email with quoted text? Infringement! Reply to 20 emails? You're looking at $3 million in statutory damages. Doodle a sketch of a building? Unauthorized derivative work. Read a poem outloud? Unauthorized performance. Forward a photograph that a friend took? Infringement! Take a short film of a birthday dinner with some friends and catch some artwork on the wall in the background? Infringement!
    Mike is NOT treating the claim as one made by "maximalists," he's repeating what Tehranian said without a whiff of disagreement. He shows no skepticism whatsoever.

    The rest of Mike's post shows how serious he is:
    While the paper calls this "infringement nation," it clearly goes beyond our nation. We are living in the "infringement age," where it's impossible not to infringe on copyrights every single day -- yet many people still don't understand why it makes sense to change copyright laws to make them more reasonable.
    Mike is clearly NOT saying that the "maximalists" think it's infringing. He obviously wants others to think it's true. It's the "infringement age," for God's sake! It's "impossible not to infringe"!! He's arguing that it's true as the basis for his final claim: "it makes sense to change copyright laws." The entire claim about the emails being infringing is so that he can advocate for changing the law. "Maximalists" have nothing to do with it. It's "true" and copyright is really SCARY!

    It's just bullshit. And he's repeated several times when making the same argument: Everyone infringes implies copyright is broken implies fuck copyright. This argument comes up over and over again.

    For example:
    Nearly seven years ago, we wrote about a paper from law professor John Tehranian, in which he detailed just how much he likely accidentally infringed on copyright law each and every day, just doing normal things. *** To help promote the book, Bell has recorded an amusing video not all that different from Tehranian's premise, highlighting just how much accidental infringement you do on a daily basis -- and, yes, it includes the singing of Happy Birthday, so I'm surprised Warner hasn't killed the video yet. *** Now, some will argue that this is silly because no one is actually going after these kinds of "incidental" infringements, but Bell's point is pretty clear: "the fact that no one thinks copyright law should be fully enforced, demonstrates the need for reform." In fact, he notes that pretty much everyone agrees that full enforcement is "undesirable and counterproductive." And, really that should be a clear sign of just how flawed the law itself is.
    Source: https://www.techdirt.com/articles/20140430/17244727083/how-many-times-day-do-you-violate-copyright-laws-without-even-realizing-it.shtml

    Another:
    Law professor John Tehranian did some research a few years ago, into how much of his normal daily activity could be considered copyright infringement, and realized that under today's insane statutory damages rules, he had a daily liability of $12.45 million -- and that wasn't because he was downloading music. It was just everyday activities that people do all the time.
    https://www.techdirt.com/articles/20131104/01464225115/once-again-riaa-shows-how-easy-it-is-to-infringe-copyrights.shtml

    And another:
    A couple years ago, we wrote about a research paper looking at how often you infringe on copyrights in an average day to show just how ridiculous copyright law has become.
    Source: https://www.techdirt.com/articles/20090512/0041554839.shtml

    And, the post from last week:
    Second, it shows that everyone infringes all the time. Whether meaning to or not, it's actually fairly difficult to avoid infringing on copyrights. That's not to say that accidental copyright infringement is what's happening with file sharers or with Sony's use of the music here, but under the law, it's pretty much all the same. The fact that, as noted above, some of the biggest copyright system defenders are found out to infringe should highlight this issue pretty clearly. Even when you are a strong believer in copyright, there are going to be some situations in which you screw up and break the law. Given how frequently this happens, it certainly seems like the problem is with the law rather than all the people.
    Source: https://www.techdirt.com/articles/20141227/05571829528/sonys-own-copyright-infringement-shows-how-broken-our-copyright-system-is-today.shtml

    Can you explain why you think he is referring to the "maximalist interpretation of copyright law"? Or are you just trying to "willfully seeking as many disagreements as possible" with me?

  • On the post: New Year's Message: Change, Innovation And Optimism, Despite Challenges

    antidirt ( profile ), 02 Jan, 2015 @ 03:13pm

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

    Mike has made it quite clear that he's answered you to his satisfaction and sees no point in further engaging with you, and the bulk of readers here seem to agree. So it's time for you to walk away.

    What are you even talking about? He's answered which question "to his satisfaction"? I've asked hundreds of different substantive questions.

    For example, recently I've asked him why he claims that replying to an email while quoting the person you're replying to is infringement. He's never answered that. He's pointed to that earlier post where he made that claim many times. Do you believe that Mike really believes that is infringement? I don't. He's got the broadest definition of fair use there is. The context is always when he's making the completely unsubstantiated claim that "everyone infringes all the time." When he's making that claim, everything is infringing.

    Of course, he claims that everyone infringes when it suits him, but then when it's someone like Dotcom or Fung, he can't understand how they could possibly be infringers. Post a cover to YouTube? Criminal infringement. Dotcom scrapes YouTube. Never happened. Brush it under the rug and pretend like it's not there. What infringement?

    There's no consistency, and I'm calling him out for it. The fact that he doesn't stand up for himself as I call dishonest on his own boards speaks volumes. I'll continue to call him out and belittle him because I think it's hilarious that he won't even defend himself. He can't defend himself, because he knows it's bullshit.

  • On the post: New Year's Message: Change, Innovation And Optimism, Despite Challenges

    antidirt ( profile ), 01 Jan, 2015 @ 06:23pm

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

    https://www.techdirt.com/articles/20120818/01171420087/funniestmost-insightful-comments-week-te chdirt.shtml#c1210

    I love that you guys keep pulling out that link. To me, that's just Mike making a bunch of excuses. Excuses are all he ever has. What he doesn't have are any direct and honest answers to direct and honest questions. And I doubt he ever will.

    Can you give me links to exact posts of mine that you think prove I don't want to have a debate with Mike? I sincerely doubt it. Spell it out. Be explicit. I'm not running away. I will address any question directly and honestly. Mike NEVER will do this.

  • On the post: New Year's Message: Change, Innovation And Optimism, Despite Challenges

    antidirt ( profile ), 01 Jan, 2015 @ 05:43pm

    Re: Re: Re: Re: Re:

    True, but almost certainly borne out of frustration trying to engender an honest conversation with persons who proclaim their willingness to debate, and then shut down all debate when things being said do not support their pre-conceived views.

    This is the problem in a nutshell. Thank you. I've never seen a group of people so incredibly hostile to other points of view--all the while professing to value multiple viewpoints.

  • On the post: New Year's Message: Change, Innovation And Optimism, Despite Challenges

    antidirt ( profile ), 01 Jan, 2015 @ 05:39pm

    Re: Re: Re: Re:

    You think "Bawk! Cluck! Moo!" are substantive things?

    That really says a lot about you.

    Why are you pretending like that's all I ever said? There have been hundreds of substantive issues I've called Mike out on where he either didn't respond or ran away when he realized he couldn't score a point. I said "bawk" and "cluck" because he's a chicken--too chicken to ever stand behind his ridiculous claims. I said "moo" because I thought it was disgusting how he milked the Swartz tragedy. I welcome Mike to discuss any issue, any time, and with anybody he wants to back him up. The very notion that I don't want to have this substantive discussion is fucking hilarious. Nothing scares Mike more.

  • On the post: New Year's Message: Change, Innovation And Optimism, Despite Challenges

    antidirt ( profile ), 31 Dec, 2014 @ 06:42pm

    I love these year-end posts where you pretend like you're not completely bitter about everything. The problem is, the other 99.99% of your posts tell a different story. I think you're a smart guy, and you might even be a nice guy, but I just don't get the constant whining and sensationalism. You make some of most ridiculous claims I've ever seen, and then when called out in the comments, your twits pile on and you run away. Your "community" is a fucking joke. The hostility shown to anyone who dares challenge the group-think is embarrassing. You should be ashamed at the way your flock abuses dissenters. But I'm sure you just love it, because they take the heat off of you. How about writing some stuff that you can actually defend with a straight face? How about some honesty and integrity? How about setting an example in the comments? Year after year, you just become more and more unreasonable. You should hear what they say about you. It ain't pretty. Happy New Year, Mike.

  • On the post: Sony's Own Copyright Infringement Shows How Broken Our Copyright System Is Today

    antidirt ( profile ), 29 Dec, 2014 @ 12:19pm

    Re: Re: Re: Re: Re: Re: Wrong deduction

    You are a known troll who has proven time and time again that you are not interested in discussion and do not deserve answers.

    LOL! He does NOT really believe that replying to an email with quotes is infringement. He's so dishonest that he keeps saying it anyway. Keep making excuses for him. I'm sure he appreciates it.

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