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  • May 11th, 2020 @ 12:57pm

    Re: undue enforcement

    "anonymous" offers the hypothesis that lower econmic status is leading to less social distancing and that, in consequence, the disparate numbers of enforcement actions by race are not a result of discrimination but just a consequence of disparate numbers of violations. I cannot immediately rule out that possibility but, especially in light of the history of what appears to be discrminatory enforcement actions, I'd want to see a lot more data to be persuaded of that hypothesis. I've certainly seen pcitures in the press of large groups of people who were neither African-American nor Hispanic and who appeared to be violating social distancing protocols in Brooklyn but who do not seem to have been subject to any enforcement action. Why might that be?

  • Feb 14th, 2020 @ 6:34am

    Re: A very tough call

    Anonymous Coward: I do not understand the significance of the first sentence of your post (beginning "The second quotation you cite ... ."). I would like to understand and hope you will clarify.

    I see that, as you correctly state, the quotation from Professor Lessig at the very end of the NYTimes article does not appear in the Medium article. The Medium article is very carefully worded with a nuanced and sophisticated articulation of LL's argument. If some third party had published an article with the NYTimes headline attached to the content in the Medium article, it would be easy to see the fundamental inconsistency between the headline and the article.

    However, that is not the argument raised by LL's defamnation suit. The suit grounds its argument on an inconsistency between the headline of the NYTimes article and the body of the article. I don't know whether I agree that defamation law should include the "clickbait" doctrine--I worry, as I gather MM worries, that defamation law thus adjusted would be weaponized to limit desirable free speech.

    But whatever is the proper balance on that question, LL's specific lawsuit is against the NYTimes based on the actual headline and actual body text. In that specific situation, it is much harder to make LL's argument. In that specific situation, the headline is consistent with at least one quotation from LL in the body of the article (which I'll assume for the moment to be accurate). Now one can argue that the import of the closing quotation is being used out of context in the headline but the closing quotation is on the same side of the paywall as the rest of the article so the argument that there is a fundamental inconsistency between the headline and the article is weakened.

  • Feb 12th, 2020 @ 2:59pm

    A very tough call

    I have enormous respect for both Mike and Professor Lessig. They are both advocating in good faith for plausible positions so I struggle to take sides one way or the other. To try and make up my mind, I went back to the NYTimes article I am struck by the way Professor words his argument differently at two places in the article. At one point, he says:

    That has no relation to what I wrote. Because here’s what I wrote: “When it was discovered, it would do real and substantial pain to the people within the Media Lab who would come to see that they were supported in part by the gift of a pedophile. That pain is real and visceral and substantial.” People who actually have suffered at the hands of pedophiles absolutely have a right to be outraged to know that their institution has been supported by a pedophile.

    The "doubles down" implication of the headline is inconsistent with that statement and, if that was all we had, I would side with Professor Lessig. However, look at the very last sentence of the article, where Professor Lessig is quoted this way:

    All I’m trying to suggest is this: that the suggestion of the Ronan Farrows of the world that somehow there’s something terrible about the anonymity — no! If you’re going to take the money, you damn well better make it anonymous.

    That quotation, if accurate, is consistent with the headline--it is Professor Lessig expressing his position in the present tense. I think the presence of that concluding quotation (assuming it is acurate), persuades me of the merit of Mike's side of the argument.

    But, again, it is a close call. The world--and this debate--is a better place with both these people participating.

  • Jan 13th, 2020 @ 4:09pm

    New Lawsuit Trying to Block AB5

    See details here:

  • Jan 9th, 2020 @ 3:58pm

    I vote for owneship by the person who prssed the "run" button

    I see the reference to AI as a distraction. Here's a simpler example--consider a Jackson Pollack work ( Let's assume Pollock wasn't part of a work-for-hire arrangement. Surely, then, his works were copyrightable and he owned the copyright. Now assume that, instead of manually pouring paint onto canvas, he had employed some sort of mechanical device to tip the paint onto the canvas. Even assume the mechanical device had some randomness built into it so Pollock was no longer 100% controlling the outcome. Does anyone think the resulting art wouldn't be copyrightable or that Pollock wouldn't own the copyright?

  • Dec 24th, 2019 @ 8:50am

    Sole Proprietor

    The article and this comment on the article imply that an unincorprated sole proprietor cannot be treated as an independent business under AB5. I don't understand the logic of this--AB5 includes this text:

    "If a business entity formed as a sole proprietorship, partnership, limited liability company, limited liability partnership, or corporation (“business service provider”) contracts to provide services to another such business (“contracting business”), the determination of employee or independent contractor status of the business services provider shall be governed by Borello, if the contracting business demonstrates that all of the following criteria are satisfied: ..."

    I have omitted all of the criteria that must be satisfied for this to apply (see details at but I don't see where it says that corporate entities are treated differently than unincorporated sole proprietorships.

    If I've gotten thsi wrong (and I am not anemployment law expert), someone please enlighten me.

  • Nov 15th, 2019 @ 2:07pm

    Will the Supremes Understand Copyright?

    Hard to say, and Mike is right to say they might not get it. But I want to do a shout out for a Professor I once had who is now one of them: Justice Breyer. He's written many times on the subject (and had many other commentators disagree with him) but I claim he does "get it." A speech he gave is quoted at, with particular focus on technology/software toward the bottom of page 101. It was a while ago, and his views may well have evolved, but this speech is well worth reading. For amusement, the very next speaker at this event (whose article I will not bother to read) is there on behalf of Elsevier.

  • Oct 12th, 2019 @ 7:45am

    Re: Re: Right to be Forgotten

    I somehow missed that article when it was initially posted but have read it now. Good reading/good analysis as always.

  • Oct 11th, 2019 @ 10:25am

    Re: Re: Right to be Forgotten

    This is the other article to which I referred:

  • Oct 11th, 2019 @ 10:07am

    Right to be Forgotten

    Have just read an article by a European lawyer saying that the EUCJ ruling limiting extra-territorial enforcement isn't as limiting as first appeared. I am not yet sure I understand the details of the analysis. Separately, there is a new, non-appealable, EUCJJ ruling that allows extra-territorial enforcement. Details are here: ove-defamatory-content-worldwide. Truly scary.

  • Aug 23rd, 2019 @ 8:08am

    Re: Makes sense

    I forget the source of the following but it seems on point: "If you can win on the law, argue the law. If that doesn't work, argue the facts. If neither of those work, pound on the table."

  • Aug 14th, 2019 @ 1:16pm

    Correction re Safe Harbor

    Part way through my comment, I said:

    Certainly there is some ambiguous underlying standard that would apply with Section 230--e.g., ....

    I meant to say:

    Certainly there is some ambiguous underlying standard that would apply WITHOUT Section 230--e.g., ... .

  • Aug 14th, 2019 @ 1:09pm

    Safe Harbor

    I agree with almost everything Mike has to say in this well-reasoned article. I just want to pick a very small nit. Mike includes the key wording from Section 230: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” and then observes that Taplin is wrong when he calls it a safe harbor provision. I agree that, as a formal matter, Taplin is wrong and Mike is right--to have a safe harbor, you need to have an ambiguous standard (Wikipedia gives the example "don't drive recklessly") and then a limiting rule that, in some cases, eliminates the ambiguity ("speeds under 25 mph will not be deemed reckless"). In that formal sense, which any lawyer should understand, Section 230 is not a safe harbor. However, this NYT piece is written for a more general audience. Certainly there is some ambiguous underlying standard that would apply with Section 230--e.g., is the material complained of defamatory/obscense/etc.--and certainly Section 230 protects certain platforms from being subject to that ambiguous standard. Does it make much difference if we let Taplin call that a "safe harbor"? The real issue, as eloquently explained by Mike, is whether the defendant in court ought to be just the speaker or ought to include the platform too. I'd put my emphasis on this aspect in debating for a public audience who might not care too much about the formal definition of "safe harbor."

  • May 29th, 2019 @ 3:18pm

    Re: Re: Jurisdiction fight!

    Mr. Burkhardt is exactly right about this--the issue is interpretation of the statute and not about the constitution. Until Congress speaks up, SCOTUS has a good deal of flexibility in interpreting statutory provisions that, arguably, are ambiguous. Once Congress eliminates the ambiguity, SCOTUS has very little flexibility. For comparison, consider when Congress increased the term of copyright (per lobbying by Disney to protect Mickey Mouse) and a case was brought by very sophisticated plaintiffs arguing that was unconstitutional--those plaintiffs lost.

  • May 15th, 2019 @ 9:17am

    Re: Letter re Potential 3rd Party Claims

    In a spirit of transparency, I admit that I almost always represent vendors rather than users. With that admission, let me offer another theory. I haven't looked at Adobe's actual fine print in a long time so this comment isn't limited to Adobe. Odds are, the license grant is perpetual, i.e., it continues indefinitely unless terminated because of breach by the licensee. These days, software support almost always costs extra so perhaps there is language that says we'll support the current version and one or two prior versions--seems to me fair enough for a vendor to say, if I fixed the problem you're complaining about in a new version, you'll have to update to that version to get the fix.

    The issue of infringement is typically a separate matter. The vendor often (not sure exact statistics) says it will indemnify for infringement unless the infringement is cured by switching to a new version to which the user could have, but failed, to to update. As a vendor, if one comes across potential infringement, it is VERY awkward to have to say to users "Please update because your current version infringes [insert name of i.p. owner]'s rights"--it's like wearing a "Kick Me" sign. Referring, as Adobe does, to unidentified third parties at the time an update becomes available is a not unreasonable approach.

  • May 9th, 2019 @ 4:49am

    Re: Re: Who Will "Moderate"?

    I mainly agree with this comment by Scary Devil Monastery. I would only add that it is challenging to predict how the Microsoft initiative will evolve. If it makes Microsoft money, Microsoft's competitors will notice and join in the fun so there will be alternative content moderating bots from AWS, Google, etc. and they might all be different in what they filter. Also, seems to me that at least some of these bot systems will offer configurable/trainable bots (perhaps neural network style) as not every bot user will want the same filtering effect. Might this somewhat mitigate the adverse consequences? Perhaps not--perhaps, as Scary Devil Monastery warns, it will just be one more path to a "chilling self-censorship effect."

  • May 7th, 2019 @ 4:00pm

    Who Will "Moderate"?

    One of the arguments often offered on this website has been that rules of this kind will tend to lock in the positions of the larger market participants (Google, Facebook, etc.) because only those companies will have the resources to attempt content moderation in a remotely sensible way. Per this line of argument (with which I am sympathetic) even the big guys will get it wrong a lot of the time and the little guys will be unable to allow user content without assuming massive risk. However, I just came across this article ( suggesting that Microsoft is starting to offer a service that allows subscribers to rely on Microsoft services to decide what content is troublesome. The good news is that this somewhat levels the playing field between the big guys and the little guys. The bad news is that, instead of having to deal with government entities who can be sued for violating the First Amendment, we now have to deal with private entities not bound by the First Amendment.

    I don't know which of these bad aletrnatives is the lesser evil.

  • Apr 12th, 2019 @ 6:43am

    Re: Re: unjust law

    The concept of conspiracy as a crime is not so new. For example, here it is in a Massachusetts case in 1922 (Commonwealth v. Dyer): That case cites back to numerous earlier cases. I do not have a citation to offer but I would wager one could find discussions of the crime of conspiracy in English common law dating back at least to the 1800s. The Dyer case quotes an earlier case confirming a point made by Graham J above: "It is not always essential that the acts ... should constitute a criminal offence, for which, without the element of conspiracy, one alone could be indicted ... . "

  • Feb 23rd, 2019 @ 7:44am

    Another possibility

    The folks debating above seem to be considering these possibilities: (a) the work doesn't have an owner (Mr. Masnick's preference); (b) it is owned by the employer under some court-created doctrine analogous to work-for-hire; or (c) it is owned by the person who issued the "command" that started computer execution. Let me offer one more possibility. The Copyright Act allows for joint ownership: "A joint work is a work prepared by two or more individuals, with the intention that their separate contributions be merged into a single work." No guarantee that this argument would prevail but perhaps worth arguing that the person(s) who programmed the AI and the person(s) who used it have both made contributions with the intent that there contributions be combined into a joint work. The economic consequences of this conclusion (that all joint authors are entitled to a share of the profits) would certainly be a mess to administer but that's true for lots of other aspects of copyright law.

  • Oct 25th, 2018 @ 8:57am

    Re: New Work

    Gary's observation is 100% correct: copyright in the derivative work that is the translation belongs to the author of that derivative work. He is also correct that both the original translation and the new "official release" derived from the translation are both infringing. I often use this scenario as a teaching example with clients and young lawyers because the consequence of the mutual infringement is that each side theoretically has the power to enjoin the other side from distributing the infringing work. That consequence--mutually assured destruction--ought, in a rational world, to lead to a negotiated outcome, e.g., in which the first translator gets something: credit, money, etc.

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