James Burkhardt’s Techdirt Profile


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  • Feb 20th, 2019 @ 3:29pm

    Re: Re: Re:

    Interesting, that data doesn't seem to be in the KTVU article. It looks like it is in the lawsuit, but I didn't read it fully. But my commentary stands, replacing "Rental Agency" with "registered owner"

  • Feb 20th, 2019 @ 3:09pm

    Re: Re: Re:

    Id also note that given the MP's attitude, it seems there is at least a general attitude in her country that such photos are not obscene, otherwise it would not be an issue.

  • Feb 20th, 2019 @ 12:26pm

    (untitled comment)

    In fact, Facebook doesn't accept breastfeeding pictures, so they are already setting new social norms. A new generation may grow up thinking breastfeeding is obscene. The platforms are already regulating speech, and people who are scared about regulation should understand that it is Mark Zuckerberg who is regulating speech right now.

    Well, that is a majorly disingenuous commentary. Facebook doesn't accept breastfeeding because, in the US, breastfeeding is seen by previous generations as obscene, largely because any exposure of the breast is seen as obscene by those previous generations. To blame FACEBOOK for the previous generation's morals being transferred to the next generation is absurd. Now the issue is of course that she is actually concerned about Facebook transferring puritan moral standards from the US to the EU. So its not about how big Facebook is or that it is censoring speech. Its that Facebook is moderating speech based on someone else's moral compass, rather than hers. Which leads to the very argument against moderating social media content via statute or regulation, wherein the most restrictive moderation law wins.

  • Feb 20th, 2019 @ 11:00am


    The rental agency doesn't have access to that database. They could not have known.

    We are not currently sure where the failure lies based on this article. It appears either the police or the Agency recovered the vehicle, and no one notified those maintaining the database the the car was recovered. Not enough is known to assess if the rental agency failed to notify the police it was recovered, or the police failed to notify the database. The article implies it was not a data entry failure at the agency responsible for the database, but otherwise that is also a possibility.

  • Feb 20th, 2019 @ 10:54am

    Re: Oh it's just a trim, with a little off the top

    Actually, under constitutional originalism, that is not the Supreme Courts job. Under originialism, no body had the explicit power to review the constitutionality of the law. The Supreme court had the same job as any other appellate court, it was just the last step in the appeals process. The supreme court effectively granted itself the power of judicial review in Marbury V Madison and everyone accepted it because it made sense - otherwise the constitution was a worthless piece of paper.

  • Feb 20th, 2019 @ 10:48am

    Re: Re:

    You mean Justice Clarence Thomas, the man born in Georgia, a state which succeeded and therefore would likely have been born a slave?

    In Originalism, being a northerner did not bar the ownership of slaves even. Northern slaves existed and in fact remained slaves until after the civil war - the emancipation proclamation only freed the slaves from states in rebellion.

    The issue of slavery was contentious, and i would not ascribe Stone's claimed intent to the founding fathers as a whole myself. But under originalism, Justice Thomas was not a Person, in the way the founding fathers saw it. He would be unlikely to have been a judge, let alone a supreme court justice.

  • Feb 20th, 2019 @ 10:24am

    Re: "...all men are created equal..."

    Yes, that is a DOI quote. However it is a statement of intent by the founding fathers, a core important feature of Constitutional Originalism. These kinds of documents of intent are very important for understanding of the Constitution.

    I do agree that it has no legal power. But it is a principle upon which the Constitution and the Bill of Rights are founded, and therefore I feel supports my argument. I also feel my post stands absent that one sentence.

  • Feb 20th, 2019 @ 10:17am

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

    IMO, Otherwording is strawmanning. Otherwording frames itself as attempting to rephrase the argument to legitimately highlight a fallacy, inconsistency or contradiction. In reality, other wording is serving to establish a strawman of the original argument and hide the way the argument changes behind the change in word choice. If it does not establish a strawman, it is not a fallacy.

  • Feb 20th, 2019 @ 10:08am

    Re: Re: Re: Re:

    You interpret the capacity to change the law as being in support of a specific interpretation, despite none of that being said.

    Stone did not in this statement support barring hate speech. He stated antagonism to the idea that our understanding of the law must be bound to 300 year old perspectives of society and the law. He is also doing so in an article about Justice Thomas seeking to reverse all interpretation and standards laid out by the court, throwing out the principles of precedent established in the constitution in favor of bespoke applications of statute.

    Your connection to hate speech seems to come out of the quoted Ken White comments in the article, that the only people seeking to undo NYT vs Sullivan are those in support of hate speech laws. Which since Stone here is not expressing support for Justice Thomas's originalism arguments it is better to assume he does not want to overturn NYT vs Sullivan and therefore does not support stamping out hate speech.

  • Feb 20th, 2019 @ 9:57am

    Re: Re:

    Originalism establishes the idea that the strict historical meaning of the constitution is the only way to approach understanding the meaning of the constitution.

    Most progressives who you claim to adhere to a 'living document' standard, don't quite follow the definition you apply. Instead, the progressive approach is to apply the principles of the Constitution to an evolving world.

    By strict historical standards if you were not a white, wealthy, male property owner, you were not a person. If you want strict originalism, no one who was not a white, wealthy male property owner has any rights what so ever.

    We evolved that meaning. It admittedly took constitutional amendments to define person to be more than that, a fact that I think should shame this country.

    The country is a living, evolving country. You take a principle, that all men are created equal, and apply it more broadly because you accept that women are people too. You take a principle, that the government should not decree what speech is permissible, and form a framework around the idea of not unduly burdening speech.

    Copyright, the power granted to congress, is wholly incompatible with the historical understanding of what power congress was granted. But we took the principle of the exchange of value enshrined in the Consititution, that the government would grant limited exclusivity in the exploitation of the 'sweat of the brow' needed to implement an idea, in exchange for the creator providing that implementation to the public. (abstract to cover different forms of copyright and patents). We took that principle, and applied it to more and more types of works. And loosened the limited exclusivity (as debatable as that is).

    Because its not the document that is living. the country and the world are living entities, and a static document is unable to continue to provide guidance as what exists in the world continues to move beyond what existed at the time of its writing.

  • Feb 19th, 2019 @ 12:26pm


    The biggest issue is standing. In this case its a crap shoot if you can get standing by preempting the law, because to do so you have to claim you expect to be charged for facilitating sex trafficking, something no one wants to claim. Even if it is a concern, standing requires it to be likely to occur, not just a possibility.

    Because of this, it will take actual FOSTA charges to allow a challenge to be brought. Something that hasn't happened because the only site they think they could have gotten away with it against was back page. It'll take a while before the fear dies down and content that might trigger the law shows back up on the clear web.

    Give it a couple years, someone will slip up, THEN we can get a legal challenge.

  • Feb 18th, 2019 @ 8:47am

    Re: Re: Re: Re: Re:

    WIreless congestion might result in dropped packets resulting in something that on the surface approaches automatic, across the board throttling. But a managed throttling slows down connections evenly. Because while odds suggest everyone would be effected proportionally, that is not the neccisary result. In fact, one factor of a random event like this is that it becomes likely that the degradation would not be evenly distributed. You are likely to get clusters of packet drops. (its a human failing to assume seemingly random events will necessarily produce an even distribution of results at any given scale below infinite events). You are not evenly serving your customers, even if you are making no choice as to whose connection is harmed more than others. A managed throttling of connection speeds to reduce load, in contrast, makes the outcome of a consistent experience in the moment much more likely, and provides for options such as not impacting potentially critical emergency services on the network. This is without considering concerns of data corruption during the congestion.

  • Feb 15th, 2019 @ 11:25am


    To add on to Thad's comment, as we see in the comments here, there are large swaths of people invested in fighting piracy who take any effort to suggest that abuse of the system is no big deal. These people are often backed by the legacy powers with big pockets.

    Contrastingly, the fraud is, on an individual level, pretty small. An elected AG can't make a name for themselves off the individual complaints. And there is enough chaff from big powers that it takes a lot for the AG to see the forest rather than the trees.

    The check within our system is supposed to be the courts and the various state bar associations. But the costs of actual court defense are high, and even then state bars have been reluctant to then assess real penalties for the behavior.

  • Feb 14th, 2019 @ 11:01am

    Re: WTF?

    The lawsuit in Texas was preemptive, an attempt to knock down the law before it was enforced. After that dismissal they got this demand letter, and that started a whole new legal fight.

  • Feb 14th, 2019 @ 9:02am

    Re: Re: Re:

    I am not saying that upgrades aren't important. However, that doesn't resolve in the moment congestion. It doesn't resolve spikes in demand outside common usage in the area, and certainly not in the moment. Because demand for wireless data is highly variable in the moment, even with tower upgrades you can encounter sudden, unexpected spikes in demand that some sort of in the moment network management becomes necessary.

    The obvious choice is to throttle connections in some form. Most would likely argue automatic throttling across the board to bring the in-the-moment load in line with capacity is the right way to go. Others might argue that exempting first responder/emergency responder connections from throttling is a good approach, as that kind of demand spike can be generated by emergencies in progress. Other debates might be had that throttling should be proportionate to usage.

    In no case is the answer to do nothing about the sudden temporary demand spike, causing significant decline in connection quality and lost and corrupted data, until a team can come out to install a new tower or increase the throughout of the backhaul.

    And of course those upgrades might just be unused capacity 90% of the time, and those funds might be better used in areas with chronic issues with capacity.

    Upgrades are very necessary. Improving the infrastructure is necessary. But that doesn't mean there are not times where the network might need to find ways to reduce the localized load on specific towers that aren't just wait for an upgrade in a few weeks/months.

  • Feb 14th, 2019 @ 7:48am


    So, there is a legitimate reason to throttle wireless connections. In areas that are facing demand that outstrips network capacity, throttling is a valid network management tool. We can debate who is throttled and on what basis, but when facing congestion it is undeniable throttling is valid and possibly necessary to reduce demand on the network in that local area while providing service to all customers.

  • Feb 13th, 2019 @ 4:02pm


    I live in the bay area. $7,500 is significantly more than I make in a month, and is sufficient to find a one bedroom apartment along with food and utilities and other costs of living, though likely not an upscale one. If policy makers have to either dip into their own funds or live like a normal person, perhaps that is for the best.

  • Feb 13th, 2019 @ 10:28am

    Re: Re: Freeriding

    Free riding in this case is the idea that other news establishments will parrot the reporting of the first to publish, and therefore any income is a 'free ride', they are getting income from the sweat of the brow of the original reporting.

    While it might be a concern, its been a well understood fact of news for decades now. And it ignores that many news orgs might already have sweat of the brow in that same topic but were merely beat to the publishing line by a different organization. That is why the facts don't have copyright in them. Because 'first to publish' doesn't give you ownership of the facts.

    Its just more we are failing as a business and want more money flailing.

  • Feb 13th, 2019 @ 10:23am


    If all you have is facts, then you have nothing that is granted copyright protection. If your business model relies on exclusive content then your 'hot news' needs something you can hold exclusivity on. Hot News only covered facts, and if all you have is facts, readers/viewers are going to naturally lean toward news outlets they primarily visit.

    If you can not provide anything other than facts to the consumer, just because you are first to acquire the facts in no way entitles you to ownership of distribution of those facts. Hot news allowed the first to publish to potentially own facts that conceivably several outlets had put the effort into discovering. For instance, multiple outlets might read the tea leaves on an indictment and all be staking out waiting for an arrest - but only one news outlet could publish. Even if several outlets had put in effort, the first person with a front page in the wild got all the credit and were allowed to sell the paper they all manufactured. Whatever good it might have had, the doctrine also lead to contradictions in its stated sweat of the brow intent.

    If you want to produce value out of facts, you need more than a government enforced monopoly to entice consumers. The first to publish likely has a head start if not exclusive access to sources, they know where to look for more (hot news generally involves developing stories), they have in theory, the best information. That is an advantage they can sell. Once they report the facts those facts are available to everyone. But that does not give the insights the first publisher may have to its competition.

  • Feb 11th, 2019 @ 3:06pm

    Re: 'We're not in your country... here's the money you demanded.

    The shutdown of the office failed to protect Google it would seem, but that does not mean it failed to protect employees who could have faced more direct threats.

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