Trump and his people have a tendency to distort the meaning of the word "emergency" to invoke legal provisions that seem (IMHO) completely inappropriate for the uses to which they are being put. When challenged in court, his people are often arguing that the courts have no ability to review Trump's classification of something as an "emergency." That legal argument is still playing out and, in most cases, has not reached a final SCOTUS decision. The glimmer of sunshine I offer is that if the courts decide they can review these Trumpian classifications, that may restrain his tactics. And if the courts decide in the other direction, it will enable some future President to classify the lingering effects of Salt Typhoon as an emergency and thereby enable at least some remediation.
A key point in Cathy's article is that the statute does not require that an intermediate (e.g., an ISP) lose Section 230 immunity because of multiple allegations of infringement. That is purely a judicial invention that judges could change without the need for legislation. That is an excellent point (with which I concur).
I did not sya "if it is an off-the-shelf item, the contract lets the provider retain their proprietary and secret info, and if the item is being made to government specs, it’s the government that gets the rights." In all cases, it is a matter of negotiation. I assume (but do not know) that if the government is spending a few billion dollars on a new military toy, then the government will get very extensive rights. However, that shouldn't be the default in all cases and the technical data clause gives the vendor the possibility of negotiating something more favorable with off-the-shelf items. My point is that the vendor to the government can, but doesn't always, win this fight whereas Apple as the vendor to the consumer always wins (absent a right-to-repair law).
I've never dealt with a contract involving munitions or armaments nut, I'd wager that the government procurement officials negotiating those contracts are very sensitive to what the military may need. They can and do include all sorts of vendor obligations penalties for non-performance that go far beyond what might be found in a generic right-to-repair law.
For better or worse, I have negotiated a fair number of contracts on behalf of companies selling goods or services to DoD. Those contracts are governed by a lengthy and complex set of rules: the Defense Federal Acquisition Rules. One of the many subjects addressed by the DFARS is who owns the data developed or provided by the vendor to the government. In some deals, it will be the government but in others--e.g., where the vendor is providing an off-the-shelf product, it will be the vendor and the vendor will be entitled to retain the trade secret rights it might have in a routine commercial deal. Anyone who wants to know more about this aspect of the DFARs can start by reaing this: https://www.acquisition.gov/dfars/252.227-7013-rights-technical-data%E2%80%94other-commercial-products-and-commercial-services. I recite all this as part of making the point that, whereas the consumer who wants to buy an iPhone has miniscule negotiating power vs. Apple, which is a good justification for right-to-repair laws, the power dynamic is usually reversed for the small-to-medium sized commercial vendor trying to sell something to DoD and the policy arguments for and against right-to-repair are very different.
As we all know, anecdotal evidence isn't all that persuasive so take this with a grain (or gallon) of salt. I'm on my 3rd generation of Fitbit watches. They work for me (e.g., resting heart rate down) and have never broken. Had to call tech support once or twice in the last 5 years but they answered the phone and were helpful. Phone app plus watch are all I use so cannot comment on criticisms outside of those.
Haven't looked again today but, yesterday, I spent a few minutes looking at the comments from NYT readers on the Murphy OpEd. I don't think I saw a single one that understood the issue or commented intelligently. Sadly, they were almost all some version of "save the kinds" and/or "Big Tech is evil."
I may be old enough to know a trivia fact unknown to many TechDirt readers. Once upon a time, when computers were first able to simulate fax machines, some of the European countries required vendors to register their systems before they could be allowed to send computer-generated faxes to the corresponding country. One of them--I think it was France--had a requirement that if the computer dialed what it thought was a fax number but a human being answered the phone, that number had to be stored so that the system could remember never to call it again.
During that same era, another country--might have been Switzerland--required that the sending machine "listen" for a special tone that indicated an emergency and then immediately disconnect. That would allow the authorities to send a notification warning the recipients to head for their bomb shelters.
I like your characterization of the argument. The non-compete does allow the employer to protect some i.p. more cheaply than via simple enforcement of a typical employer-employee NDA. An employer could try using different wording in an NDA to make it easier to detect violations. Then we could debate about whether encouraging employers to get creative with those extra NDA provisions (e.g., liquidated damages, expedited discovery mechanisms) was a good policy choice.
I think I'll save that debate for another day.
To all those commented on my post, some observations:
1) I didn't say I always thought allowing unrestricted non-competes was a good idea. Indeed I continue to acknowledge the weight of the argument for disallowing them in many instances. I just wanted to make the point that it';s not a purely binary choice and that there are competing interests worth considering.
2) The FTC rule would allow non-competes in limited instances. Did they draw the line (specific parameters re salary and executive position) exactly right? I don't know but I think it's worthy of debate.
Mike says this: "The FTC ruling does not outlaw NDAs or trade secret laws. Those are what protect “proprietary formulas.” So, the concern that Mr. Ryan is talking about here is wholly unrelated to the rule. ... They can still use NDAs (and IP laws) to protect their 'IP.' That’s got nothing to do with non-competes."
I beg to differ. When an engineer who is privy to a company's trade secrets moves to a competitor, it is certainly possible that she might violate her NDA with her prior employer but her prior employer is going to have a hard time figuring out whether and when that has happened. Sure, the prior employer can sue and try to find out via discovery and depositions but that's an expensive and time consuming process. A time-limited non-compete (1 year for example) could be a more efficient way to protect the prior employer's legitimate interest. I acknowledge the weight of Mike's arguments about innovation etc. but I disagree with the claim that non-competes have nothing to do with IP/trade secrets.
Apologies in advance for cluttering this comment stream but wanted to call people's attention to an article in today's NYTimes about a lawsuit involving Kim Kardashian, furniture designs, and various silly claims of trademark and copyright infringement. Looking forward to reading Mike's (hopefully) forthcoming takedown.
I agree, 100%, with the authors and the consensus of those commenting that a website is not a shopping mall and that the moderation choices of the website owner are entitled to 1st Amendment protection. I'd like to speculate about ways to mitigate the harm if SCOTUS makes a contrary decision.
Surely a website could attach a comment to the objectionable post (objectionable in the view of the website moderation rules) saying "We would not have allowed this post but for the recent horrid SCOTUS decision." Perhaps they could go further and partially hide the objectionable post in the same way that Techdirt hides comments "flagged by the community" behind a clickable caption. I would appreciate hearing the views of the Techdirt community as to whether, and how much, this type of approach would help.
This is from CBS News: "R. Anthony Rupp III, a civil rights attorney, said he did not initially intend to sue over the incident, but changed his mind after learning the same officers were involved two months later in the arrest of an unarmed man who died of an asthma attack after struggling while being handcuffed."
... the specific statute that required use of lights after dark was named the "New York Vehicle and Traffic Law"? Wondering about that, I Googled the name and figured out what Mr. Rupp does for a living:
https://rupppfalzgraf.com/staff/tony-rupp-founding-partner/
Sadly, I have long since thrown away the textbook that was used in the law school class I took on copyright 36 years ago. But I do recall a case in that book, perhaps dated from around 1830 or so, in which Lawyer #1 sued Lawyer #2 alleging that Lawyer #2's template for an insurance policy infringed Lawyer #1's template. Court decided that the level of creativity in an insurance template was insufficient to qualify for copyright protection. Facts are surely very different from the case on which Mike is posting but I've always found it amusing enough to retell when the occasion arose.
Glimmer of Sunshine
Trump and his people have a tendency to distort the meaning of the word "emergency" to invoke legal provisions that seem (IMHO) completely inappropriate for the uses to which they are being put. When challenged in court, his people are often arguing that the courts have no ability to review Trump's classification of something as an "emergency." That legal argument is still playing out and, in most cases, has not reached a final SCOTUS decision. The glimmer of sunshine I offer is that if the courts decide they can review these Trumpian classifications, that may restrain his tactics. And if the courts decide in the other direction, it will enable some future President to classify the lingering effects of Salt Typhoon as an emergency and thereby enable at least some remediation.
Fear of Death
Does Professor Stein reason that crossing the street only at green lights also manifests a fear of death?
5 Year Provision
So if Deevers goes back on psy meds for one month every 5 years, his spouse cannot dump him under the insanity provision?
Fixing the Jawboning Issue
A key point in Cathy's article is that the statute does not require that an intermediate (e.g., an ISP) lose Section 230 immunity because of multiple allegations of infringement. That is purely a judicial invention that judges could change without the need for legislation. That is an excellent point (with which I concur).
Error in Response
I did not sya "if it is an off-the-shelf item, the contract lets the provider retain their proprietary and secret info, and if the item is being made to government specs, it’s the government that gets the rights." In all cases, it is a matter of negotiation. I assume (but do not know) that if the government is spending a few billion dollars on a new military toy, then the government will get very extensive rights. However, that shouldn't be the default in all cases and the technical data clause gives the vendor the possibility of negotiating something more favorable with off-the-shelf items. My point is that the vendor to the government can, but doesn't always, win this fight whereas Apple as the vendor to the consumer always wins (absent a right-to-repair law).
More Right to Repair Thoughts
I've never dealt with a contract involving munitions or armaments nut, I'd wager that the government procurement officials negotiating those contracts are very sensitive to what the military may need. They can and do include all sorts of vendor obligations penalties for non-performance that go far beyond what might be found in a generic right-to-repair law.
"Technical Data" in Government Contracts
For better or worse, I have negotiated a fair number of contracts on behalf of companies selling goods or services to DoD. Those contracts are governed by a lengthy and complex set of rules: the Defense Federal Acquisition Rules. One of the many subjects addressed by the DFARS is who owns the data developed or provided by the vendor to the government. In some deals, it will be the government but in others--e.g., where the vendor is providing an off-the-shelf product, it will be the vendor and the vendor will be entitled to retain the trade secret rights it might have in a routine commercial deal. Anyone who wants to know more about this aspect of the DFARs can start by reaing this: https://www.acquisition.gov/dfars/252.227-7013-rights-technical-data%E2%80%94other-commercial-products-and-commercial-services. I recite all this as part of making the point that, whereas the consumer who wants to buy an iPhone has miniscule negotiating power vs. Apple, which is a good justification for right-to-repair laws, the power dynamic is usually reversed for the small-to-medium sized commercial vendor trying to sell something to DoD and the policy arguments for and against right-to-repair are very different.
If a Horse Could Talk
Neigh. Neigh.
Nice Nuanced Analysis ...
...of what it means can be found at https://www.justsecurity.org/97268/murthy-missouri-social-media-disinformation/.
Fitbit
As we all know, anecdotal evidence isn't all that persuasive so take this with a grain (or gallon) of salt. I'm on my 3rd generation of Fitbit watches. They work for me (e.g., resting heart rate down) and have never broken. Had to call tech support once or twice in the last 5 years but they answered the phone and were helpful. Phone app plus watch are all I use so cannot comment on criticisms outside of those.
NYT Comments on the Murphy Article
Haven't looked again today but, yesterday, I spent a few minutes looking at the comments from NYT readers on the Murphy OpEd. I don't think I saw a single one that understood the issue or commented intelligently. Sadly, they were almost all some version of "save the kinds" and/or "Big Tech is evil."
Duty to correct misinformation
I may be old enough to know a trivia fact unknown to many TechDirt readers. Once upon a time, when computers were first able to simulate fax machines, some of the European countries required vendors to register their systems before they could be allowed to send computer-generated faxes to the corresponding country. One of them--I think it was France--had a requirement that if the computer dialed what it thought was a fax number but a human being answered the phone, that number had to be stored so that the system could remember never to call it again. During that same era, another country--might have been Switzerland--required that the sending machine "listen" for a special tone that indicated an emergency and then immediately disconnect. That would allow the authorities to send a notification warning the recipients to head for their bomb shelters.
I like your characterization of the argument. The non-compete does allow the employer to protect some i.p. more cheaply than via simple enforcement of a typical employer-employee NDA. An employer could try using different wording in an NDA to make it easier to detect violations. Then we could debate about whether encouraging employers to get creative with those extra NDA provisions (e.g., liquidated damages, expedited discovery mechanisms) was a good policy choice. I think I'll save that debate for another day.
Same subject
To all those commented on my post, some observations: 1) I didn't say I always thought allowing unrestricted non-competes was a good idea. Indeed I continue to acknowledge the weight of the argument for disallowing them in many instances. I just wanted to make the point that it';s not a purely binary choice and that there are competing interests worth considering. 2) The FTC rule would allow non-competes in limited instances. Did they draw the line (specific parameters re salary and executive position) exactly right? I don't know but I think it's worthy of debate.
Drilling down on the I.P./NDA Argument
Mike says this: "The FTC ruling does not outlaw NDAs or trade secret laws. Those are what protect “proprietary formulas.” So, the concern that Mr. Ryan is talking about here is wholly unrelated to the rule. ... They can still use NDAs (and IP laws) to protect their 'IP.' That’s got nothing to do with non-competes." I beg to differ. When an engineer who is privy to a company's trade secrets moves to a competitor, it is certainly possible that she might violate her NDA with her prior employer but her prior employer is going to have a hard time figuring out whether and when that has happened. Sure, the prior employer can sue and try to find out via discovery and depositions but that's an expensive and time consuming process. A time-limited non-compete (1 year for example) could be a more efficient way to protect the prior employer's legitimate interest. I acknowledge the weight of Mike's arguments about innovation etc. but I disagree with the claim that non-competes have nothing to do with IP/trade secrets.
Off subject comment
Apologies in advance for cluttering this comment stream but wanted to call people's attention to an article in today's NYTimes about a lawsuit involving Kim Kardashian, furniture designs, and various silly claims of trademark and copyright infringement. Looking forward to reading Mike's (hopefully) forthcoming takedown.
Possible Fix?
I agree, 100%, with the authors and the consensus of those commenting that a website is not a shopping mall and that the moderation choices of the website owner are entitled to 1st Amendment protection. I'd like to speculate about ways to mitigate the harm if SCOTUS makes a contrary decision. Surely a website could attach a comment to the objectionable post (objectionable in the view of the website moderation rules) saying "We would not have allowed this post but for the recent horrid SCOTUS decision." Perhaps they could go further and partially hide the objectionable post in the same way that Techdirt hides comments "flagged by the community" behind a clickable caption. I would appreciate hearing the views of the Techdirt community as to whether, and how much, this type of approach would help.
More on Mr. Rupp
This is from CBS News: "R. Anthony Rupp III, a civil rights attorney, said he did not initially intend to sue over the incident, but changed his mind after learning the same officers were involved two months later in the arrest of an unarmed man who died of an asthma attack after struggling while being handcuffed."
How did Mr. Rupp know that ...
... the specific statute that required use of lights after dark was named the "New York Vehicle and Traffic Law"? Wondering about that, I Googled the name and figured out what Mr. Rupp does for a living: https://rupppfalzgraf.com/staff/tony-rupp-founding-partner/
Uncopyrightable Subject Matter
Sadly, I have long since thrown away the textbook that was used in the law school class I took on copyright 36 years ago. But I do recall a case in that book, perhaps dated from around 1830 or so, in which Lawyer #1 sued Lawyer #2 alleging that Lawyer #2's template for an insurance policy infringed Lawyer #1's template. Court decided that the level of creativity in an insurance template was insufficient to qualify for copyright protection. Facts are surely very different from the case on which Mike is posting but I've always found it amusing enough to retell when the occasion arose.