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Posted on Techdirt - 24 September 2011 @ 12:00pm

John William Nelson's Favorite Techdirt Posts Of The Week

from the a-few-of-my-favorite-things dept

This week's favorites post comes from lawyer John William Nelson.

This last week saw me declining a big job on ethical grounds, getting stitched up after slicing open my finger cutting onions, having a check not go through and thus leading my bank to mishandle funds, and being asked by Mike Masnick if I wanted to write the favorite posts post for Techdirt this week.

This, dear readers, is the highlight of my week.

I'm a lawyer, so you might see a theme running through my picks. In the interest of introduction brevity, let's get on with it:

Who watches the watchers?

Two posts dealt with recording police. The first dealt with the law behind it (hint: First Amendment) and the second dealt with one reason why the law is the correct public policy.
  1. IL Court: Eavesdropping Law Violates First Amendment When Used Against People Recording The Police
  2. Citizen Recording Of Police Proves Officer Lied About Arrest
The court in Illinois gets it right—the public watches the watchers. The government works for us in the U.S., and public officials performing public acts in the furtherance of the public duties mandated by their public office (that means you, policemen) cannot rely on privacy laws to prevent others from recording or otherwise reporting them. The logic of this isn't hard. The only argument against this is that public officers (police, politicians, bureaucrats, etc) should be allowed to hide what they're doing.

The second post about citizens recording police, and how it showed they lied, is the argument against allowing public officers to hide their acts. Policemen are people too; some of them lie, cheat, and steal, just like some of us. Huzzah for reason.

Their lawyers allowed this?

Sometimes I read things with my lawyer glasses and ask the above question. Then I remember how often clients don't ask their lawyers first, but only come to us when they've painted themselves in a corner. I believe that is what BART did here: This post shows how easy it can be for government entities to violate free speech rights in the digital age. All they have to do is flip a switch in the BART stations, or in Libya, or Egypt, or Tunisia. In this case, government blocked speech before it happened, leaving no chance of a due process determination. (And likely not consulting their lawyers, who should have told them, "I had a hypothetical like this in my Con Law class; the answer is no.") This leads to the next post about free speech, one where the government is trying to shut a speaker down without due process.

"Smokey, this is not 'Nam. There are rules."

There are laws, there are rules, and there are procedures. The laws outline policy, the rules attempt to implement, and the procedures are the tools used to do so. Generally, laws trump rules and rules trump procedure. The Government in the Rojadirecta case appears to believe procedure should trump rules, and rules should trump laws. This post outlines the absurdity: The thing is, courts sometimes value their procedures over logical interpretations of rules and law. I hope the 2nd Circuit doesn't do that here, and I hope the Government gets slammed for their over-reach. This isn't rocket science folks, it's just free speech.

It's smokey in them there woods

My first reaction when reading this headline is to simply say yes: My second reaction, when my soulless lawyer instincts kick in, is to say, "Well, maybe." This post follows the First Amendment trend, and it highlights the ways the First Amendment protects all of us as well as some of the ways government policies chip away at it.

From the British take on free speech, albeit from an American

Some people think free speech can be a problem. This post discusses arguments by a lawyer who takes a very British view on anonymous free speech on the internet: The problem is that he's not British. His arguments run right up against the First Amendment. The approach he suggests would be a restraint on speech, and that's just not the American way. (Although it is the British way; he may want to investigate moving abroad.)

More on the British and speech

I studied a year in England, and I followed the drama of the hacking scandal as it unfolded. I still chat regularly with friends in the U.K., like my mentor Daithí Mac Síthigh, who is an expert on these things, about its implications. While you might think I'd be all in against the actions of the police in this situation, I do recognize the tension between free speech (and protecting sources) and solving crimes. Nevertheless, I believe free speech trumps here. This post looks at the latest in the big Murdoch boondoggle.

How do I know if a violate a secret law?

Or, more importantly, how do I know when you violate that secret law? The next of my favorite post looks at the efforts of a couple of Senators to expose the dark, dirty, secrets of the post-9/11 Department of Justice to a bit of sunlight. I would vote for these Senators if they represented my state. They're actually doing their job, instead of perpetuating a surveillance state that violates the Fourth Amendment. Remember, those who would choose safety over freedom deserve neither.

Righthaven—saving us from copyright trolls without even trying

Righthaven has been much in the news. I've had to deal with copyright demands on folks with no money in pro bono cases. I'm not a fan of the shakedown efforts of these business models. Two posts outline the continuing fall of the one copyright troll:
  1. If Righthaven Declares Bankruptcy, Expect Lawyers To Go After Stephens Media, Media News, And Righthaven Principals
  2. Righthaven Fails To Pay Attorneys Fees Ordered By The Court, Court Asked To Declare Righthaven In Contempt
The first post looks at the ways in which claimants against Righthaven plan to go after the folks behind the scheme. I hope they do—it will be a deterrent against entering into these kinds of sham schemes in the future. The second looks at the ways claimants against Righthaven are trying to get the money they're owed. Ironically, these types of tools are tools many copyright trolls and debt collectors use.

Once again, you can't copyright an idea

This article provides visual aides as to why this is so. They say a picture is worth a thousand words. If so, how many words is a video of thousands of moving pictures, much less three of those videos, worth? I'd write more, but it would take time away from watching the videos.

Come on Craig!

This story angers me. I don't know all the facts, but the facts, as presented, show me an abuse of litigation. (Not ethically, or legally, but in my opinion.) There are many takeaways from this story. First, hire an attorney if you get sued. Second, hire an attorney if someone is trying to collect a crazy debt against you. Third, the court system can be abused by folks to make examples of others. I am disappointed in Craigslist if the facts of this story are true.

Authors, publishers, and technological disruption

This post looks at ways new technology is granting artists—here it is a book author—greater power over the sale and distribution of their work: My wife is a librarian and I hear a lot of scuttlebutt about the industry. Authors hate when publishers mischaracterize books or put terrible covers on them. The ability to self-publish, just like the ability to self-record, empowers artists and democratizes art much in the same way the printing press democratized the recording and spread of ideas.

The new normal in a technologically disrupted world

Following up on tech disruption, this post looks at how companies and artists can still make money by focusing on the fundamentals of sales, rather than adhering slavishly to broken business models:

Global patent regimes violate human rights, and this is why

I was chided in an international IP law class in England for arguing against my professor's views that forcing western patent regimes on developing countries benefit those countries. My classmates, however, were primarily from India and China. They agreed with me, and this post touches on the human rights issues involved: The United States was once the greatest of the IP pirate nations, but now we are the greatest of the IP police. I believe more in innovation than in monopolies, and patents are monopolies.

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