James Burkhardt 's Techdirt Comments

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  • On the post: US Government Rings Up Another Whistleblower On Espionage Charges

    James Burkhardt ( profile ), 13 May, 2019 @ 09:12am

    Re: Re: Re: Re:

    So, interestingly, that agreement does not change the requirements for conviction. The intent requirements, that you are adhering to the enemies of the US, do not go away with that requirement as you express it. Moreover, if someone was charged with treason, the punishment is death. Explicitly. That is the only punishment. We don't see that in these cases. They are actually being charged with espionage. It is a law that removes any capacity for affirmative defenses so they can railroad you into conviction.

  • On the post: US Government Rings Up Another Whistleblower On Espionage Charges

    James Burkhardt ( profile ), 13 May, 2019 @ 08:36am

    Re: Re: Re: Re:

    Disclosure of Classified material is not, by the constitutional definition, sufficient for the charge of Treason. For instance, a non-citizen (someone who does not owe allegiance to the US) could disclose classified material and can not, by definition, be charged with treason. Moreover, while disclosure of classified material might fit the definition of treason, there are a number of other requirements and restrictions within the consitution and the law established by congress:

    Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason... Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
    Disclosure of classified material could be considered adhering to the enemies of the US, however proving that requires a showing of intent, and whom you disclose the information to can significantly change that analysis. Which is why we have the crime of espionage, which Courts have barred from allowing an intent analysis. Moreover, International law (these were extraterritorial murders, after all) and the UCMJ explicitly do not allow "I was just following orders" as a defense against the killing of non-combatants and that such orders should be disobeyed. Under this principle, disobeying the commands of higher ups and exposing the continued killing of non-combatants would appear to be the right action to take. Courts do seem to have disagreed, but that ruling was not in place when the events in question occurred.

  • On the post: Higbee Tries To Shake Down Forum For Deep Linked Photograph

    James Burkhardt ( profile ), 10 May, 2019 @ 12:36pm

    Re:

    That some are copyright trolls has nothing to do with the legitimate rightsholders whose work has been stolen by pirates.
    And that has nothing to do with this article, which does not call for any changes or repeal of copyright, merely highlights a Troll who is acting dishonestly. Of course, as you know your statement involves this article follow-on logic to the article itself, the connection to questions about how the specifics of the current copyright laws promote trolling for easy payouts and if that is acceptable. Which discounts your entire position. Your statement, that the side effects of the current copyright law's enforcement mechanisms have nothing to do with the enforcement mechanisms in the current copyright law, is inane on its face.

  • On the post: It's One Thing For Trolls And Grandstanding Politicians To Get CDA 230 Wrong, But The Press Shouldn't Help Them

    James Burkhardt ( profile ), 08 May, 2019 @ 12:36pm

    Re: I object to "Encourage"

    Could you explain further? As has been noted many times, including in this article, Sec 230 was written in response to a legal ruling that made content hosts liable for the content users post based on the greater level of moderation prodigy performed compared to Compuserve. This leads to the conclusion that the way to avoid content liability is to not moderate 230 has 2 sides, the first provides that you can only hold the user accountable for the user's actions, not the content provider. The second part encourages moderation by clearly stating that moderation does not trigger liability. Please explain how that encouragement serves to discourage moderation that is not also discouraged by the legal president in Prodigy.

  • On the post: It's One Thing For Trolls And Grandstanding Politicians To Get CDA 230 Wrong, But The Press Shouldn't Help Them

    James Burkhardt ( profile ), 08 May, 2019 @ 09:49am

    Re:

    While I would agree, I am certain I can find a different article from WaPo claiming how Facebook needs to do more to address hate speech or terrorist content or fake news or whatever hot button content we are blaming social media for this week, which somewhat undermines that idea.

  • On the post: Man Wins Legal Battle Over Traffic Ticket By Convincing Court A Hash Brown Is Not A Phone

    James Burkhardt ( profile ), 02 May, 2019 @ 02:23pm

    Re: I'm surprised...

    When Cailfornia implemented its headset law and than its total ban on touching your phone, I complained about this vary thing. If the issue is distracted driving, we already had that law. However, police seem unable to get distracted driving to stick for talking on a phone. In fact the reason CA has 2 anti cell phone laws is the original was too narrowly written and so the smartphone had functions you could legally use while driving, and instead of employing distracted driving police sought a new law. I would be curious why that is. Connecticut must, similarly to CA, have an anti-cell-phone law, and the officer insisted on writing the ticket under the cell phone law, as opposed to a general distracted driving law.

  • On the post: Canadian Billionaire Sues Twitter For Nasty Things Twitter Users Said About Him

    James Burkhardt ( profile ), 02 May, 2019 @ 02:34pm

    Taking action against the dozens of individual users, Mr. [Frank] Kozak said, would require “endless litigation,” and not address future defamatory tweets. As such, he said, Mr. Giustra decided to take action against Twitter itself.

    ...How does sueing twitter address future defamitory tweets? Defamation is rarely facially apparent, and even if it were is Giustra seeking a remedy that twitter manually review every tweet in existence to ensure it does not make a potentially defamitory refrence to Mr Giustra?

    His lawyer is talking about proactive filters of any potentially defamitory tweet. That will certainly censor significant legal speech. May as well declare the internet illegal.

  • On the post: Both Sides Want The Supreme Court To Review Decision Denying Copyright In Georgia's Law. How About You?

    James Burkhardt ( profile ), 01 May, 2019 @ 09:07am

    Re: Re: Re: Re:

    Of course, he also claims he would have been rich, until pirates stole all his product..

  • On the post: Content Moderation At Scale Is Impossible: Some Republican Politicians Are Indistinguishable From Neo Nazis

    James Burkhardt ( profile ), 29 Apr, 2019 @ 11:52am

    Re:

    Oh, you are that 'primary point needs to be in first paragraph' anon troll. Mike does indeed cite that study when he discusses the study. He then connects it to questions about why twitter can't use the same filters for white supremacist content - and then answers those questions by citing a tweet thread where they note that some of the collateral damage would be republican politicians. If Mike had cited the twitter thread first, I am certain there would be another troll claiming how he made a point before providing evidence. The article is structured like most Techdirt articles, background info and evidence which is then used to establish a conclusion, which the Title of the article is drawn from. Just because he cited the ISIS -filter article first doesn't mean the Techdirt article is about the ISIS-filter article. Its not. The ISIS paper is used to introduce the reader to the filter and its limitations. Then when a twitter thread about implementing this filter for white supremacy is introduced, the reader can potentially see and understand the conclusions before they are spelled out. Now we are following along with the writer, rather than being pulled along as he establishes his evidence is reverse order.

  • On the post: Shoddy Software Is Eating The World, And People Are Dying As A Result

    James Burkhardt ( profile ), 26 Apr, 2019 @ 09:39am

    Video Games are a great example of this phenomina

    All you have to see to understand this debacle is major AAA video game releases of the last few years. Video Games have been pushed out the doors incomplete more often due to the ability to issue day one patches to fix the issues, or even with the expectation the issues can be fixed down the line. Anthem being a prime example, its a buggy mess with threadbare content. The developers planned to fix it all in post.

    For all the bugs you can find in older games when patches were not an option, AAA releases were more willing to delay release than put out a buggy mess.

  • On the post: How Landmark Technology's Terrible Patent Has Survived

    James Burkhardt ( profile ), 24 Apr, 2019 @ 02:51pm

    Re: Re:

    I should add, the issue here is that the patent is largely making abstract claims - the core issue with any software patent.

  • On the post: How Landmark Technology's Terrible Patent Has Survived

    James Burkhardt ( profile ), 24 Apr, 2019 @ 02:50pm

    Re:

    The goal of Patents is to encourage the public release of innovations by inventors. The issue with your comments are that, broadly speaking, inventors are not largely effective at marketing or sales. The capacity for an inventor to licence their patents to a broad audience is beneficial. The willingness of the VHS patent holders to licence the core tech to a variety of manufacturers lead to a highly competitive and innovative market in VHS devices, which played a part in the success of VHS over Betamax.

  • On the post: How Landmark Technology's Terrible Patent Has Survived

    James Burkhardt ( profile ), 24 Apr, 2019 @ 02:44pm

    Re: Re:

    A good chunk of the article was dedicated to how - by being unscrupulous the owner is able to claim a continuation, that he innovated on the original patent. Because the patent system is screwed up, they can't check developments in the last 25 years as 'prior art' when examining the new patent.

  • On the post: The DOJ Isn't Buying T-Mobile's Nonsensical Merger Benefit Claims

    James Burkhardt ( profile ), 19 Apr, 2019 @ 01:56pm

    Re: Re: This isn't rocket science!

    moreover, Tmobile and sprint individually have MOST of the footprint that AT&T or Verizon have. Combined I am sure the only thing they don't have is the same rural coverage. There isn't a lot of new market to work with.

  • On the post: Supreme Court Again Ducks A Chance To Clarify First Amendment Protections

    James Burkhardt ( profile ), 19 Apr, 2019 @ 08:16am

    Re:

    From the link:

    The mens rea requirement is premised upon the idea that one must possess a guilty state of mind and be aware of his or her misconduct; however, a defendant need not know that their conduct is illegal to be guilty of a crime. Rather, the defendant must be conscious of the “facts that make his conduct fit the definition of the offense.”
    So while true that he did not need to know the threats were illegal in the cited case, the correct standard was that the defendant needed to intend his statements in a way they constituted "genuine threats". It is true that this is somewhat misstated in the article. I applaud you for highlighting the way the article misstates this, but do not applaud your combative conclusions.
    "Correct standard" according to whom? You? Since you don't seem to know what mens rea is (tip: it isn't "Defendant knew what he was doing was illegal"--as the very definition you linked to shows), I'm not inclined to accept you as an authority on the subject.
    if we read the full statement:
    The Supreme Court said the trial court adhered to the wrong negligence standard -- one that said Elonis should have known his posts were threatening if any "reasonable person" would find them threatening. The correct standard to use was mens rea, meaning the government needed to prove Elonis knew his posts were illegal (i.e., that they were "genuine threats") when he posted them.
    It is clear the authority being claimed is not Tim's, but the SCOTUS's decision on the matter. The supreme court, in the case cited, found the correct standard was Mens Rea. Your choice to strip that context either highlights a massive failure in reading comprehension, or bad faith arguementation. In either case, I am not inclined to accept you as an authority in this statement:
    In the current case, sounds like an entirely appropriate result. And if it's characteristic of "rap music" (sic) to threaten death to specific individuals by name, the sooner it goes away the better.
    Your argument abandons the genuine threat requirement and the mens rea standard for criminality. Rap music is commonly filled with bluster of the type you might find in people talking with their friends. Shitting on a cop who you felt did wrong is in fact a common thing you might do. You might even bullshit about killing or harming that cop. But until it is a genuine threat, it is legal. Much as Trump throwing lies around on twitter isn't defamation because its trump and its twitter, a rap musician expressing his negative emotions via violent imagery isn't a threat, because someone familiar with rap music is aware that rap musicians use violent imagery to express themselves without then following through.

  • On the post: Peachtree City Wants To Use Taxpayer Money To Sue Critics Of City Government

    James Burkhardt ( profile ), 18 Apr, 2019 @ 03:54pm

    Re: Re:

    Im not sure where da libs are a player in this article, or the strangeness of peachtree city, georgia discussed by K'Tetch. The county is conservative, and no particular political parties or ideologies are mentioned by Techdirt or K'Tetch,.

  • On the post: New Paper: Why Section 230 Is Better Than The First Amendment

    James Burkhardt ( profile ), 18 Apr, 2019 @ 12:00pm

    Re: Re: Why did you take 1/2 step and not the beginning?

    230 does not cover copyright. It explicitly does not cover copyright.

  • On the post: New Paper: Why Section 230 Is Better Than The First Amendment

    James Burkhardt ( profile ), 18 Apr, 2019 @ 11:59am

    Re: Why did you take 1/2 step and not the beginning?

    DMCA does not relate to SEC 230, as the DMCA only applies to copyright, and SEC 230 does not apply to copyright. Your poorly formatted rant seems to have some solid logic as it relates to copyright, but is completely inapplicable to the SEC 230 discussion. No correction is necessary.

  • On the post: New Paper: Why Section 230 Is Better Than The First Amendment

    James Burkhardt ( profile ), 18 Apr, 2019 @ 11:28am

    Re:

    I assume you mean google. By which means should we determine what material in 10 million search results should be at the top of the list? Or do you propose some other magical way to display search results?

  • On the post: Wherein The Copia Institute Updates The Copyright Office On The First Amendment Problems With The DMCA

    James Burkhardt ( profile ), 16 Apr, 2019 @ 01:33pm

    Re: Re: Re: Re:

    Even assuming that I accept that the extrajudicial process is neccisary and should not be completely thrown out, the incentives are skewed in favor of those who issue 512(c) notices and without a strong 512(f) penalty, it is generally harmful to platforms of any significant size to not favor those who issued the notice. That is why the counter notice provision does not work 'fine' for those who aren't pirates. But again, this article spends a significant time on 512(a) notices, which have no counter notice provision and no recourse. Recent court cases, breaking with past precedent, have chosen to assert that removing persons from the internet over accusations is required by the DMCA, even when there is a factual basis to believe the accusations are without merit (and even when the ISP is correct in its belief that those accusations are false). So the DMCA requires removal of persons from the internet on the basis of patently false allegations. Please explain how non-existent counter notices resolve that issue.

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