James Burkhardt 's Techdirt Comments

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  • On the post: Shitty Man Shows How Shitty Men Can Shit On Free Speech By Suing Over The Shitty Media Men List

    James Burkhardt ( profile ), 22 Oct, 2018 @ 12:19pm

    Re: Re:

    Proving an accusation of rape is an understood process, involving sussing out stories and verifiable movements and physical evidence. Proving an accusation of an accusation of rape is not.

    How exactly do I prove that while I worked at a company there were rumors accusing a higher ranking employee of rape? Honestly, it would be the worst thing to investigate. Those working there have every reason to deny or dissemble or deflect, and those not working can have credibility undermined. In the end, I can see no point at which a judge would agree that you have definitively proven both that such accusations never occurred publicly or privately and nothing was ever said which could reasonably been interpreted as an accusation of rape which is the actual legal standard for defamation. Which is why this lawsuit is shitty.

  • On the post: Shitty Man Shows How Shitty Men Can Shit On Free Speech By Suing Over The Shitty Media Men List

    James Burkhardt ( profile ), 22 Oct, 2018 @ 11:59am

    Re:

    The issue is it is not defamatory.

    The false accusation of rape might be. Very well could be.

    This is not an accusation of rape. It is the accusation that he has been accused of rape, potentially privately.

    Now this is where the serious issues involved with false accusations of rape can come up. But as has been noted in RTBF posts, the fact that they were accused is still truthful, even if the accusation was false.

    People on this list are moneyed public figures, with access to the public and press and experts necessary to defend themselves. Invite them to make their claims public or invite an investigation into their claims. A good PR person should be able to downplay anonymous claims on a random internet list.

  • On the post: Shitty Man Shows How Shitty Men Can Shit On Free Speech By Suing Over The Shitty Media Men List

    James Burkhardt ( profile ), 22 Oct, 2018 @ 11:48am

    Re:

    But instead you jump straight to #BelieveHer?

    We don't need to. Because the accusation of rape isn't being sued over. The lawsuit is about accusations of accusations of rape.

    We don't need to believe the rape happened to believe the accusations happened. You missed most of the article, probably didn't even read most of it, in your rush to decry #believeher. And you failed to note that no one sued claimed to be raped in the statements sued over, but rather claimed there were accusations of rape being told in the workplace. And that can be true even if there was no rape.

    We can discuss your real and serious concerns about false allegations and the damage they can do, and the accusations about accusations being sued over are a clear potential problem of false accusations, but perhaps you need to put away your shotgun of righteous indignation first.

    This does not raise to the level of defamation. If you think accusing someone of being accused of rape is the basis for defamation suits, you don't understand the first amendment at all.

  • On the post: Shitty Man Shows How Shitty Men Can Shit On Free Speech By Suing Over The Shitty Media Men List

    James Burkhardt ( profile ), 22 Oct, 2018 @ 11:35am

    Re: Re:

    The accusation being sued over is not that he committed rape though - it is that he was accused of Rape and sexual assault.

    He is a shitty man because he claims stating that he has been accused of rape is defamatory - despite the high likelihood that at some point statements which could be taken as accusations of rape and sexual assault occurred, and he did not know about them.

    This lawsuit will not survive because that truth can not be proven defamatory, and under NY law they will not unmask the defendants until that happens. He is shitty because his stupid PR lawsuit is designed to silence speech, not actually address secondhand vague accusations of rape.

  • On the post: Another Report Shows That FOSTA Increased (Not Decreased) Sex Trafficking; Where Is The Outrage?

    James Burkhardt ( profile ), 22 Oct, 2018 @ 10:57am

    Re:

    Outrage that a situation was made worse does not preclude outrage about the situation originally. Failure to blog about the issues of the sex work trade prior to a law passing which made the situation worse does not preclude the ability to complain that a law would make the situation worse, nor that a law has made the situation worse.

    And in fact, Mike has discussed relevant issues that plague the internet sex worker, if not directly noting the connection. Difficulties with payment processing and having a bank account when your income comes from even legal sex work like consensual sales of images and videos due to draconian policies and skittish bankers have been discussed numerous times.

  • On the post: Apple Demands Retraction Of Bloomberg's Big 'Chip Infiltration' Story; Bloomberg Has Some Explaining To Do

    James Burkhardt ( profile ), 22 Oct, 2018 @ 09:37am

    Re: Re: Re: what magical palantir

    The issue is enforceability.

    They can demand it, but enforcing the demand is another thing entirely. If Apple spoke out, how would the government shut it down? They probably couldn't get the courts to enforce the demand. The accepted legal distinction is they can instruct you not to speak, or to not express details, but they can not force you to lie. They can't even force you to express a government position with your own voice (IE, if forced professionally to say things you can express that this information is coming from the government rather than your own opinion or is your choice to express the information.)

    So without launching an all out campaign of personal blackmail and disappearances, given the number of people who would end up knowing, they can't enforce that demand.

    And given that Bloomberg should have evidence if this was actually true, such a campaign would be rapidly fruitless.

  • On the post: Streaming Exclusives Will Drive Users Back To Piracy And The Industry Is Largely Oblivious

    James Burkhardt ( profile ), 19 Oct, 2018 @ 03:40pm

    Re: Re: Re: Re: Re: I forsee...

    Empirical Evidence, but you haven't provided any evidence to suggest you have a broad sample. My empirical evidence completely contradicts your experience - If I go into someone's house and the tv is on - someone is watching it.

  • On the post: Appeals Court Says Of Course Georgia's Laws (Including Annotations) Are Not Protected By Copyright And Free To Share

    James Burkhardt ( profile ), 19 Oct, 2018 @ 03:10pm

    Re:

    The rationale is that the annotations are based on legal rulings and similar, and the annotations are officially sanctioned by the legislature in a process much like passing the law themselves. Its a big part of their analysis.

    So LexisNexis does not hold the legislative power. It is the actions of the legislature that make them law-like.

  • On the post: Appeals Court Says Of Course Georgia's Laws (Including Annotations) Are Not Protected By Copyright And Free To Share

    James Burkhardt ( profile ), 19 Oct, 2018 @ 03:07pm

    Re: Re: look out NFPAyou're next

    Actually, in a full reading, whatever guidelines they laid down, it becomes more clear the core issue seemed to be that the annotations had the color of law if not the force of law, and therefore needed to be publicly accessible.

    While it spends a lot of time discussing the manner in which the annotations are incorporated into law, I think the issue is so complex because they were not officially seen as law.

    I think the incorporation by reference situation actually is much simpler, because the legislative intent, that the code is the law, is much clearer, and would simplify the analysis.

  • On the post: Appeals Court Says Of Course Georgia's Laws (Including Annotations) Are Not Protected By Copyright And Free To Share

    James Burkhardt ( profile ), 19 Oct, 2018 @ 02:28pm

    Re: Re: look out NFPAyou're next

    There are certainly several distinctions made in the details of this ruling which separate the annotated law from an incorporation by reference. I think the core principles stated throughout are at odds with entire sections of the law being barred from public access.

    How it would be ruled is a bit of a toss up, however.

  • On the post: Streaming Exclusives Will Drive Users Back To Piracy And The Industry Is Largely Oblivious

    James Burkhardt ( profile ), 19 Oct, 2018 @ 12:26pm

    Re: Re: Re: I forsee...

    So, where do you get the data on this, that the primary tv "viewer" is one that just leaves the TV on all day but pays attention when the show they were waiting for comes on?

    As far as I understood it, the current majority traditional TV viewer records the show they want on a DVR, and then watches it at a random time in the future, which is why accounting for DVRs in neilson ratings was such a concern.

  • On the post: Streaming Exclusives Will Drive Users Back To Piracy And The Industry Is Largely Oblivious

    James Burkhardt ( profile ), 19 Oct, 2018 @ 07:51am

    Re: I forsee...

    My household. Every month. Both of us average more than 2 show episodes a day. (100 epidodes/2 people = 50 episodes each/30 = 1.67 episodes per day)

    She is a security guard relief officer - most of her day is spent twiddling her thumbs. She will easily watch 4-6 hours of streamed TV in a day.

    Ive got a Netflix queue so long I don't think I will ever see the end of it. I try to watch at least 2 hours of content a day while working on other things.

    Once you consider that, in the streaming era, multiple people can be watching multiple things it gets really easy.

    Once you hit a 3 or four person household, if you have Content watchers it becomes easy.

  • On the post: Streaming Exclusives Will Drive Users Back To Piracy And The Industry Is Largely Oblivious

    James Burkhardt ( profile ), 19 Oct, 2018 @ 07:42am

    Re:

    Reminds me of the CW Arrowverse Shows - I can watch them right now as they air on the CW App, For Free, with ads.

    Or I can be paitent and wait until next year and get them on netflix all at once.

    Which I choose has often depends on the show (Flash right now, Supergirl I want to see now, Legends is great but can wait til netflix, Arrow can wait til never)

  • On the post: A Decade After Trying To Block Open Source Patent Pool From Buying Its Patents, Microsoft Joins The Pool Entirely

    James Burkhardt ( profile ), 18 Oct, 2018 @ 02:57pm

    Re: Re: Microsoft isn't a guy, it's a corporation

    Except I don't think anyone is. I think people see this as a sign that management is coming around to the idea that prior strategies were not working, and are looking at new philosophical approaches.

  • On the post: Supreme Court To Hear Case That Could Possibly (But Not Really) Impact Social Media Content Moderation

    James Burkhardt ( profile ), 18 Oct, 2018 @ 01:55pm

    Re: Re: Re:

    NO, the lawsuit is against Manhattan Community Access Corp, the 'private' corporation who administers Manhattan Neighborhood Network a public access channel

    Because the public access channel is a traditional public forum (according to the appealate court), the private corporation who owns/administers the channel functions as a state actor. Its not "anyone or platform that links to" Manhattan Neighborhood Network. I read the commentary we have seen to limit state actor to the Administrators of the Manhattan Neighborhood Network, the Manhattan Community Access Corp, which is probably a joint venture between the cable franchisees of NYC.

  • On the post: 'See Something Say Something' Sends Philly Counter-Terrorism Unit After A Local Journalist Over A Harmless Facebook Post

    James Burkhardt ( profile ), 18 Oct, 2018 @ 09:29am

    Re: Re:

    Actually, it was in support of a call for a boycott, which combined with the rest of the statement suggests that the reckoning is the result of the boycott. Because the actual context was far less ambiguous then suggested

  • On the post: 'See Something Say Something' Sends Philly Counter-Terrorism Unit After A Local Journalist Over A Harmless Facebook Post

    James Burkhardt ( profile ), 17 Oct, 2018 @ 03:30pm

    Re: Re: A great day of reckoning is coming.

    Except, in other contexts those words are predictions of non-violent outcomes. In a legal conflict, that can be claim that the court will hold them accountable. In politics, its basically saying 'elections are coming'.

    When in response to a call for a boycott you reply "I say, 'F– em,' they will be shown better than told. I will just leave it at that. A great reckoning is coming." You are supporting the call for the boycott and are predicting failure of the business as the owners are shown that their actions were bad for business, not violence. Its not a vary ominous statement in context.

  • On the post: 'See Something Say Something' Sends Philly Counter-Terrorism Unit After A Local Journalist Over A Harmless Facebook Post

    James Burkhardt ( profile ), 17 Oct, 2018 @ 03:25pm

    Re: Re:

    The context, that his words were in responce to a call for a boycott, seems to be lost on both you and the person who 'said something'. Because in context, it doesn't look bad. But when all you have is an email with a name and a threat, it very much does.

  • On the post: 'See Something Say Something' Sends Philly Counter-Terrorism Unit After A Local Journalist Over A Harmless Facebook Post

    James Burkhardt ( profile ), 17 Oct, 2018 @ 03:23pm

    Re:

    A great reckoning is coming can mean many things. Said to a political opponent, it can reasonable be read as a belief that the opponents political stances/statements in office will come back to bite them. In a legal dispute, it reads as a prediction of judgement in court. In a church said by a pastor, it sounds like god is going to call down a meteor and 9 people lead by a guy with a six foot long broad bladed sword and spiky hair will need to intervene to save us all. Context.

    In the context of a Facebook post by a journalist in support of a rant about the owners of a nightclub to its patrons calling for a boycott? I don't read a violent context. I read a boycott context. He is predicting the club going out of business for the actions of its owner. If he had suggested more specific times or days to not attend I would read violence, but contextually, it was agreeing to a Boycott, not violence.

    That said, I think the issue was the person who reported it removed the context of the commentary by emailing it to the police. I dont think he provided a link, he just emailed the comment without the context of the post he was responding to.

  • On the post: Facebook's Latest Fake News 'Purge' Terminates Several Accounts Known For Their Criticism Of Law Enforcement

    James Burkhardt ( profile ), 16 Oct, 2018 @ 11:21am

    Re:

    >I had an idea for such a portal myself but abandoned it when I realized I could not compete at the search engines who had every advantage with Section 230 and the DMCA.
    Except you had Section 230 and the DMCA. Everyone did. Everyone does. That is kinda the point. Im interested to know what google has that SEC 230 protects that you couldn't have as well.
    >Why is gossip now immunized against defamation? "I heard it on the internet" should not be sufficient to defeat a defamation lawsuit, and Section 230 should only be used as a shield,not a sword.
    Well, its always been, largely. SEC 230 has nothing to do with it. Defemation standards have nothing to do with SEC 230, SEC 230 only defines who holds the liability for defemation, not what constitutes Defemation. The idea, which I don't entirely agree with, that people take statements on the internet less seriously, and therefore are more likely opinions and hyperbole than facts does not come from SEC 230 but from the courts. Since you seem to be conflating defamation standards with SEC 230 liability standards, I believe you dont quite understand the issues you are discussing.

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