James Burkhardt’s Techdirt Profile


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  • Aug 16th, 2018 @ 8:44am


    I mean, that cryptocurrency in his sock is great and all, but I found even buying cryptocurrency, let alone using that currency, was impossible without a middleman.

  • Aug 16th, 2018 @ 8:22am


    Yeah, which is why the "games is art" ruling discussed in the article is so important. I dislike the thought crime feel that there is some arbiter deciding what portrayal of Nazi iconography is okay. But it is not an outright ban. Lifting the ban on games, to some level, reduces the very concerns you have. As well, the symbol is shown in educational settings.

    I feel like your statement here is addressing the various problematic VG bans during the outright ban period rather than really discussing the content of the article, in which Germany has moved toward less censorship and more allowed, contextual use of the iconography.

  • Aug 15th, 2018 @ 3:53pm

    Re: perfectly legal?

    Discussions of legality and discussions of morality/ethics are not the same thing. If Techdirt comments on the moral/ethical issues of this ban (what they do here), they are not commenting on the legal status.

    They often comment on the legal status when there is a lawsuit or public response trying to push back against actions with a rally about "Free Speech" to respond to that push back, and often comment on moral grounds when moral panics or ethical panics or corporatist pressure is behind the activity being discussed.

  • Aug 14th, 2018 @ 2:47pm

    Re: Questions to ask the FCC

    4) Has the FCC provided evidence of the harms caused by the 2015 order to the SEC to aide investigation of securities fraud related to statements to investors that the Net neutrality order did not affect investment? If not, why has the FCC turned a deaf ear to statements by ISPs to investors?

  • Aug 14th, 2018 @ 12:23pm

    Re: Re: Re: Re:

    I actually agree, but it must be noted that what you are saying is that Nintendo, who has repeatedly re-released SMB for multiple consoles, is actually doing a poorer job archiving a ROM they must have already used 3 or 4 times in the last decade than hobbyists who have no profit motive?

    Kinda makes my point. If going through the hassle of bringing up that ROM from official storage for that release so quickly after the release of the big anniversary collection is just too much work, they aren't effectively archiving it. A number of games were thought to have been archived, only to find out mistakes were made and images and source code lost (Kingdom Hearts).

    They likely have some original cartridges (why I agree with you). But Given their actions, they might not have an 'official' copy on their servers. And given the apparent difficulty of accessing any copy they might have, it may not be properly stored at all.

  • Aug 14th, 2018 @ 11:21am

    Re: Re: Re:

    Frankly, a lot of copyright holders do this. Hasbro and D&D 4e power cards is a great example. Hasbro had feedback from playtesters that they would actually make little cards with the details of each power on them. The fans built a massive framework to quickly create such cards in a universal format, and distribute card collections easily.

    These options were threatened and slowly shut down when Hasbro finally got their commercial product to market over a year later. Several kept working but never were able to reach fans. Hasbro let fans develop the market, and then injected themselves into the primed market and used questionable copyright claims (the rule-based nature with only incidental creative naming of the cards creates questions in copyright law) to shut down the competition.

  • Aug 14th, 2018 @ 10:06am

    Re: Re:

    As has been stated many times, Copyright's purpose is about enriching the public. The mechanism is the monopoly power. The argument is that the action being committed, taking down a ROM site, is contrary to the purpose of copyright, because the culture represented on that site is not being preserved by the Copyright Holder (evidence exists that some ROMs used by Nintendo in re-releases came from 'pirate' sites). So issues develop that the culture that was supposed to be provided to the public, for the enrichment of the public, may no longer exist when the monopolistic power exists.

    Furthermore, there is a question of the value of many ROMs being taken down. If you subscribe to the assertion that copyright is only about the financial benefits, then the current state of copyright comes into question. If it is only about money, Nintendo clearly sees no financial benefit in most of their retro library, as evidenced by the lack luster, drip-fed Virtual Console releases, lack of a virtual console on the switch, and the frankly minuscule library on the NES and SNES classic. And lacking financial value, why enforce copyrights? This goes back to cost-benefit analysis.

  • Aug 14th, 2018 @ 9:47am

    Re: There must be redaction software out there

    Acrobat Pro has a redaction tool. Draw a box and It flattens the PDF after use, destroying the underlying information. The information is no longer stored. No need to modify the underlying text, the text doesn't exist anymore.

  • Aug 14th, 2018 @ 8:09am


    I would argue that you miss the detail on this situation. Namely, when discussing the burden of Local loop unbundling, telecos use broad language that is short on detail, always highlighting the 'burden', but never explaining what that burden is. Never explaining the scenario in which the presence of this rule makes difficult or impossible moves that are beneficial to consumers. Because there aren't any. Even in a world of competition, I have been unable to find anyone who supports repealing local loop unbundling who can articulate the 'burden' it places on incumbents.

    Contrast this with the support SEC 230, where Techdirt has repeatedly noted how it A) prevents a disincentive to moderation, allowing sites to moderate without fear that moderation will create liability (something that happened prior to SEC 230) and B) puts the focus for illegal or Tortuous conduct on the entities responsible, which can include the website, but often does not. Support for SEC 230 comes out of articulable concerns about the internet post repeal.

    A better contrast comes in the DMCA and calls for its repeal, as we now discuss arguments for repeal on both ends. And again, we see clear, detailed, articulable concerns about how the DMCA is harming both consumers and creators. The abuses we have seen in the take down provisions combines with a lack of legal remedy for those abuses created by poor drafting and bad jurisprudence. The way the anti-circumvention provision has been used to prevent repair, security research, and circumvent the right of first sale. I can point to specific events if you want to hear it, but the point stands that we can point to not just theoretical harm, but real world harms that have occured. And while yes, the repeal of the DMCA might have negative effects for some content creators, Techdirt has, in my memory, generally called for an overhaul of the system, not tearing it down. Notice and notice, rather than notice and take down. Reinforcing fair use and allowing fair use to bypass technical protection measures. Establishing real legal repercussions for the abuse of the law.

    You might think that looking at the effects on consumers and creators rather than copyright holders is 'obfusication'. Or a focus on cost-benefit concerns in enforcement efforts is just 'spaghetti logic'. But here in the real world, those type of concerns are major legal and business concerns, respectively, and should be considered when discussing these topics.

  • Aug 13th, 2018 @ 2:25pm

    Re: Re: Re:

    That is an excellent observation, and proves my point. Thank you.

  • Aug 13th, 2018 @ 1:17pm


    Actually, Stalking isn't illegal. It carries some civil consequences, namely the potential for a restraining order, but not criminal ones. Criminal Stalking is not a thing.

    Also, yes, you are within your rights to attempt to reduce or eliminate the privacy trade-off when going into public. MIke never said anything different. In fact, he noted celebrities do exactly that.

    What else can you misunderstand for me to debunk?

  • Aug 13th, 2018 @ 1:09pm


    Actually, that legal theory has never been tested. The 'archival copy' standard comes as an extension of settled law, it isn't settled law itself. The idea that a site can distribute the copywritten material as 'archive copies', with the pinkie promise that the downloader owns the original is most certainly on shaky legal ground.

    These sites only functioned because there was no money in shutting them down. But with Nintendo monetizing its back catalog, that is no longer the case.

  • Aug 13th, 2018 @ 10:31am

    Re: That large corps can handle it is the solution.

    I think while interesting, your comments fail to address on any level the commentary provided by Mike. I am flagging your post not because of your disagreement with the article or your strawman Mike, but its failure to engage the premise of the article or connect to the article in any substantive way. Your post fails to address the privacy trade-off we all face (or privacy at all), and how to provide consumers (aka The Public) more understanding and control of that trade-off. Mike's commentary is in line with his general position that regulation to 'protect privacy' will only lock in the big corporations due to financial and social pressures.

    I fail to see how an argument that protecting privacy will only support corporations while harming the consumer is pro-corporation, pro-rich, or anti-'The People'. Perhaps I could have, had you made an attempt to connect your commentary to the article it is piggy backing off of. But this appears to be trying to use a popular site (Techdirt) as a means to host your own unrelated rhetoric, which is either trolling or spam, depending on your viewpoint. If you want to express your own ideas you may set up a wordpress blog and have at. But the commentary section of an article should be to discuss the ideas and opinions and events discussed in the article. Connect your commentary to the article, draw conclusions based on that commentary, I would love to engage you on that level. But I will not address your ideas, because it does not support the discussion on the topic this forum (commentary for this article) is designed for.

  • Aug 13th, 2018 @ 10:05am

    Re: Re: "I'd never do X!" "Then a law prohibiting X won't be a problem."

    The idea That One Guy replied to is the hypothetical future where this rule has helped develop a competitive marketplace and is therefore 'unnecessary'. That One Guy argued that removing the rule would provide no value. What you seem to miss is the implication that the rule has value. In the end, this rule streamlines utility pole attachment by allowing the work to be done all at once by a single contractor (rather than individually by separate contractors). The only value in the repeal would be to slow down deployment and prevent competition. Even in a competitive environment, the rule has value, and repealing it has not just no value, but negative value.

    Why? Well because the assumption of the AC is that network competition affects the abuses of Utility Poles. But it doesn't. Because there isn't Utility pole competition, in fact the whole point of these rules is to manage property rights so we don't have utility pole competition issues (causes issues with public right of way, increases potential domino effects from pole losses, ect.). This rule is only tangentially related to net neutrality. this rule fosters competition, and the presence of competition does not impact this rule's ability to foster further competition.

  • Aug 10th, 2018 @ 2:13pm

    Re: Re: Re:

    Well, the troll seems a bit criminal, true. He engaged in bad faith efforts to drive up litigation costs pre-discovery, which seems to be why it cost quite this much.

  • Aug 10th, 2018 @ 12:21pm


    To identify you with a 'unique' numer. Because of their monopoly status, you either have to give them your SSN, or go without. Similarly, Power and Water companies also require you to give up information they shouldn't store longer than necessary, but they do.

    And the government has fed into the idea that you use SSNs as a form of identification.

  • Aug 10th, 2018 @ 12:16pm


    Well, civil justice, not criminal.

  • Aug 10th, 2018 @ 11:46am

    Re: Re:

    Agreed. The statement is inherently intended to be coercive. That it rarely works does not make it less so.

    There is a axiom by Mark Twain: "If one must eat crow, it is best to eat it while it is young and tender, or surely one will eat it when old and tough." Techdirt has said simpler. "First rule of holes: stop digging." The statement can therefore be seen, when actual rights violations are occurring, to be coercive in a positive light. "You know you are doing the wrong thing. "Stop now, and it doesn't need to become a big 'thing'".

    That is useful so rarely and detrimental so often makes it less rational to do so, but emotion is not rational, as you say.

  • Aug 10th, 2018 @ 10:25am

    Re: Re:

    Strike 'public' from 'public exposure'. A more limited exposure can still cause blackmail.

  • Aug 10th, 2018 @ 10:24am


    Blackmail is a very specific form of coercion. That is, utilizing the threat of public exposure of information that will cause some form of harm to the person being threatened to force some act, traditionally a financial transaction.

    While the "I will sue if you do X" is a coercive statement, it is not generally blackmail. The threat is not about the exposure of the act X, this act would generally already be public.

    While it might be seen as blackmail, from a strict interpretation, if the commentary is "you just violated my rights, if you continue to violate my rights I will expose your rights violation in a lawsuit", generally it is not seen as blackmail to express intent to pursue damages if an ongoing crime is continues, as to do so would abridge the ability of the victim of a crime to seek an end to its ongoing nature.

    Also, in this case, it appears he threatened to sue over the already occurred pepper spray, without conditioning his lawsuit on a future arrest. Nor did he demand any other action to prevent the lawsuit, a key factor in blackmail.

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