Mason Wheeler’s Techdirt Profile

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  • Jul 19th, 2018 @ 2:40pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    So newspapers and broadcasters, for example, have no free speech rights in your eyes? If congress passed a law saying "no incorporated newspaper may publish articles critical of the president or other elected representatives" on penalty of crippling fines, there would be no First Amendment issue there?

    The people involved in producing it definitely have free speech rights. (And, more to the point here, freedom of the press rights.) Their First Amendment rights would be implicated in any such hypothetical decision.

    No it wasn't. There were private landowners, privately owned spaces where events happened, private universities, private newspapers, private book publishers, private pamphleteers...

    And none of them could reach everybody the way that the Internet enables people to do today. That was simply so far beyond the scope of 18th-century technology as to be unimaginable.

    The framers declined to place first amendment restrictions on their practices, and for good reason - because it makes zero sense to do so.

    ...or because they lacked the reach and influence which, up until recent times, was only available to governments.

    When was it the "sole province of governments" to provide a conversational forum used by a minority of the population, like Twitter?

    See, this is why I said above that you're arguing in bad faith. You're twisting my words into something I never said. What used to be the sole province of governments was to forcibly censor speech in the public square that they disapprove of. Nowadays, when large Internet platforms such as Twitter and Facebook have become our modern-day public square, they have that capability, and thus need to be restrained by the First Amendment.

  • Jul 19th, 2018 @ 1:53pm

    Re: Re: Re: Re: Re: Re: Re:

    First off, I'm proposing that First Amendment rights belong to the people, it's fundamentally a mistake to consider that anyone except for a human being possesses them. Unfortunately, it's a mistake that our court system has actually made, but yes, it was a mistake, and it needs to be undone. I suppose that would count as "stripping corporations of their First Amendment rights" if you want to look at it that way.

    Second, the First Amendment restricts the government, and only the government, from censoring the speech of the people mostly as an accident of history, because when it was drafted, the government was the only entity with the capability of doing so. The very concept of telecommunications was still a century off in the future. (Almost literally; Alexander Graham Bell invented the first telephone in the year the USA was celebrating its first centennial.)

    A democracy is a government of the people, by the people, and for the people. The First Amendment prohibits things whose very nature is so heinous that We The People decided we do not trust anyone, not even ourselves, with that power. So to say that when private entities, through the use of technology that the framers of the First Amendment never considered would ever be possible, develops the capability to do things that used to be only possible to the government, which the government (which is us) has declared we don't want to be possible even when only we can do it and can be held accountable to the people, that it's just fine for an unaccountable private entity to do so, is fundamentally absurd.

    If you become big enough to enter that space, which used to be the sole province of governments, then restrictions that used to apply to governmental conduct absolutely should apply to you as well, such as the First Amendment.

  • Jul 19th, 2018 @ 11:44am

    Re: Re: Is there anyone

    Definitely. After Equifax, believing anything else is simply foolhardy.

  • Jul 19th, 2018 @ 11:42am

    Re: Re: Re: Re: Re:

    I don't see the logic in claiming that Twitter is the public square at all - it seems completely arbitrary and silly to me, a declaration made out of a vague "feeling" just because something is culturally popular or powerful.

    There's nothing "vague" about it, not when top government officials are using it--officially or otherwise--as a tool of public policy, as has been covered elsewhere on Techdirt. (And no, that's not the definition you keep pestering people for, but rather an indicator. They wouldn't be doing so if they didn't recognize it as the de facto public square of our time.)

    And if you don't even have the beginning of a scrap of a definition of when you think it happens, then I think that shows I'm quite correct.

    I think that shows you're arguing in bad faith. How many things do you use and rely upon in your day-to-day life without having a good explanation for how they work? According to your logic, that means they don't actually work at all. According to my logic, that means that you're not an expert in that particular subject, but that doesn't make the fact that they work as observed any less true.

  • Jul 19th, 2018 @ 10:09am

    Re: Re: Re:

    Don't ask me; I'm not a political science expert. I'll leave the definition of exactly when this happened to those who are. But can you really deny that, at some point along the way, it has done so?

  • Jul 18th, 2018 @ 1:59pm

    Re:

    "The point in which they become the *de facto* public square" sounds pretty reasonable to me.

  • Jul 18th, 2018 @ 8:33am

    (untitled comment)

    And, for what it's worth, Twitter has been known to abide by court rulings on defamatory speech in deciding to take down that content, but Marino seems to be asking if they make an independent judgment outside of the courts of what's libelous. Which is both crazy and impossible.

    It's exactly what you'd expect, though, from 20 years of precedent under the DMCA. It's crazy and impossible to expect a platform to correctly make an independent judgment outside of the courts of what's copyright infringment, but that insanity has been around for so long that it's become expected and normalized. So why not push things a bit further?

    As I've said in the past, this will continue until we get rid of the DMCA.

  • Jul 16th, 2018 @ 2:52pm

    (untitled comment)

    > Platforms are in the business of facilitating speech, and they should be able to choose which laws to expose themselves to that will give them the best ability to do it.

    Wait... so when a platform goes venue-shopping for favorable laws, this is a good thing, but when someone with a grievance against them goes venue-shopping for favorable laws before seeking redress in court it's a sleazy legal tactic, as Techdirt has so often affirmed in the past?

    This doesn't seem like a very principled stance, and it feels like a good way to incentivize abusive business practices...

  • Jul 12th, 2018 @ 10:31am

    (untitled comment)

    Not necessarily a bad thing and definitely an interesting tack to take -- terming records generated by devices (but stored by third parties) as "property" still at least partially owned by device users.

    That would be great, but we aren't even close to there yet in our understanding of property rights in the digital age. Not when we have no affirmation that the devices themselves are property of their nominal owners, and not the property of the manufacturers, the carriers, or the software developers whose software is installed on them...

  • Jul 11th, 2018 @ 11:42am

    (untitled comment)

    In addition, it’s also rather ironic, considering that a huge part of Facebook’s meteoric growth was driven by importing contact information from other services, especially Gmail (which led to a dispute between Google and Facebook back in 2010, when Google briefly cut off Facebook’s ability to access Google contacts over its API because Facebook wasn’t reciprocally allowing other services to access contact information on Facebook).

    Google: Don't be evil.

    Facebook: Don't even bother pretending we're not evil.

  • Jul 11th, 2018 @ 11:38am

    Re: Re: Re: Actlually, DMCA slows pirates from doing what they want:

    To paraphrase Captain America, every time someone tries to stop a piracy before it starts, innocent people get hurt. Every time.

  • Jul 11th, 2018 @ 8:05am

    (untitled comment)

    However, the purpose of the DMCA is to provide legal protection for technological protection measures, ultimately to protect the exclusive rights protected by copyright.

    And this is why it needs to be repealed. There is no such exclusive right that necessitates DRM. (There's a reason it's called copy-right and not usage-right.) Here we have the DOJ mistakenly claiming that DRM protects copyright, but also together with it, the very interesting statement that the DMCA provides legal protection for DRM.

    Why? Because of what DRM fundamentally is: hacking your computer and turning it against you, making it do things you do not want it to do. If it didn't specifically have the DMCA legitimizing it, it would be as illegal as any other form of computer hacking, and here we have the DOJ coming right out and admitting it.

    Well, that's what needs to happen. It's more critical today than ever, in a world of data breaches and private surveillance, with malware abounding and bad actors like Facebook spying on you through your mobile device, that computer owners be able to assert their right of ownership over their own property. As long as DRM is treated as legitimate, we can't do that, and as long as the DMCA remains on the books, DRM remains legitimate.

    The DMCA must die.

  • Jul 5th, 2018 @ 11:09am

    Re: Re: Re: Re:

    Dude, the insulting language is completely uncalled for. I understand Eternal Vigilance just fine; I simply think that you're overstating things and being needlessly pessimistic. When all of the problems in a system can be traced back to a single root cause, then going after that one thing makes your work a lot easier. I'm saying "work smarter, not harder."

  • Jul 5th, 2018 @ 10:12am

    Re: Re:

    it will never die

    I don't believe that. I just think we're not killing it properly.

    You ever garden? Weeds are a fact of life, but you don't just throw up your hands and say "Weeds. Nothing I can do about them." In fact, there are two ways to deal with them. You can cut off the weed that you see above-ground, or you can uproot it.

    If you cut it off above-ground, the root remains alive and viable, and the weed will appear again after not too long. But if you get rid of the roots, then the whole thing is dead and won't come back.

    The root of copyright abuse on the Internet is the DMCA. (Yes, I know we're talking about Europe here, but even so, this remains true. Having such laws on the books in the US gives other countries something to point to to give their own abuses legitimacy.) The DMCA establishes two basic principles that threaten the long-term viability of the open Internet: notice-and-takedown (content can be "judged" to be illegal on accusation alone, with no involvement of an actual judge and no due process whatsoever) and anti-circumvention of DRM (you don't actually own what you buy, and attempting to treat your property as your property puts you on the wrong side of the law.)

    Everything bad we've seen in digital copyright in the last 20 years or so has been based on one or both of those two principles.

    Pull up the root and the weed will die for good. We need to push back, and keep pushing back, until we repeal the DMCA.

  • Jul 5th, 2018 @ 9:13am

    (untitled comment)

    In honor of saving memes, I'd like to post a situationally-appropriate meme of the "I'm not dead yet!" scene from Monty Python and the Holy Grail. Unfortunately, Techdirt's markdown flavor doesn't support images, so...

    Pretend this image is here.

    Now we've got a bit of momentum on our side. We need to keep working on this, keep pushing back, until we can kill it for good.

  • Jul 3rd, 2018 @ 11:42am

    Re: Re:

    It does worse than concede the argument to them; it concedes the high ground to them and gives them a rallying point, especially if they're level-headed enough to employ the classic troll tactic of making a big show of how reasonable they're being when called on their trollery. The only effective counter is to actually be more reasonable than them, consistently.

  • Jul 3rd, 2018 @ 10:25am

    (untitled comment)

    It's also at the root of the core problem with Article 3 of the proposed EU law. This section deals with the important new field of text and data mining (TDM), which takes existing texts and data, and seeks to extract new information by collating them and analyzing them using powerful computers.

    Also known as "surveillance." The vast majority of "data mining" is composed of spying on people for one reason or another.

    The current Copyright Directive text allows TDM to be carried out freely by non-profit research organisations, on material to which they have lawful access. However, companies must pay publishers for a new, additional, license to carry out TDM, even on material they have already licensed for traditional uses like reading.

    Why are you saying that like it's a bad thing? Discouraging privatized surveillance is a laudable goal, even if it's not specifically the intent of this law.

  • Jul 3rd, 2018 @ 9:31am

    (untitled comment)

    Trying to get this to not pass is not enough. We need to actually push back.

    We need to get a reform bill in Congress that undoes the damage of the DMCA and subsequent abuses. At the top of the agenda should be decreasing copyright terms, doing away with the morally indefensible notice-and-takedown regime, and stripping legal protection from DRM. If we begin to move things back in the right direction, it will take the wind out of the Europeans' sails by making it more difficult to claim they're following worldwide trends.

  • Jul 3rd, 2018 @ 8:37am

    (untitled comment)

    Basically, Liptak found some liberals who are now upset because they realize conservatives get their speech protected by the First Amendment too. The response to that should be "duh" or just (in true free speech fashion) plain mockery.

    No, it really shouldn't. That would do more harm than good.

    It needs to be recognized as a fundamental law of the Internet, on par with Godwin's Law, that in any debate, mockery is the first resort of those who realize they're out of valid points, as an attempt to distract the audience from realizing the same, and that employing it automatically causes you to lose the argument.

    People are slowly beginning to understand this, (about 20 years too late,) and even well-intentioned mockery will be likely to backfire. The appropriate counter to bad speech is better speech, not sinking to their level.

  • Jul 2nd, 2018 @ 2:44pm

    Re: Re: Re: Of course there's bias

    No, I don't think they're the same thing, but it's pretty clear from Tim's articles that he has some trouble with that particular bit of nuance. He seems to believe that all police are either corrupt or--nearly as bad--enablers of those who are.

    It's the Headline News Effect at its worst: stuff that goes right doesn't make the news, because there's nothing unexpected or sensational about it. So if you uncritically buy into what you see on the news, you might end up thinking that X is really, really bad when it's actually just fine except in a few exceptional cases.

    Combine this with Confirmation Bias and Libertarian tinfoil hattery and you get... well... Tim Cushing's views on police, to a T.

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