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  • Jun 30th, 2016 @ 12:22pm

    Careful What You Wish For

    Be careful on this. I was hopeful at first too, since the CFAA is such a horribly overbroad and vague law, but this may open up a Pandora's Box.

    The researchers in this case are trying to prove that some algorithms have racially biased results, and if they're successful other groups will use that as evidence of intentional discrimination. Even if a successful defense is raised, it's still proof of disparate impact, so anyone with any kind of automated marketing or other identification could be on the hook for civil rights lawsuits because their algorithm identified people in a biased manner.

    This is particularly tough with machine learning, since you don't actually program the algorithm, you just program how to program itself, so you may be innocently guilty of a violation of the law, and since with disparate impact your intentions don't matter we should expect to see people put through the wringer because of what technologists would consider innocent conduct.

    Of course, this is a problem with other laws, not the fixing of the CFAA specifically.
  • Jun 20th, 2016 @ 10:19am

    Use of Trademark

    Mike you're entirely wrong about the use of the Twitch trademark being "nominative fair use." Fair use doesn't apply to trademarks.

    Instead, this is explicitly correct use. The entire point of a trademark is to dispositive lay identify the mark owner, so there can be no ambiguities in what entity you're referring to. The bot company's use of the Twitch mark does just that - it explicitly tells users that their services work on Twitch, which is the entire point of trademarks.

    This isn't a case about possible trademark misuse, this is about a mark holder not liking the statement about them and trying to use the power of the state to stop someone else's speech. Perfect example of why we need a federal SLAPP act.
  • Jun 2nd, 2016 @ 10:06am

    Criminal Contempt of Court

    This sounds familiar to me. Attorney behave poorly in court, often lying to the judge and other litigants, then get slapped firmly for their actions and complain that the right process wasn't followed when the possible sanctions were potentially much stronger.

    Where have I heard this before? -can-watch-it-all.shtml

    And the money shot:

    "Let's say you're right," said Pregerson. "Do you want us to send this back and have this turn into a criminal contempt proceeding?"

    "Absolutely, your honor," said Voelker. "My clients want their day in court, with procedural protections."

    The judges were taken aback at that remark.

    "With a potential penalty of life in prison for criminal contempt?" asked Tallman. "They're prepared to run that gauntlet?"
  • Jun 2nd, 2016 @ 9:54am

    (untitled comment)

    Isn't this just saying that a website TOS just needs to add a section, a la Apple, that bad people may use the site too even though they shouldn't, and that those people might violate any of the crimes in any jurisdiction in the world?

    Wouldn't they be covered then? Of course, it would be a useless warning, but that seems to be the claim.
  • May 27th, 2016 @ 7:08am

    Re: Re: Roadside Confession

    That's dangerously bad advice. When first approached and you say "lawyer," if you later make any statements they are entirely admissible under Berghuis v Thompkins. Instead you need to affirmatively invoke your right to be silent.
  • May 26th, 2016 @ 10:01pm

    Re: First Amendment

    This is an important question that hasn't been answered, so I will.

    TL;DR - courts adjudicate laws that legislatures pass. Legislatures can't pass laws that violate the 1st amendment, so courts can't rule in ways that would allow them to.

    First, the 1st Amendment only binds Congress, so you're right, State courts aren't bound yet. But the 14th Amendment has been construed by the Supreme Court to "incorporate" parts of the first 10 amendments against the state, such that they also limit each States powers too. In this manner, the 1st Amendment applies to each State through the 14th Amendment. Additional cases conclude that political subdivisions of a State derive their power from the State, and so are also bound by the 1st (via the 14th).

    Now that we're clear that the 1st Amendment applies to all levels of government, we need to see the link to how it applies to this case. Hulk Hogan sued under a combination of legal theories, which I'll simplify by calling them them all a Privacy Law (the simplification won't matter, since they all get treated the same here anyway). The (simplified) Privacy Law says that anyone whose privacy has been violated and suffers damages may sue in court for those damages from the person who damaged them by releasing private information. Hogan's privacy was violated, and he sues. But here's how the 1st Amendment ties in, "Congress shall make no law..." says that at the outset that any law that Congress (or any State or State subdivision under the 14th) makes that abridges the freedom of speech is void ab initio as ultra vires (fancy latin for never existed and beyond their power).

    Now suppose that Congress had never passes such a law, and Hogan sues anyway. In this scenario, there is no statutory law that says he can get damages. But no, says Hogan, I'm suing under the common law theory of torts, where I can recover for actual damages from anyone who has damaged me. This part is a little more complicated as torts (injuries caused by another person) vary a lot depending on intent and the history of each state, so I'll summarize it even more. When the US first formed (including the original Confederation) we didn't have any statutory laws (they'd all been England's - ignore Louisiana as it's French, but same idea), so the judges at the time said we'll continue to use the old English Common Law, which was the law as spoken by the judges of England, and defined general duties and obligations under things like contracts, torts, land, and a few other areas. So when the constitution came around, we had a set of background principles of law we were already following, and that's what Hogan says he's suing under.

    But under this background principle we only get a default set of rules - rules to use when the legislature hasn't specified anything else. So when we pass the 1st Amendment, it supersedes any other Common Laws that don't adhere to it. Under the old Common Law theories, Hogan may have had a case, but under Common Law as amended by the 1st (and 14th) Amendments, he doesn't.

    So under statutory law (i.e. Congress shall make no law...) Hogan has to lose, and under Common Law (old English law) Hogan has to lose..... as long as the court decides that Gawker was engaged in ..."the freedom of speech..." Under current law that's almost definitely a yes, but lower level state judges tend to abdicate their obligations to rule on constitutional issues, requiring escalation through state and then federal appellate courts.

    Now you may ask, but isn't this a purely private dispute between Hogan and Gawker? It was, until Hogan asked the government to join his side. In essence, any civil lawsuit isn't really just between the two parties, but rather is one party (the plaintiff) asking the government to enforce something against the other (the respondent). The result of a lawsuit like that is having the government do something. If it were truly a purely private function then Gawker could tell Hogan to pound sand with his $100M verdict - only because Hogan can use the power of the State to enforce that verdict and seize Gawkers assets brings the 1st amendment into play.
  • May 26th, 2016 @ 1:18pm

    Re: Say it ain't so

    Rakofsky is the only counsel qualified to handle this, and somehow I'm sure they know each other.....
  • May 26th, 2016 @ 1:16pm

    Re: Re: Famous Marks

    And that's a perfect example for why any trademark on "Apache" cannot be a famous mark - because it may mean many different things (I'd recently heard someone saying that their gender identity is "an attack helicopter" and they needed to be addressed as such in New York, so that's what came to mind).

    Does this mean that common (or at least, nor uncommon) words cannot be Famous Marks? Not really, it just means that the bar is much higher for them. Google probably meets that threshold, most others do not.
  • May 26th, 2016 @ 8:07am

    Famous Marks

    I think you've misinterpreted what the judge is saying about famous marks. As I read the opinion, he's really saying that the term "Navajo" as a trademark isn't famous, while not saying anything about whether the term "Navajo" is famous as a word.

    Consider two examples: Coca Cola and Apache. Coca Cola is a famous term precisely because of the product and its trademark, and so would qualify as a famous mark (Coca Cola isn't ever used other than to identify the product/trademark). Apache, on the other hand, may refer to the people OR the helicopter. Not having looked at who owns that trademark, there are decent odds it's either the manufacturer or a tribal council. In this case, the terms use has spread far beyond the trademark, making it a non-famous mark.
  • May 9th, 2016 @ 7:40pm


    They're right, there's no principled reason why broadband providers can't provide the same throttle control that Netflix does. For $10/month they could provide unlimited bandwidth and uncapped data usage, just like Netflix, and even throw in a Nostalgia Control Panel (with Bonus Modem Connection Sounds) so you too can show your kids what the Internet was like in the 1990's. Do that, and everyone wins.
  • May 6th, 2016 @ 1:44pm


    Your analysis is flawed.

    The post under investigation didn't threaten anyone with death, let along a government agent. The comment stated that it would be good if someone else were to conspire to commit a crime - a completely protected form of speech. Speech supporting general crime, or even a specific crime is protected, unless it's likely to lead to imminent lawless action (i.e. inciting a riot) or directly threatening lawless action, even if surreptitiously (awfully nice store you have, pity if something happened to it. This post was neither, even setting aside the hyperbole expected in the forum.

    We should absolutely rally around the worst offenders, otherwise we're supporting through inaction the erosion of our liberties. If it's ok to seize the bad guys assets, and the assertion of bad guy status is all that's needed as in this example, then we're all only an assertion away from having our assets seized. There's a classic story about a man in an elevator asking a beautiful woman if she'll have sex with him for a million dollars..... the same analogy applies here if we don't protect even the unsavory in our society.

    Additionally, how is this guy obviously not innocent? Many immigrants carry very large amounts of cash as their original culture/country may not have had adequate banking to allow them to be accustomed to EFTs. What else in the story made you think the victim was not only not innocent, but "obviously not ... innocent"?
  • Apr 30th, 2016 @ 8:49pm

    Re: Re: Reasonable Billing - NOT

    This isn't really the same thing, as almost no residential user uses their full capacity all the time (my data centers, on the other hand, do average pretty close, but I pay for what I plan to use).

    ISP's advertise speed, not capacity, but build their networks based on both peak throughput and average throughput.

    Instead, you should argue here that ISPs should sell capacity but with bandwidth not artificially limited - of course then you and I would lose out as we're the super users who are saturating our connections far more than the common user.

    I'd say this is the direction the market will move, where you get network speeds (whatever they come to given your wire) and pay for transfer, since that's the function that goes into network use, much like time of use electricity rates.

    But see: Comcast.
  • Apr 30th, 2016 @ 8:40pm

    Re: Re: Reasonable Billing

    Because Comcast is well known as a good actor in the customer service field, just ask them.
  • Apr 28th, 2016 @ 7:04am

    Reasonable Billing

    There's a reasonable implementation here for Comcast, were they to choose it, and using their own statistics.

    Comcast sets the cap now at 1/(6%) of the amount that 99% of their subscribers use for each tier of paid bandwidth (Comcast is conflating number by lumping all tiers together), then force anyone with a 3 month rolling average above that into the +$50 semi-business plans.

    What does that mean?

    If you use on average 16 times more bandwidth than the 99% of users in the same bandwidth tier, you're not really buying the same product, and should pay more.

    But as 4K streaming and other services rise, so will average usage, and so necessarily will that cap. Remember, this isn't just the top 1%, these are users who are 16 times higher than the 99th percentile.

    Of course, this model wouldn't let you gouge everyone within a few years as it only deals with outlier, which is the real purpose - and it's good to see Comcast actually looking forward for once.
  • Mar 11th, 2016 @ 11:42am

    "ordered liberty"

    "Rather, it is ordered liberty vindicating the rule of law"

    This is a really great line. I've been playing Helldivers a recently, which plays on authoritarian regimes a lot, and they have another great term that this brought to mind, "managed democracy."

    We need to be clear: this isn't about liberty, this is about ordered liberty.
  • Feb 2nd, 2016 @ 2:10pm

    Re: "Modern" STBs are worthless

    I can beat that: when we cancelled Cox they said we had to bring the STB to one of their retail stores or pay for it ($99, as I recall).

    When we brought it to the store, they threw it into a dumpster with other trash, so at least some providers have figured out how to turn trash into a revenue stream.
  • Feb 2nd, 2016 @ 2:02pm

    Re: Re: "contractual freedoms"

    They really do mean contractual freedoms - the freedom to write contracts to screw their customers who don't have any choice in competitors.
  • Feb 2nd, 2016 @ 1:23pm

    Re: While I'm not aware of anyone (so far) getting killed by a swatting,

    There's no way to know that this hasn't already happened, since the headline writes itself.

    "Police save family from suicidal father"

    is exactly what would be reported in a "successful" SWATting operation, since that's what the objective view of the police would be.

    "He charged us as soon as we opened the door" said the officer, describing every person ever inside a house after the door was broken down.

    From the police perspective, this would look almost identical to an actual threat to the family, so that's how it would have been reported, and since the objective view of the police would grant immunity, we probably wouldn't even see a lawsuit.
  • Jan 27th, 2016 @ 1:55pm

    18 U.S.C. § 2259

    This is only good if 18 U.S.C. § 2259 is also enforced against the FBI, forcing the Agents to pay total damages for images of anyone they served up on the site while it was under their control. This might actually work, as the LE exceptions in the statute don't explicitly apply to this situation, and qualified immunity might not apply as well.

    Then at least the victims would be made whole, legally speaking.
  • Jan 14th, 2016 @ 12:28pm


    Twitter should join Toyota as a co-defendant too. After all, we've all seen that without all those Toyota Hilux pickups ISIS wouldn't have been successful...

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