average_joe 's Techdirt Comments

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  • On the post: RIAA Really Planning To Join Righthaven Fight

    average_joe ( profile ), 05 Dec, 2011 @ 10:45am

    Re: Not that I disagree with Randazza

    Again, don't disagree with Mr. Randazza, but I suspect this will not achieve what he wants.

    It is rather petulant of Randazza to fire off this warning letter to them and then to give a copy to Mike to share with the world.

    This isn't an attack on your client, Marc. This is about the judge completely blowing it. If you were being honest you'd admit that.

  • On the post: RIAA Really Planning To Join Righthaven Fight

    average_joe ( profile ), 05 Dec, 2011 @ 10:21am

    Good grief. The judge ruled that the court didn't have subject matter jurisdiction but then reached the merits of the fair use defense anyway. And the fair use analysis was completely botched. Filing an amicus brief to point out these obvious errors doesn't mean they will "take up arms for Righthaven."

  • On the post: Alternative To PIPA/SOPA Proposed; Points Out That This Is An International Trade Issue

    average_joe ( profile ), 05 Dec, 2011 @ 08:48am

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

    This is the final draft. It's out of committee, now it can only be voted on.

    And yet a markup of the bill is scheduled for Dec. 15th. Do you actually ever know what you're talking about, Karl?

    You'll forgive me if your approval does not exactly inspire confidence. I wrote a (too-lengthy) comment about the things I believe must be in the bill in order for it to be constitutional (and fair). Keep in mind that most of what I wrote is not in either bill.

    I think I read the post you're referring to. The fact that you have absolutely no legal training is quite obvious. You attempting constitutional analysis of anything is hilarious. Sorry to sound mean, but your cluelessness is epic when it comes to these things. No amount of pointing out how incredibly wrong you are seems to dissuade you, though. You keep on talking like you are an expert.

  • On the post: Alternative To PIPA/SOPA Proposed; Points Out That This Is An International Trade Issue

    average_joe ( profile ), 04 Dec, 2011 @ 06:12pm

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

    We'll see what details he comes up with.

  • On the post: Alternative To PIPA/SOPA Proposed; Points Out That This Is An International Trade Issue

    average_joe ( profile ), 04 Dec, 2011 @ 06:06pm

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

    I see what you meant. You had said the "private right of action, as written, means the courts would not be involved..." A private right of action means the right to bring a specific case to court, so obviously the courts are involved if you're talking about a right of action.

    You're talking about the notice-and-takedown scheme. I think that part of SOPA is silly and obviously shouldn't be in the final draft. I think it's probably unconstitutional and definitely a bad idea. Other than that though, I generally like SOPA and PROTECT IP.

    This whole idea with the ITC seems silly to me. I just don't see the advantage of taking this out of the federal district courts. The discussion draft said something about not wanting magistrates who are unfamiliar with the internet from deciding these things. That's stupid. A 12-year-old can tell you whether a website is dedicated to infringement or not.

  • On the post: Alternative To PIPA/SOPA Proposed; Points Out That This Is An International Trade Issue

    average_joe ( profile ), 04 Dec, 2011 @ 09:14am

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

    Huh? Text please.

  • On the post: Alternative To PIPA/SOPA Proposed; Points Out That This Is An International Trade Issue

    average_joe ( profile ), 04 Dec, 2011 @ 09:12am

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

    Sigh. You might want to look at what Customs and Border Protection does. Believe it or not, law enforcement actually enforces the law at the border--without reference necessarily to the ITC.

    Sorry, Karl, but I know you're not an authority on international trade law. Had you even heard of the ITC before yesterday? I hadn't.

  • On the post: Alternative To PIPA/SOPA Proposed; Points Out That This Is An International Trade Issue

    average_joe ( profile ), 04 Dec, 2011 @ 09:07am

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

    From their standpoint, they would be an exporter; from the standpoint of the U.S., an importer.

    If the person in Mexico shipping the goods to the U.S. is the importer, then who is the person they're shipping the goods to that's in the U.S.? You're not making any sense.

  • On the post: Alternative To PIPA/SOPA Proposed; Points Out That This Is An International Trade Issue

    average_joe ( profile ), 04 Dec, 2011 @ 06:54am

    Re: Re: Re: Re:

    The site would be the importer, so they would be subject to U.S. trade regulations, rules, tariffs, quotas, and agreements like NAFTA.

    And since they are a foreign company, it would be international trade. I honestly don't know how you're not getting this.

    If a company is in Mexico and they ship goods to the U.S., that Mexican company is not an importer. They're an exporter. Sheesh.

  • On the post: Alternative To PIPA/SOPA Proposed; Points Out That This Is An International Trade Issue

    average_joe ( profile ), 03 Dec, 2011 @ 09:35am

    Re: Re:

    In fact, it is exactly the type of trade that the ITC typically deals with:

    If buying fake NFL jerseys and downloading illicit mp3's over the internet was already the "type of trade the ITC typically deals with," then there would be no need to change the law--the ITC would already have jurisdiction. But obviously they're talking about changing the law so that the ITC would have jurisdiction.

    As I said to Mike above, the ITC, as the name suggests, deals in international trade. If I buy a fake NFL jersey from fakeNFLjersey.com located in Mexico, I'm not an importer subject to U.S. trade regulations, rules, tariffs, quotas, and agreements like NAFTA. Give me a break.

    Congress can certainly give the ITC authority, but don't pretend like this is what the ITC already does.

  • On the post: Alternative To PIPA/SOPA Proposed; Points Out That This Is An International Trade Issue

    average_joe ( profile ), 03 Dec, 2011 @ 07:24am

    Re: Re: Re: Re:

    Why do you assume that if the case is handled by the ITC it will be the paragon of "due diligence and proper procedures," but if it happens in a federal district court it will be unconstitutional? That makes no sense.

  • On the post: Alternative To PIPA/SOPA Proposed; Points Out That This Is An International Trade Issue

    average_joe ( profile ), 02 Dec, 2011 @ 12:40pm

    Re: Re:

    How would you describe legislators? Or any other public servant? Is their job title relevant?

    You're implying that an entire branch of government is incapable of action.

    Not at all. My concern is that the problem is too big to limit to one court in D.C. that only has a handful of judges. While that arrangement might be workable for big fish, the little guy would effectively have no remedy.

  • On the post: Alternative To PIPA/SOPA Proposed; Points Out That This Is An International Trade Issue

    average_joe ( profile ), 02 Dec, 2011 @ 12:29pm

    Re: Re:

    From that document: "The Commission also adjudicates cases involving imports that allegedly infringe intellectual property rights."

    Sounds like it covers *exactly* the issue at hand.

    Imports, as in bulk goods coming into a port subject to federal trade regulations, quotas, tariffs, agreements, etc. I'm sure the ALJ judges at the ITC could quite easily decide whether a website is devoted to counterfeiting and piracy, though.

    My concerns are that the process of going through the ITC would be too slow, and limiting the action to one court in D.C. is not convenient for plaintiffs.

  • On the post: Alternative To PIPA/SOPA Proposed; Points Out That This Is An International Trade Issue

    average_joe ( profile ), 01 Dec, 2011 @ 09:22pm

    And one key point has become clear: this isn't a law and order issue, but an international trade issue.

    This isn't the type of trade that the ITC typically deals with: http://www.usitc.gov/press_room/about_usitc.htm

    The trade remedy law that ITC enforces: http://www.law.cornell.edu/uscode/usc_sec_19_00001337----000-.html

    I'm not sure I see how a few Article I administrative law judges in Washington, D.C. will solve the rogue sites problem, no matter what authority they're given.

  • On the post: MPAA Pretends To Capitulate On SOPA, Will Offer Changes For 'Legitimate Concerns'

    average_joe ( profile ), 30 Nov, 2011 @ 08:41pm

    Re: Re:

    Sure. CwF + RtB = do nothing. It's simple math.

    That's the zen approach. Be one with the infringer.

  • On the post: MPAA Pretends To Capitulate On SOPA, Will Offer Changes For 'Legitimate Concerns'

    average_joe ( profile ), 30 Nov, 2011 @ 08:36pm

    Re:

    We do need an alternative bill. One that shortens copy protection lengths, one that makes copy'right' opt in and not opt out while providing for a centralized database that protected works must be listed in for others to look up and better know what's infringing vs what's not (or at least have a starting point for further investigation), one that lowers infringement penalties, and one that puts greater liability on bogus takedown requests.

    There, now did I leave anything out?

    Those are good proposals in general. I'd add a need for broader personal use rights and bright line rules for fair use.

    But none of this addresses the rogue sites problem. How do you suggest we deal with that?

  • On the post: Another Day, And Another Smackdown For Righthaven: Told To Pay Up For Misleading The Court

    average_joe ( profile ), 18 Jul, 2011 @ 09:27am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Abuse of Process

    I get ya. I was just wondering if there was anything more than speculation at this point to believe it is abuse of process. Sounds like you're banking on information coming out later to back the claim. Maybe that'll happen. I don't pretend to know. I was just wondering what reason there is now to think it. You're right about Democratic Underground. I really didn't think anything would have come from the counterclaim. Boy was I wrong about that.

  • On the post: Feds Respond To Rojadirecta's Challenge To Domain Seizures: If We Give It Back, They'll Infringe Again

    average_joe ( profile ), 18 Jul, 2011 @ 08:51am

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

    I just want to add too that I appreciate you making me think about this and challenging me. I know a bunch of what I say is wrong (a bunch is right too) and I'm really trying to figure out how it all works and what the right answer is. I'm not 100% convinced that my view is the right answer, and if it's the wrong answer, I want to understand why.

    I suspect that one difference between our positions is a matter of perspective. If you focus narrowly on the statute as being aimed at conduct that is not expressive, then I think Arcara wins the day. That view is that a domain name is just property used to infringe, so it can be forfeited despite the fact that protected speech is affected. The other view is that what's seized is a domain name, which in turn blocks the content on that site, including protected speech. This is a broader view of things, and viewed like this, a prior adversarial hearing is needed since there's presumptively protected speech involved.

    The more I think about it, the more confused I get, to tell you the truth. The more I think that both sides have merit. Keep chipping away at me, Karl. It appears to be working. :)

  • On the post: Feds Respond To Rojadirecta's Challenge To Domain Seizures: If We Give It Back, They'll Infringe Again

    average_joe ( profile ), 18 Jul, 2011 @ 08:37am

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

    The only copyright cases I know of that have applied intermediate scrutiny (like the test in O'Brien) have been those dealing with the anti-circumvention provisions of the DMCA. Reimerdes and Corley come to mind, but I'd have to read those again to see exactly what was said. There, it was computer code that could be used to infringe. The computer code itself involved a degree of expression, so the DMCA provisions at issue received intermediate scrutiny, which they passed.

    O'Brien used intermediate scrutiny for the same reasons. The act of burning a draft card is partly expressive and partly non-expressive. The expressive part was significant enough that intermediate First Amendment scrutiny was warranted, and the statute passed that scrutiny.

    I think the issue here though is that copyright infringement is not expressive, at least when it's wholesale copying, so any law that regulates it won't be subjected to heightened scrutiny.

    The procedural First Amendment analysis issue is less clear to me. I think that when it's wholesale copying, like we have here, that no prior adversarial hearing is needed. But when it's less clear than wholesale copying, like with a derivitive work, sampling, sequel, parody, fair use, etc., that a prior adversarial hearing is needed. I haven't ironed out that research yet, but there's where I'm at now.

    With obscenity there has to be a determination that the activity is indeed obscene. That's not a problem with wholesale copying since if I'm streaming a WWE match on my website, that's going to be infringement most, if not all, of the time. With obscenity things are not as clear, so there are procedural safeguards. It's a subjective determination. Infringement on the other hand doesn't require a subjective determination, at least when it's wholesale copying.

    Let me know your thoughts...

  • On the post: Feds Respond To Rojadirecta's Challenge To Domain Seizures: If We Give It Back, They'll Infringe Again

    average_joe ( profile ), 17 Jul, 2011 @ 09:33pm

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

    ...which, in every other copyright case, criminal or not, post-Arcara or not, has been the O'Brien standard.

    What cases are you looking at?

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