JSpitzen 's Techdirt Comments

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  • On the post: No, Revoking Section 230 Would Not 'Save Democracy'

    JSpitzen ( profile ), 01 Feb, 2021 @ 05:46am

    Re: Re: leather products

    Also, on your first question, I return to the NYTimes Babcock/Atas article that got me started on this thread. The Babcock's were damaged and are continuing to be damaged online by the activities of a person against whom there is little or no effective remedy. In a perfect world, they'd have a remedy against someone. One source of the damage to them seems to be folks like "RipOffReport" and other "complaint" sites. So, maybe a remedy against them? But maybe it's a slippery slope and better to leave things alone. I don't have a perfect answer--just wanted to ask the question.

  • On the post: No, Revoking Section 230 Would Not 'Save Democracy'

    JSpitzen ( profile ), 01 Feb, 2021 @ 05:26am

    Re: Re: leather products

    I have the most difficulty with the latter question and agree that, if politicians start fiddling with Section 230, there is clearly a very great risk of undesirable consequences. That might be the best argument I've heard for not touching it at all. (As to the former question, we've seen multiple cases and essays where the judge or the author manages to misunderstand Section 230. With 20-20 hindsight, one can imagine drafting the words to avoid those misunderstandings.)

  • On the post: No, Revoking Section 230 Would Not 'Save Democracy'

    JSpitzen ( profile ), 31 Jan, 2021 @ 06:39am

    Re: More of the same

    I apologize for the (gentle) flattery. It was not designed to have anyone "go easy" but, rather, to invite reasoned discourse. I do not want to destroy Sec. 230 but neither do I think it perfect beyond improvement. When I looked a little while ago, the NYTimes article had several hundred comments, the large majority from uninformed people who do not understand the issue and many of whom think the Babcock story is a good reason to destroy Sec. 230 and/or take various steps antithetical to traditional First Amendment rights. To argue that Sec. 230 is beyond improvement runs the risk that those uninformed people and their uninformed political representatives will prevail on these issues.

  • On the post: No, Revoking Section 230 Would Not 'Save Democracy'

    JSpitzen ( profile ), 30 Jan, 2021 @ 02:02pm

    Re: Re: Reworking Section 230

    One cannot prove anything via weird corner cases which, perhaps, this is. But the victims described in this article seem to have deployed multiple legal resources to address their problem without success. Is it impossible to think of anything to improve the situation? Just to throw out an idea, suppose new legislation created a DMCA-style take down system. Without more, it would surely be abused but, again, suppose we try to fix that. E.g., before I can send a take down notice, I have to deposit a $1,000 bond with an independent escrow agent. If a court ends up concluding my take down was in bad faith, I forfeit the bond. This is just off the top of my head so it undoubtedly has bugs which the Techdirt community will soon point out. But the Techdirt community contains a lot of smart people--let's see if we can debug the idea or come up with a better idea.

  • On the post: No, Revoking Section 230 Would Not 'Save Democracy'

    JSpitzen ( profile ), 30 Jan, 2021 @ 02:57pm

    Sec. 230

    Mr. Stone, whose thoughtful commentary I admire, says "if the system still works on notice-and-takedown, it will still suck." He may be right but I want to keep trying. Let's invent a system where takedown's have to be "certified" before they take effect. We invent a certification system involving independent arbitrators who the issuer of the takedown request has to pay (pick a number) to have them do their job. The system can identify someone as "vexatious" and increase the fee due on subsequent takedowns. There is a suitable appellate process to deal with situations where the first level gets it wrong.

    Once again, I repeat, this is just brainstorming. I am a fan of Sec. 230 vs. repealing it or vs. any of the public proposals for change. But surely it is not perfect. Can we not do better?

  • On the post: No, Revoking Section 230 Would Not 'Save Democracy'

    JSpitzen ( profile ), 30 Jan, 2021 @ 01:07pm

    Reworking Section 230

    As an intro to this comment, I am a fan of Sec. 230 and get the arguments about the difficulties with content moderation at scale. But it strikes me that there is an alternative to articles explaining, every time someone has a proposal to amend Sec. 230, why the proposal is defective (as, indeed, they generally are). The alternative would be to propose one or more ways to improve Sec. 230. I do not have an immediate proposal in mind but this comment is triggered by this article in the NYTimes: www.nytimes.com/2021/01/30/technology/change-my-google-results.html. It describes a situation where the true villain is essentially "judgment proof" and the only way to remedy the situation may be to force the platforms hosting the villain's post to take some constructibe action. I would like to hear what everyone thinks about this.

  • On the post: Not Easy, Not Unreasonable, Not Censorship: The Decision To Ban Trump From Twitter

    JSpitzen ( profile ), 10 Jan, 2021 @ 10:58am

    Editorial Discretion

    This is from a Fox News article about the views of Brit Hume:

    Fox News Senior Political Analyst Brit Hume is calling out big social media companies for banning President Trump's accounts based on what he says are "pure editorial judgments." "These social media companies have a legal right to do this, but they should not then pose as open platforms entitled to legal protections from the legal risks faced by publishers," he wrote in a tweet Friday night.

    There is more in the article that I have not excerpted above. It is funny/sad that Mr. Hume seems to think editorial judgements might be a bad thing and that someone who makes editorial judgement ought to be treated as a publisher. As to whether he understands but does not like Section 230 or just does not undertand it, I cannot say,

  • On the post: Why Keep Section 230? Because People Need To Be Able To Complain About The Police

    JSpitzen ( profile ), 18 Aug, 2020 @ 02:37pm

    Another Reason Sec. 230 is Needed

    Check out the insane (should be in all caps) lawsuit described here: https://www.theverge.com/2020/8/18/21373530/robert-kennedy-childrens-health-defense-facebook-zuckerberg-fact-checking-lawsuit

  • On the post: The Fortnite App Store Battle: A Real Antitrust Conundrum, Or Just A Carefully Planned Out Contract Negotiation?

    JSpitzen ( profile ), 18 Aug, 2020 @ 09:54am

    Big Guns

    Epic hired Cravath, among the most presygious law firms in the known universe, with a litigation team led by a former Assistent Attorney General for the Antitrust Division of DOJ. Hard to imagine a more intense opening salvo.

  • On the post: Tech Policy In The Time Of Trump: Mid-2020 Edition

    JSpitzen ( profile ), 22 Jul, 2020 @ 02:49pm

    My Two Cents

    I can find occasional items in this post on which I might disagree and might be interested in a reasoned debate (which is not my goal for this comment). But, with the view from 10,000 feet at least, I hear a legitimate, good faith argument. If people want to advocate different positions on net neutrality or governance, they are entitled to do that but I reject any generalized ad hominem attack. (Or, did I read it wrong and the previous commenters were just being sarcastic?)

  • On the post: Tech Policy In The Time Of Trump: Mid-2020 Edition

    JSpitzen ( profile ), 22 Jul, 2020 @ 02:49pm

    My Two Cents

    I can find occasional items in this post on which I might disagree and might be interested in a reasoned debate (which is not my goal for this comment). But, with the view from 10,000 feet at least, I hear a legitimate, good faith argument. If people want to advocate different positions on net neutrality or governance, they are entitled to do that but I reject any generalized ad hominem attack. (Or, did I read it wrong and the previous commenters were just being sarcastic?)

  • On the post: That Was Quick: Appellate Court Says Simon & Schuster Not Subject To Prior Restraint Order Over Mary Trump's Book; But Fight's Not Over Yet

    JSpitzen ( profile ), 03 Jul, 2020 @ 12:27pm

    Re: Re: New developments

    The statute of limitations in an action for fraud differs state by state. I think it might be 6 years in New York so it would long have expired. But this is different: it is a claim of a specific type of dishonesty at the time of contracting that, if valid, could invalidate the whole contract no matter when it is raised.

  • On the post: That Was Quick: Appellate Court Says Simon & Schuster Not Subject To Prior Restraint Order Over Mary Trump's Book; But Fight's Not Over Yet

    JSpitzen ( profile ), 03 Jul, 2020 @ 08:05am

    New developments

    Apparently Mary Trump has made a filing with further detail about the NDA. She alleges in her filing that “I relied on false valuations provided to me by my uncles and aunt, and would never have entered into the Agreement had I known the true value of the assets involved.” She also says that the inaccuracy of the valuations was revealed in a 2018 New York Times investigation.

    I cannot speak to the truth of these claims by Ms. Trump but I think she is setting up for a legal argument known as "fraud in the inducement." Details about this concept can be found at https://www.law.cornell.edu/wex/fraud_in_the_inducement. If Ms. Trump prevails, it could make the NDA void.

    For me, none of this has much to do with the prior restraint issue. I don't see how the courts can prevent S&S or Ms. Trump from proceeding with publication in view of the 1st Amendment arguments. The fraud-in-inducement issue has to do separately with whether anyone is liable for damages following publication.

  • On the post: NY Judge Apparently Unaware Of The Supreme Court's Ban On Prior Restraint: Puts Temporary Restraining Order On Trump's Niece's Book

    JSpitzen ( profile ), 02 Jul, 2020 @ 04:50am

    Re: What would happen if...

    There are cases (that I read a long time ago so I cannot provide exact details) where (a) person "X" violates an injunction of a lower court and (b) the injunction is subsequently held invalid by a higher court. As I recall, X can still be sanctioned for violating the injunction on the theory that, at the time, it was strill in force and the higher court only vacates the order later, not retroactively.

  • On the post: NY Judge Apparently Unaware Of The Supreme Court's Ban On Prior Restraint: Puts Temporary Restraining Order On Trump's Niece's Book

    JSpitzen ( profile ), 01 Jul, 2020 @ 04:21pm

    Prior Restraint Is Not the Sole Issue

    Hopefully Mike is right and the higher NY courts (next level up, called the Appelate Division, or level above that, the Court of Appeals) will see the light and dissolve the restraining order. I predict that will happen quickly enough that the book is out long before the elction. However, even if Harder/Trump lose on that aspect, they might still have a claim for damages for breach of the confidentiality agreement everyone signed once upon a time. No way to evaluate/analyze that aspect without a lot more detail about the confidentialty agreement and the cicrumstances in which it was signed but the 1st Amendment likely doesn't help the author or publisher with that problem if the plaintiff prsues the case to "the bitter end."

  • On the post: Hello! You've Been Referred Here Because You're Wrong About Section 230 Of The Communications Decency Act

    JSpitzen ( profile ), 23 Jun, 2020 @ 09:47am

    3 Cheers!

    Well said. Three Cheers for Mr. Masnick!

  • On the post: Arrest Numbers Show The NYPD Is Handling Pandemic Enforcement With The Same Biased Enthusiasm It Put Into Stop And Frisk

    JSpitzen ( profile ), 11 May, 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?

  • On the post: Techdirt Podcast Episode 238: Larry Lessig Defends His 'Clickbait Defamation' Lawsuit

    JSpitzen ( profile ), 14 Feb, 2020 @ 06:34am

    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.

  • On the post: Techdirt Podcast Episode 238: Larry Lessig Defends His 'Clickbait Defamation' Lawsuit

    JSpitzen ( profile ), 12 Feb, 2020 @ 02:59pm

    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 https://www.nytimes.com/2019/09/14/business/lessig-epstein-ito-mit.html. 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.

  • On the post: California Assemblywoman Lorena Gonzalez Says She Simply Doesn't Believe All Of Those Who Have Been Harmed By Her AB5 Bill

    JSpitzen ( profile ), 13 Jan, 2020 @ 04:09pm

    New Lawsuit Trying to Block AB5

    See details here: https://www.scribd.com/document/441317732/Postmates-and-Uber-v-State-of-California#from_embed

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