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  • Sep 20th, 2016 @ 6:46pm

    Re: It's all results driven...

    I wouldn't make it a small fee, I'd make it a significant fee for completely bogus links (enough to cover legal review, so at least 1-2 hours at standard lawyer's rates). Plus I'd change the rules to require the notice to include the amount of damages claimed for the allegedly-infringing content. If the link happens to refer to real content whose owner isn't the entity represented in the notice, the sender of the notice owes a penalty equal to the claimed damages on top of the bogus-notice fee payable to the site. The sender can only avoid the penalty by showing that they have a sworn declaration from the entity they represent saying the content really does belong to that entity, in which case the entity owes that penalty to the site plus an equal penalty to the actual owner of the material for misuse of copyright (falsely claiming ownership for the purpose of interfering with the real owner's distribution of their copyrighted material).

  • Sep 19th, 2016 @ 12:04pm


    I think the judge gave the 4th factor little weight because in this case the "market" for the work was strictly the judge involved in the case. Nobody sells legal briefs. They may sell templates for formatting legal briefs and maybe handling the boilerplate text, but there isn't a market for complete specific briefs. That renders the 4th factor largely useless in this particular case. Then there's the purpose for which it was copied. It's one thing to copy Newegg's brief for the purpose of presenting Newegg's brief (eg. "The facts and arguments in our case are identical, and Newegg has argued them in their brief as eloquently as we could so we don't want to waste the court's time repeating what's already been said. We attach Newegg's brief in it's entirety for reference if necessary."), it's another to copy the text of their brief for the purpose of presenting it as your own brief. Especially when you copied it before it was filed and became part of the public record.

  • Sep 12th, 2016 @ 10:38am

    Re: Re:

    There's a principle in both tort and criminal law that the defendant has to take the victim as they are, not as the average person would be. It's often called the eggshell-skull principle. The prosecution should have to prove that Ravi's actions did cause the suicide, not just "may have" but "did, beyond a reasonable doubt", and that what Ravi himself actually did was illegal (you never face criminal liability for acts which aren't themselves criminal, but the outcome of criminal acts should never be irrelevant.

  • Sep 1st, 2016 @ 4:30pm

    Re: Re:

    Not entirely correct. In these cases it's not a public page that's being viewed, it's a page restricted by an account login which can't be viewed without providing the correct credentials. Authorization to access it can be revoked or not granted by revoking the account's credentials or not granting them in the first place. The twist here is that the credentials weren't issued to the entity viewing the page but to the account-holder who then gave the viewing entity the credentials in violation of the terms of service the account-holder agreed to.

    Facebook would be fine if they just revoked the credentials, and sharing those credentials with Power Ventures is according to the ToS more than enough grounds for doing just that. Facebook's trying to shut down Power Ventures without cutting the account-holder off though, and the CFAA arguably isn't something that can do that (especially since PV didn't alter any data or do anything else that would cause damage in the sense the CFAA defines it to Facebook's systems).

  • Sep 1st, 2016 @ 1:51pm


    There's some differences though. The biggest one is that there's more than just the business involved. The equivalent would be a mall occupied by multiple businesses. What happens when it's the mall that's thrown someone out, but a particular business in the mall invited them in and authorized them to come into that business. In a case like that, speaking as someone who's been in the mall's position, the cops and/or the DA's going to take one look at the invitation from the business and drop the whole thing after telling the mall it's between them and the business.

  • Aug 31st, 2016 @ 10:52am

    Re: Re: Re: Sorry armchair lawyers.

    And, as I already noted, the journalist isn't claiming he got the chart from JPP or his representatives (ie. those having a form signed by JPP saying they're allowed to receive medical information and make decisions on his behalf). It'd be a slam-dunk defense and grounds for dismissal if he asserted that and it could survive refutation, that he hasn't asserted it suggests he and ESPN are pretty sure it'll get shot down in short order.

    Other health-care providers, even if they have a release authorizing them access to the records, are governed by HIPAA when it comes to their handling of the records after they receive them and the releases don't and can't relieve them of that responsibility.

  • Aug 31st, 2016 @ 12:52am

    Re: Re: HIPPA does come into play

    No, he isn't. And as such, he would not be permitted access to JPP's medical chart if he asked to see it. If he got it from a health care provider, he would know (at the very least because it's general public knowledge) that that HCP was violating HIPAA in giving out the medical chart. If he got it from someone who wasn't a health care provider, then he would know that that party had no more legal access to it than he himself would unless the other party were (as I noted) JPP himself or his authorized representative. And I don't recall where Schefter claimed to have gotten the medical chart directly from JPP.

  • Aug 31st, 2016 @ 12:48am

    Re: Sorry armchair lawyers.

    In this case they can, since the journalist doesn't dispute that it's a medical chart. The only people who have legal access to those are the patient and medical professionals who are bound by HIPAA not to disclose it. The journalist isn't claiming JPP gave it to him, which leaves no party with legal access to the medical chart who could give that chart to the journalist. Even if it went through several hands, the journalist still knows that whoever he got it from got it from someone who was breaking the law. As the Court noted in Bartnicki, when the material isn't of public concern the First Amendment issues are very different than they are for matters of public concern and discourse. The First Amendment protects your right to speak your mind, not your right to dig into any random private individual's life and broadcast all the details of it to everyone.

    It would also be a different matter if the journalist were claiming that JPP or his authorized representative had provided the medical chart, or at least that his source had claimed such. As far as I know the journalist hasn't, probably because that claim would be easily refuted and would put the journalist in an even worse spot than he's in now.

  • Aug 30th, 2016 @ 5:55pm

    Re: Re: HIPPA does come into play

    Firstly would be the "public concern" aspect. In this case the contents of the medical chart and the details of treatment wouldn't be a matter of public concern in the sense Bartnicki is speaking of. In fact, the decision you linked to specifically says the Court does not address the question when the information isn't of public concern. That alone's enough to distinguish the cases.

  • Aug 30th, 2016 @ 4:28pm

    HIPPA does come into play

    I think HIPPA does come into play because the journalist would know that his source couldn't legally be providing a copy of the medical chart. The journalist would certainly be aware of HIPPA and at least it's general parameters, and under no reasonable interpretation could anyone (other than maybe JPP himself) disclose the medical chart to the journalist without violating the law in the process. That puts things in a somewhat different light than if the journalist didn't know he was disclosing confidential information obtained illegally.

  • Aug 28th, 2016 @ 6:19pm

    Re: Re: Re:

    Not really. On Linode you set up 2 servers, one for primary MX plus POP3/IMAP4 and one as a backup MX, for about $35/month. If you want to trim back to bare minimum you can get it down as low as $10/month (single instance of their smallest server, no backup MX and no data backup). For me the benefit's being able to enforce my own policies on mail handling ("Spamhaus Zen list entry = reject and hang up, no exceptions" in particular kills 99% of the spam).

  • Aug 26th, 2016 @ 8:33pm

    (untitled comment)

    If you want your own mail server on your own domain, you absolutely don't want to host it at home. It's a technical nightmare due to port 25 blocking and dynamic-IP-address issues. For your average person, their best bet's to find a knowledgeable local geek who'll take some money every month to maintain a server for them at a hosting company (if the geek's already got their own server running, it's very little work to add another domain to it).

  • Aug 18th, 2016 @ 3:48pm

    Re: Re:

    Oh gods, if only. No, but it does include things like "The text can be in any character set, in fact different sections of text can be in different character sets. There is no place in the data to indicate which character set.".

  • Aug 18th, 2016 @ 12:09pm

    (untitled comment)

    Unfortunately Paypal may not have any alternatives. They're required by law to check against the government's OFAC lists, and if the query returns a match they're required to red-flag the transaction. OFAC controls the algorithm used to match names against the list, and you aren't allowed to ignore a "match" result regardless of why you think it matched. OFAC's lists are of course murky at best, typically out-of-date because of lag updating data, and prone to false matches, but the payment agency's not permitted to take that into account and OFAC doesn't care because they aren't held responsible or liable for the errors. (Yes, I've had to write code to handle OFAC queries per regulations. No, it's not as bad as you think. It's worse.)

    The only way that'll change is if consumers start lighting fires under the politicians over the issue of rules that do more harm than good but are defended by ignoring the harm done.

  • Jul 21st, 2016 @ 5:17pm

    (untitled comment)

    Seems like it should be possible to argue on appeal that the 3rd-party doctrine doesn't apply because the appellant didn't release the information to a third party. It was only released to the third party by the officer, and the police should have a harder time arguing that they had the right to release the appellant's private information to a third party without appellant's consent than that they merely had probable cause to search the phone.

  • Jul 15th, 2016 @ 7:14pm

    Re: Pirated APKs can contain malware

    This is very likely. Mobile malware's a big hot-button issue at the moment, and the single biggest way mobile users acquire it's by installing software from sources other than the official stores (ie. third-party stores or side-loading).

  • Jun 20th, 2016 @ 12:10pm

    We've heard this before

    "Papers, please."

  • Jun 9th, 2016 @ 2:26pm

    Re: Re: Re: Re:

    The newspaper can't go out and collect all the papers already distributed, but it certainly can cancel the ad (regardless of whether there's additional time left on the purchase) and not publish it in any more copies of the paper it prints. Just as the forum can't remove any saved copies but certainly can remove the post so it won't appear in the future. No liability attaches to that removal, the site can't be sued for taking down the post in response to the court order.

  • Jun 9th, 2016 @ 1:37pm


    No, he couldn't. At least not in the general case. To order something like that, he'd have to have found the parking lot in gross violation of local codes resulting in the lot being a significant cause of the argument, but the likely ruling in that case would be that the plaintiff would have to add the store as a defendant first and then the court could address the claim.

    The only way your scenario could realistically come about is if the judge found that the local codes required or encouraged a parking lot design that directly contributed to arguments in a way that wasn't lawfully allowed and ordered the locality to change it's codes to remove the unlawful aspect. The store'd then have to rebuild the parking lot to comply with the new local codes as a result, but that wouldn't as far as the law is concerned be directly connected to that case.

  • Jun 9th, 2016 @ 1:30pm

    Re: Re:

    Except it doesn't lead to any liability for any action of the user. It's exactly the same situation as if someone had taken out a defamatory ad in a newspaper and the judge, after finding for the plaintiff, ordered the ad taken down. The newspaper may suffer penalties if it refuses to comply with the order, but that's liability for it's own action (refusing to comply with the order), not for anything the defendant did (having the defamatory ad run).

    There's certainly a long string of cases saying you can't sue the site to get the material taken down, but that's a different question from having the site take the material down after the poster's been sued and the plaintiff won a ruling in their favor.

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