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  • Jun 21st, 2018 @ 7:44am

    Re: Re: Re: Re:

    A created monopoly is by definition not a natural monopoly. If you knew what a natural monopoly was, you would understand that.

  • Jun 21st, 2018 @ 7:43am

    Re: You are mixing up things.

    What you're missing, or at least not pointing out, is that it only "helps" by taking away part of a "hurt" (the caps) that the ISPs themselves inflicted - and continue to inflict, everywhere outside of the scope of the limited exemptions they deign to offer.

    It's technically within the bounds of the meaning of the term to describe that as "helping", but it's not nearly as simple a positive thing as just that term alone would make it sound.

  • Jun 21st, 2018 @ 4:52am

    Re: Re: Re:

    Well, of course. (Although that's not "putting aside his lie about how his actions were guided by law", as per the previous comment.) Even in my most charitable interpretation, pointing at that duty is little (if anything) more than a non-sequitur attempt at deflection.

    Though I imagine he'd argue that he is basing his decisions on expert analysis, et cetera - it's just that, as he probably wouldn't admit, he's being (probably impermissibly) selective about which experts he pays attention to and which analysis he considers relevant. Indeed, I think the aforementioned "lie about how his actions were guided by law" may be arguing exactly that.

  • Jun 20th, 2018 @ 9:17am


    My understanding is that procedure requires that they, rather than treating the comments as a way to ascertain what the majority wants, use them as a source of substantive input about what the situation on the ground is and what the consequences of a given move would be and so forth.

    If two or more comments express the same idea, that makes it less likely that that idea is a mistaken outlier, assuming that the comments were not coordinated from the same root source - but otherwise, that fact is not supposed to give that idea any more weight than if it had been presented in only one comment.

    He didn't express it ideally (and I'm not sure he could have, given the reputational environment he's created for himself), but I think that particular comment was just an attempt to point at the duty of the FCC to base its decisions on expert analysis rather than on public opinion.

  • Jun 20th, 2018 @ 5:02am

    Re: Re: Re: Re: Re: Re: accepting exceptions

    I'm not sure you're being entirely fair, here.

    In a hypothetical country with separate legislative and judicial branches but no Constitution, if the legislature passed a law which said in clear and absolute terms that "X is forbidden", and a court ruled that "in cases like Y, X is not forbidden", that wouldn't be just statutory interpretation; that would be blatant contravention of the text of the statute.

    To argue that the same holds for similarly absolute statements in the Constitution doesn't seem problematic to me - and that does seem to leave it at the question of what statements in the Constitution are similarly absolute, and thus at the question of whether the wording of the First Amendment is such an absolute statement. Or, as the previous commenter put that latter question: "What's unclear about "shall make no law"?".

    Muddying the waters, of course, are decisions - legislative and/or judicial - from the early days of the republic (which I seem to recall reading about even though I can't currently remember any of the details) that some particular bits of speech can be prohibited.

    If the wording in the First Amendment was intended as an absolute statement of that nature, presumably the people who intended it as such would have opposed these decisions - but, IIRC, some of them actually supported if not outright made the decisions. That would seem to imply that the prohibition wasn't intended to be quite so absolute as its literal text would imply, which opens up the door to interpretation as to exactly what exceptions to the prohibition there might be.

  • Jun 20th, 2018 @ 4:46am


    Oh, they're right on that first point: these rules do distort competition.

    It's just that what they distort it from is the state of monopoly and/or oligopoly to which these things naturally devolve (the similarity to the term "natural monopoly" may, in fact, not be a coincidence), and what they distort it to is a situation in which there is more competition between providers (because there are more providers to be able to compete).

  • Jun 15th, 2018 @ 4:15am

    Re: Not hopeful

    For reference, the original form would be "Never attribute to malice that which is adequately explained by stupidity.".

  • Jun 11th, 2018 @ 8:56am

    Re: Re:

    I read "microphone controller" as probably referring to a video-game controller in the shape of, and containing, a microphone.

    Sort-of the flip side of using video-game controllers with vibrational feedback for sexual gratification, I suppose?

  • Jun 8th, 2018 @ 2:20pm

    Re: Re: Re: Re: Re:

    Per the quote in the article, they went in not only guns drawn (which might be supportable, although it's at least questionable), but guns pointing - and one of the primary rules of firearms safety is "never point your gun at something you do not intend to shoot".

    Note: that's not "would be willing to shoot", or "think you might have to shoot". It's "intend to shoot".

    By that token, pointing your gun at a place where you don't know what's there is near-criminal irresponsibility - and I'm not entirely certain about the "near" part.

    If they were pointing their guns at a place which they didn't know (to a reasonable level of certainty) had no one in it, they were either expressing their intent to shoot anyone who might be there, or demonstrating that they are not competent to pass basic firearms safety training.

    If you aren't sure whether or not there's someone in a place, you do not point your gun at that place, unless you are intending to shoot whoever might turn out to be there.

    The classic "enter a room with gun drawn, swiveling to cover possible hiding places" scenario is appropriate for a military force, in wartime; it may also be appropriate for a SWAT team, up against adversaries who are known to be armed and willing to attack.

    It is not appropriate for routine policing, against ordinary criminals.

    It is even less appropriate for "we are here to help you" policing, where there are no criminals involved and the only danger is that the person the police are supposed to be trying to help will harm herself.

  • Jun 6th, 2018 @ 7:47am


    I think their reasoning is something like:

    • The Fourth Amendment requires that the search be reasonable.
    • However, the Fourth Amendment does not say that the only way for a search to be reasonable is for it to be predicated on reasonable suspicion.
    • Because border enforcement cannot meaningfully be carried out without border searches, searches pursuant to border enforcement are presumptively - if not inherently - reasonable. (There's probably a long line of other reasoning underlying the border-enforcement thing, which I don't have ready to mind.)
    • Therefore, because border searches are reasonable for reasons not related to suspicion, they do not require reasonable suspicion.

    If you want to contest the conclusion, you'll probably need to contest the very idea that border-enforcement searches are presumptively reasonable, if not the underlying basis for that idea. How best to do so I am not sure.

  • Jun 4th, 2018 @ 8:47am


    There is one, very prominent, exception stated in the text of the Fourth Amendment itself: reasonability. A reasonable search does not require a warrant. (And if I understand matters correctly - which is difficult, because the Fourth Amendment doesn't actually specify - all a warrant does is override the individual's refusal to agree that the search is reasonable.)

    The dispute is over what qualifies a search as reasonable. Over the years, the courts have established many guiding principles to make that determination, and many people now think that the cumulative effect of that gradual development has been taken too far - but that single stated exception is what they're all based on, and what is argued to make them constitutional.

  • May 31st, 2018 @ 8:12pm

    (untitled comment)

    In theory, I think a ruling that "yes, this is prohibited, but that wasn't clearly established" is considered to clearly establish for future reference that it's prohibited, so if a sufficiently similar situation comes up again in the same court's jurisdiction, qualified immunity will not apply.

    Of course, the definition of "sufficiently" similar can cover a multitude of sins...

  • May 31st, 2018 @ 4:23am

    Misread the headline

    It probably says something about how much attention I pay to this area of the market - and something else about Vevo's marketing efforts - that I initially thought the headline was referring to a product or service known as "the Vevo Flop"...

  • May 31st, 2018 @ 4:19am


    As I understand things, it's a question of creative input.

    In all of the first set of scenarios, you determine when the photograph gets taken, and you define the circumstances which determine what the contents of the photograph will be.

    In the first four scenarios, you are defining the framing (and probably the exact contents) of the photograph.

    In the first and third (and possibly second) scenarios, you are explicitly triggering the photograph itself to be taken.

    In the fourth and fifth (and possibly second) scenarios, you are configuring the camera to take photographs automatically, thereby determining the timing (et cetera) of the photographs.

    (As I understand things, the element of creative decision is what differentiates a "photo every X seconds" setup like the one in your "back of a horse" scenario from e.g. a security video camera, which - after all - simply takes a photograph every tiny fraction of a second.

    It's my understanding that not all such security-camera recordings qualify for copyright (if indeed any do), and that the fact that the aspects which might ordinarily require creative input - the positioning of the camera, the framing of the image, the timing of the photograph, et cetera - are instead all defined by the business requirements which necessitate the placing of a security camera in the first place is the reason why they do not.

    Deciding to take pictures automatically from the back of a horse may be creative. Deciding to take pictures automatically from a fixed location in order to catch people if they do something wrong is not - or at best, it's the kind of creative which can result in a patent, which would be long since expired.)

    If you set up the camera to take a photo every so-many seconds, and then set it down on the ground in front of a monkey with the intention of capturing any photographs that might result from the monkey's playing around with the camera, that might be enough creative input to qualify you for a copyright on the result. (Although you'd also run the risk that the monkey would ignore the camera, or break it, or that the playing-around would result only in uninteresting photographs.)

    But if you didn't set up the camera to take photographs automatically - if your only input to the situation was providing the camera into a context where there was also a monkey - where was your creative input, and what did you do that was creative enough to deserve the monopoly known as copyright?

    In the actual situation which occurred, it appears that the human who owned the camera not only didn't configure it to take photographs automatically, he didn't have any idea that setting the camera down there might result in the monkey taking photographs. None of the creativity which went into the resulting photographs was his; as such, his input into the result was not sufficient for him to be granted a copyright on that result.

    (I suspect that that "completely of the monkey's volition" element of the situation is part of what makes the photographs in question so interesting to the public, as well; ones resulting from an automatic-photo-taking scenario might not have become nearly so famous.)

  • May 31st, 2018 @ 3:45am

    Re: Re: "Commit suicide" / "hostile foreigners"

    Yep. The classic definition of the sin of Sodom is one variation or another on "inhospitality".

  • May 29th, 2018 @ 7:01am

    Re: Do ya feel lucky Bennett?

    This isn't just troll-feeding; it's active troll-baiting.

    Respond to him when he shows up if you must, but this sort of comment just makes things worse.

  • May 29th, 2018 @ 6:29am


    I believe that in that case, the human set up the camera, arranged the shot (e.g. the intended framing and backdrop), and defined the conditions under which the taking of the picture would actually be triggered, so the human would hold the copyright.

    By contrast, in the monkey-selfie case, neither the position of the camera nor the trigger condition for the shot - nor, indeed, apparently anything else about the photograph, except perhaps for things like focus, shutter speed, and aperture - was controlled by the human; all of those things were controlled by the monkey, so the human's input was not sufficient (nor sufficiently creative) to qualify for a copyright.

  • May 28th, 2018 @ 6:02pm

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

    For the same fundamental reason that there's a point in slapping a label on having so strong of a market position that no one can dislodge you from it, even if you engage in anti-consumer behaviors like price gouging: because that situation is different enough from the general norm that it may need to be treated differently in some cases, so it's worthwhile to be able to refer to that situation conveniently.

    There are differences between those two scenarios, of course, and they're important ones. I am not at all saying that the ways those two situations need to be treated are the same, or even necessarily similar.

    But if we don't have a separate term for that other sort of strong market position, people who think that it does need to be treated differently from the general norm are going to continue to misapply "monopoly" to it (and thereby imply that it should be treated the same way we treat monopolies), and that's just not helpful.

  • May 27th, 2018 @ 3:55am

    Re: Re: Re: Re: Re:

    Yeah - there's a reason I phrased that as "I think the idea is".

    I do think that that level of influence is something which needs to be recognized as enough of a Thing of its own to have a single name, much as "monopoly" does, but I don't have any good suggestions for what that name should be.

  • May 26th, 2018 @ 4:30pm

    Re: Re: Re:

    I think the idea is that no company which does not have so much market influence (etc.) in a country as to qualify as a manopoly can possibly be the sole/primary provider of a service to so much of the country's population that the country's government would have reason to be afraid of the backlash from that population if the company decides to pull service from that country.

    Thus, if Google or Facebook or so forth pulling out of the EU would get the public up in arms against the government which put in the laws that got them to pull out, Google or Facebook or so forth must have a monopoly.

    That doesn't quite fit the standard definition of a monopoly, but I think I see enough of a valid point in the argument that if "monopoly" is technically not the right word to use, we need to find one which is.

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