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  • Mar 23rd, 2015 @ 12:59pm

    Re: Regulations

    In one sense, you're right. But the thing is, the taxi companies have spent a long time intentionally building that "big book of regulations". Legacy players have a strong incentive to create more rules (that they already meet) which prevent anyone new from competing with them.

    They made their bed, now they get to lie in it.

  • Mar 13th, 2015 @ 2:07pm

    Borello test

    I was curious about the "Borello test" to which Judge Chen referred. From California's Division of Labor Standards Enforcement:

    There is no set definition of the term "independent contractor"[.] ... For most matters [...] this means applying the "multi-factor" or the "economic realities" test adopted by the California Supreme Court in the case of S. G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989) 48 Cal.3d 341. In applying the economic realities test, the most significant factor to be considered is whether the person to whom service is rendered (the employer or principal) has control or the right to control the worker both as to the work done and the manner and means in which it is performed (emphasis added). Additional factors that may be considered depending on the issue involved are:

    1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
    2. Whether or not the work is a part of the regular business of the principal or alleged employer;
    3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
    4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
    5. Whether the service rendered requires a special skill;
    6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
    7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
    8. The length of time for which the services are to be performed;
    9. The degree of permanence of the working relationship;
    10. The method of payment, whether by time or by the job; and
    11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.
    Even where there is an absence of control over work details, an employer-employee relationship will be found if (1) the principal retains pervasive control over the operation as a whole, (2) the worker’s duties are an integral part of the operation, and (3) the nature of the work makes detailed control unnecessary. (Yellow Cab Cooperative v. Workers Compensation Appeals Board (1991) 226 Cal.App.3d 1288)

    IANAL, but most of these factors seem to fall in favor of Uber. The primary factor (in bold) supports the contractor angle, since Uber does not have much control over how or if a driver operates. The secondary factors are somewhat split: 1, 2, and 5 would suggest an employee relationship, but the remainder lean towards contractor. Factors 3, 4, 8, 9, and 10 are particularly slanted towards Uber's position.

    I think Uber has a reasonably good case here. I can also see why Judge Chen was unwilling to grant summary judgement.

    (For those of you who are neither lawyers nor legal nerds, the bar for "summary judgement" is very high. You have to assume everything the other side says is true and still show that you'll win. Most real cases won't be decided this way. Summary judgement is mainly useful for things like "they accused me of something that isn't illegal", or "they aren't even pretending to have any proof".)

  • Dec 11th, 2014 @ 3:53pm

    Re: Spying

    "Spy" is a rather derogatory term. They collect information to provide services. One of those services happens to be "ads for things you actually care about".

    It's like saying your bank or phone company is "spying" on you because they have all this personal data. If you want to use their product then there's no way for them not to have your data.

    In both cases no humans will ever see your data. In theory they could, but personally I trust Google's internal data security a lot more than BigBankInc or EvilPhoneCompany.

  • Dec 11th, 2014 @ 3:22pm

    (untitled comment)

    And if you go to the page where you would get access to the pirate content, it says "get access now" and underneath it you have the flags of Visa, of Mastercard, of American Express, of Cirrus and of Paypal. And below that it tells you all the devices it works on and shows you the logos of Apple, Android, and so forth.

    As Mike points out, this doesn't sound like TPB at all. It does sound like Amazon or Google Play... which is probably what he was actually looking at.

  • Dec 2nd, 2014 @ 9:07pm

    Pointless Perjury

    What's really dumb is that (in most jurisdictions) the sentence for being an accomplice is the same as the sentence for actually committing the crime. The prosecution didn't need to convict Smith of the burglary in the first place.

  • Oct 17th, 2014 @ 2:12pm

    Re: Defamation

    Legal defamation isn't relevant, if we're talking about the original incident. The parents just have to be aware that their child has a "proclivity or propensity for the specific dangerous activity".

    Kitchens v. Harris, 305 Ga. App. at 800 (Where an injured person claims that
    a child’s parents negligently allowed their child to gain access to a dangerous
    instrumentality, “the standard for imposing liability upon a parent for failing to
    prevent the child’s action is whether the parent knew of the child’s proclivity or
    propensity for the specific dangerous activity” that resulted in another’s injury.)
    (citations and punctuation omitted); Garcia v. Grepling, 254 Ga. App. 219, 220 (561
    SE2d 868) (2002) (In a case in which a child injured another, not through the use of
    any instrumentality, but through an unprovoked assault, the plaintiff would be
    required to show that the child’s parent was on notice of a dangerous proclivity or
    propensity for the specific dangerous activity that resulted in the plaintiff’s injuries.);
    McNamee v. A. J. W., 238 Ga. App. 534, 535-536 (1) (519 SE2d 298) (1999) (In a
    case in which a child injured another, not through the use of any instrumentality, but
    through having sex with another child, the plaintiff would be required to show that
    the child’s parents should have anticipated that harm would result from the
    unsupervised activities of the child and failed to exercise the proper degree of care
    to guard against that result.); Saenz v. Andrus, 195 Ga. App. at 432 (2) (An
    instrumentality is not inherently dangerous if such object is not likely to cause serious
    injury when used in a proper manner and with due care but only becomes dangerous
    if it is intentionally used to cause injury or is handled in a reckless and dangerous
    manner.); Jackson v. Moore, 190 Ga. App. 329, 330 (378 SE2d 726) (1989) (In a case
    in which a child injures another, but not through the use of a dangerous
    instrumentality, “the standard for imposing liability upon a parent for failing to
    prevent the child’s action is whether the parent knew of the child’s proclivity or
    propensity for the specific dangerous activity” that resulted in the other person’s
    injuries.) (citations omitted); Hill v. Morrison, 160 Ga. App. at 151-152 (Where a
    person “entrusts another with a dangerous instrument under circumstances that he has
    reason to know are likely to produce injury, [that person] is liable for the ensuing
    consequences.” Recovery against a parent for the tort of a child “is permitted where
    through parental negligence a child is permitted access to an instrumentality which,
    if not properly used, is foreseeably likely to cause injury to a third person, [but] this
    does not make the parent liable for an injury negligently inflicted by a child where
    there is no dangerous proclivity known to the former and no reason to anticipate the
    injury which in fact occurred.”) (citations omitted); Muse v. Ozment, 152 Ga. App.
    896, 898 (264 SE2d 328) (1980) (Recovery is not permitted against a parent for a
    child’s tort “where the parent has no special reason to anticipate” that the child may
    harm another, either because of the child’s “known dangerous proclivities” to engage
    in the conduct that caused the injury or because of the child’s “possession of
    [inherently] dangerous instrumentalities[.]”); Assurance Co. of America v. Bell, 108
    Ga. App. at 766-767 (4) (“[P]arents may be liable where they have entrusted a
    dangerous instrumentality to their children or have failed to restrain their children
    who they know possess dangerous tendencies.”) (citations and punctuation omitted).

    See Jacobs v. Tyson, 200 Ga. App. at 123 (A jury could find that a child’s
    parents were on notice of the risk of injury where they kept a pistol in their house
    loaded and in a location where it was accessible to their 12-year-old while he was
    present in the home with another child without adult supervision, since, “[u]nlike a
    butcher knife or a golf club, a loaded firearm may be considered an inherently
    dangerous instrumentality, in that, . . . it can inflict serious bodily injury by ‘going
    off’ accidentally.”) (citations omitted); Mayer v. Self, 178 Ga. App. 94, 95 (1) (341
    SE2d 924) (1986) (A jury could find that a child’s parents were on notice of the risk
    of injury from a golf club swung by a 5-year-old child while playing with other
    children, in the back yard, without supervision, where there was evidence that the
    child’s parents knew about a previous incident in which their child had hurt someone
    with a golf club.); McBerry v. Ivie, 116 Ga. App. 808, 811 (159 SE2d 108) (1967) (A
    jury could find that a child’s parents were on notice of the risk of injury from a
    shotgun “which was a dangerous instrument” furnished to a 13-year-old child by his
    parents without reasonable instruction and supervision as to its use.).
    Cf. Kitchens v. Harris, 305 Ga. App. at 800-801 (A child’s parents were not
    liable for injuries resulting from the child allowing another child to use the family’s
    all-terrain vehicle where there was no evidence that the child had ever used the ATV,
    or allowed another child to do so, without the permission and presence of the parents
    and therefore the parents were not on notice of their child’s proclivity or propensity
    for the specific dangerous activity that resulted in the other child’s injury.); Garcia
    v. Grepling, 254 Ga. App. at 220 (A child’s parents were not liable for serious injuries
    the child inflicted on another student in an unprovoked assault, despite evidence that
    the child had been suspended from school twice, “once for accepting another
    student’s challenge to a fight, knocking the other student to the ground, and then
    walking away and once for pushing one student, spitting on another, and using foul
    language and inappropriate gestures during the taping of a video for a student
    project,” since the previous incidents “consisted of rather typical schoolyard
    altercations in which no one complained of any injuries” and therefore did not
    constitute notice of any propensity of the child to engage in the specific dangerous
    activity resulting in the plaintiff’s claim.); McNamee v. A. J. W., 238 Ga. App. at 536
    (1) (Generally, Georgia law does not place a duty on parents to arrange for
    supervision of their teenaged children while they are away from home. In the absence
    of evidence that a child’s parents had any reason to suspect that while they were at
    work he was having sex with an underaged girl in their home, the parents could not
    be held liable for any resulting injuries based solely upon his engaging in that
    activity, which he did without their knowledge.); Saenz v. Andrus, 195 Ga. App. at
    432 (2) (A child’s parents were not liable for the injury inflicted by the child throwing
    a butcher knife toward another, despite evidence that the child had previously thrown
    a pocket knife at the wall, because that previous conduct did not demonstrate any
    propensity to handle a butcher knife in a reckless and dangerous manner.); Jackson
    v. Moore, 190 Ga. App. 329, 330 (378 SE2d 726) (1989) (A child’s mother was not
    liable for injuries resulting when the child surreptitiously took car keys from the
    mother’s purse and drove the car, where she had expressly forbidden the child from
    driving and the child had never disobeyed that instruction before and therefore she
    was not on notice of the child’s proclivity or propensity for the specific dangerous
    activity that resulted in the plaintiff’s injury.); Muse v. Ozment, 152 Ga. App. 896,
    898 (264 SE2d 328) (1980) (A child’s parents were not liable for injuries resulting
    from the child’s use of a golf club that was stored in an unlocked building, where
    there was no evidence the child had ever before taken a golf club out and swung it in
    another’s presence and therefore the parents were not on notice of their child’s
    proclivity or propensity for the specific dangerous activity that resulted in the
    plaintiff’s injury.).

    My point, with these walls of text, is that the judge carefully considered the relevant case law and the situation at hand, and he concluded that it's not impossible that the parents could be held liable for their child's behavior. But you write about legal issues all the time, I'm sure I don't need to also quote the high standards for granting summary judgement, or the equivalently low standards for denying it.

  • Oct 17th, 2014 @ 1:59pm

    Re: Re: Re:

    No, the "on notice" (which is kind of a legal term, judging by the citations) was when they were told that their child had created a fake Facebook profile and defamed another student.

    At that point they're not liable for anything. But they have a responsibility going forward to take reasonable steps to make sure their child doesn't do it again. Or keep doing it, in this case.

    I'm not sure what your point is about "it's easy to fake being someone". No one is disputing that the kid did this. He confessed to the school.

  • Oct 17th, 2014 @ 1:54pm

    Re: Re: Re:

    It's not hard at all if you own the account. Or in this case, if your child owns the account. They don't even have to talk to Facebook, they just need to tell little Dustin, "you're grounded for a week, and that page better be gone by then or you'll be grounded for a lot longer."

  • Oct 17th, 2014 @ 1:38pm


    That's the thing - the parents aren't being (potentially) held liable for not monitoring their child. The pages of citations in the footnotes make this abundantly clear. Rather, parents become liable when they are "on notice" that their child might do something bad and they still fail to prevent it.

    For example, a child injuring another in their first ever schoolyard fight does not cause his parents to be liable for that behavior. However, if it's the fifth time he's injured another student, then the parents are liable.

    In this case the parents are certainly not liable for the original creation of the Facebook account. But they very well may be liable for the continuing activity (the account kept accepting friends and posting things) given that the school informed them of the situation.

    Finally, the judge didn't say they are liable, only that they could be, and that the question should be settled by a jury. Sadly TechDirt falls into the "horrible reporting about legal issues" trope, which is depressingly common when talking about motions for summary judgement.

  • Oct 17th, 2014 @ 1:22pm

    (untitled comment)

    This kind of ruling doesn't necessarily mean that parents across Georgia need to immediately start spying on their kids' surfing activities, but it does suggest -- ridiculously -- that upon notification of a problem, they suddenly have a responsibility to monitor and clean up any messes their kids caused. That's very dangerous thinking.

    If you're out in public and your child shits all over the floor, is it "dangerous thinking" to suggest that you clean it up?

    I'm normally in complete agreement with this site's view on free speech issues, but for this one I think you've gone off the deep end. Parents are responsible for their children, in general. I agree that holding a parent liable for stupid things their child does on the internet is a bad idea, but that's not the issue, and no one is claiming it is. (Although for some reason you spend a lot of words talking about it.)

    The issue is whether parents are responsible for cleaning up after their children, and whether they can be held liable for not doing so. This doesn't seem all that dangerous, depending on the standard of negligence required. If we assume a "good faith" attempt is sufficient, then I'm completely fine with this precedent.

  • Oct 8th, 2014 @ 9:42am

    Re: Re: Re: Re: Don't need a magic ball to see where this will head...

    The DoJ derives its authority from the courts. If they defy a court order the whole justice system comes crashing down.

    Barring a complete and explicit transition to dictatorship, this isn't going to happen.

  • Oct 8th, 2014 @ 9:18am

    Re: Re: Re: Re: Re: How Google Works

    "People will google your name, and very old things can come up." (emphasis added)

    But they won't. That's the whole point. The Spanish guy who wanted to hide the 16-year-old foreclosure could have pushed it out of the #1 spot in 3 minutes. All he had to do was create a Google+ page! It would have taken maybe an hour or two to create enough relevant content to push the old irrelevant content down to page 2. And then we're in the same situation as the real world: the records are still there if you go looking for them, but it's not relevant any more, so it's not the first thing that comes up.

  • Oct 8th, 2014 @ 9:09am

    Re: Re: Re: How Google Works

    Should people have the right [...] to ask Google to hide content in their name searches, when such content is inaccurate, inadequate, irrelevant or excessive for the purposes of the data Google collects?

    No, because if those conditions are true, they don't need to. That was my point. Maybe I didn't make it clear enough.

    If content is inaccurate or inadequate, then it should be fixed. If you don't have access to the source, you can still publish more content explaining the problem. And note that if the information really is inaccurate and is harmful, you probably already have legal options via defamation laws.

    If content is irrelevant, then Google wouldn't show it. The top result for your name is the thing that Google believes is the most relevant content related to your name. So far, no one has argued that Google is intentionally messing this up.

    If the only public information about a person is X, then that can't possibly be "irrelevant". It's literally the only fact available. On the other hand, if there is public information about X, Y, and Z, then it's reasonable to argue that X is irrelevant. But then there's no reason to hide X: you just need to show Y and Z as the most relevant information.

    I honestly have no idea what the "excessive" clause means, so I won't tackle that.

    The solution to speech you don't like is more speech, not censorship. If you can successfully defeat negative speech by opposing it with your own, then you deserve to do so. But if the only way you can overcome negative speech is by disappearing it, then you admit its legitimacy.

  • Oct 7th, 2014 @ 3:06pm

    Re: How Google Works

    But we have the right that Google doesn't associate us permanently with that bad event as the first thing that come up when anybody searches our name.

    Well that's easy, because Google doesn't do that, and they never did. So I guess we're all happy now?

    Let me explain. Google doesn't permanently associate anyone with anything. When you search for something on Google, it returns the results that it thinks are most relevant. It uses several factors to decide "relevance", including how well the result matches the query, the language of the result page, the general quality of the result (i.e. page-rank), and the age of the result.

    Yes, that's right. Google prioritizes new pages over old ones. Not by very much; general relevance still matters. If you search for "apple", it will prefer the 8-year-old page about apples over the tweet from yesterday about oranges. But assuming the pages are otherwise equivalent, it will prefer the 2-month-old page about apples over the 8-year-old one.

    Which brings me back to my original point. Results change. New pages appear, old ones become less important. The top hit for any celebrity is not the same as it was a year ago. It might not be the same as it was last week. The only difference between you and that celebrity is that there are fewer potential results for you, and thus your results change more slowly. But they do change. And there's no reason to get the courts involved.

    Problem: When searching for my name on Google, the first result is something bad.

    Solution: Create content that is more relevant, and kick that embarrassing result down to page 2 where no one will ever see it.

  • Oct 7th, 2014 @ 11:09am

    Re: Constructive Criticism

    The attitude you claim here is admirable. However, you seem to be rather more antagonistic towards Mike than this position would require. I admit that I don't follow the comments that closely, but the responses of others suggest that you frequently post aggressive rebuttals, and almost never agree with him.

    A few possibilities:
    a) You actually do hate Mike, and wrote this argument as a self-serving justification.
    b) You genuinely believe you're being impartial, but are bad at it.
    c) You actually are being impartial, and Mike is a dishonest shill.

    Personally, I'm inclined to believe (d), "all of the above". I think it's quite likely that both you and Mike are more biased than you each claim to be, or even realize. This isn't a zero-sum game, after all. You could both be wrong (factually or morally). Then again, so could I.

  • Oct 7th, 2014 @ 10:24am

    (untitled comment)

    "Even more crazy: a court has said this behavior is fine."

    [citation needed]

    As written, it looks like you just made this part up.

  • Sep 25th, 2014 @ 2:39pm


    > At any time the piracy problem could be eliminated almost over night. License those sites.

    How do you imagine that works? The sites don't want to pay for a license, and most of them can't anyways.

    Giving away a free license "solves" the piracy problem, but only in the same way that unconditional surrender "solves" a war.

  • Sep 18th, 2014 @ 2:15pm

    Re: Logical failures

    We are talking about the idea that municipal bureaucrats, cut from the same crooked timber of humanity as Comcast executives, would do a significantly better job than Comcast executives.

    I believe that's called "begging the question".

    Who says municipal bureaucrats are drawn from the same pool of humanity as Comcast execs? Well, you do, clearly, but I don't know why you think that. Are all people evil bastards? If so, we're kind of screwed regardless. If not, then clearly a possible solution is "find the guys who aren't assholes and put them in charge". You may argue that we can't plausibly do that, but you need to put at least a little effort into it.

    But even more than that:

    Who says that it's a person's inherent nature that determines how well they perform, rather than the incentives given to them? Comcast execs are driven to maximize profit; the more profit, the bigger their bonuses. Of course they don't care about quality of service when it doesn't affect the bottom line. That's not because they're inherently evil (although they might be), it's just a natural consequence of how we as a society have decided to compensate them.

    Bureaucrats don't earn a bonus by screwing over citizens. They get a bonus (or a promotion) by doing a good job. That means making citizens happy, or at least minimizing the complaints. And while it's true that some government workers are there because they actually want to serve their community, you don't need to accept that for this argument to work. As long as the bureaucrats are at worst neutral with respect to screwing the customer (citizen), they're a lot better than a monopoly executive.

  • Sep 5th, 2014 @ 11:24am

    Re: Re:

    "They'll either object to and bar it from being admissible as 'unrelated to the case at hand', or just ignore it some other way."

    Yeah, no. Having an alibi is extremely relevant to the case. The only way he goes to jail for this is by somehow pleading out - otherwise, the defense gets to have a field day asking all sorts of funny questions to the police officers guarding him.

  • Sep 4th, 2014 @ 1:42pm

    Re: Tom Wheeler

    It's entirely possible that Mr. Wheeler is a rather decent person, who previously didn't know many of the things that we TechDirt readers take for granted and is now learning how the industry works from the perspective of its customers.

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