techdescartes 's Techdirt Comments

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  • On the post: Judge Alsup Wants Uber & Waymo To Teach Him How To LiDAR Prior To Self-Driving Car Case

    techdescartes ( profile ), 30 Mar, 2017 @ 07:23am

    Re: Sounds familiar

    This is not a "special education procedure." It is a hearing, which is required by Federal Rule of Evidence 201(e) before the Court can take judicial notice (I errantly cited Rule 201(d) above):

    Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.
    If you were a party to the case, wouldn't you want an opportunity to tell the judge why he should or shouldn't take judicial notice of a particular fact? If there is a "reasonable dispute", the Court has to decline to take judicial notice.

  • On the post: Judge Alsup Wants Uber & Waymo To Teach Him How To LiDAR Prior To Self-Driving Car Case

    techdescartes ( profile ), 30 Mar, 2017 @ 07:12am

    Re: Re: With all due respect, Your Honor

    The point is that Judge Alsup learned to program in Java for the Oracle v. Google case so that he better could understand the concept of APIs. He reached the correct result, finding that Google couldn't have infringed because the Java APIs are not copyrightable. Of course, Oracle appealed and the Federal Circuit said that APIs are copyrightable. It is clear from their opinion that they wholly lack any understanding of the nature of APIs and how they might differ from copyrightable source code. The case went back to Judge Alsup to try the case over whether Google's use of the Java APIs was a "fair use" under the Copyright Act. While the result is "correct"—Google is not liable for infringement—the Court never should have had to decide the "fair use" question at all. As Mike noted at the time,

    [F]air use was the wrong vehicle. The APIs never should have been considered copyright-eligible in the first place, just as the judge in the original trial explained in his very detailed opinion. It's only because an excessively confused federal circuit appeals court mucked things up, that the case had to go back down and be redone over fair use.
    As for the phrase "bridges or muffins," that is a reference to Senator Ron Johnson's bizarre analogy about the internet being a bridge for a dozen people but used by the public. An AC responded with the following analogy:
    The internet is like a muffin with a series of pulleys attached to its gooey center. And at the end of these pulleys are antarctic monkeys eating your Cheetos. These Cheetos determine who gets what and where with the monkeys, and data makes laps around the muffin, but only two times, so it doesn't get bunched up, because there's only one muffin to do laps around. There's also a crocodile somewhere.
    Putting it all together: Judge Alsup learned the tech and ruled correctly, only to be overturned in a ruling setting precedent that APIs are copyrightable. So, maybe he shouldn't learn the tech this time and go with "bridges or muffins" to avoid any more bad precedent. As for whether my comment was intended seriously, it contained the phrase "bridges or muffins". Enough said.

  • On the post: James Comey's New Idea: An International Encryption Backdoor Partnership

    techdescartes ( profile ), 30 Mar, 2017 @ 12:15pm

    It's not a backdoor

    It's a screen door.

  • On the post: Report Says DEA Doesn't Even Know If The Billions In Cash It Seizes Is Having Any Impact On Criminal Activity

    techdescartes ( profile ), 30 Mar, 2017 @ 08:00am

    Gotta Love the Ambiguity

    Review of the Department's Oversight of Cash Seizure and Forfeiture Activities

    So when you Google "define oversight," you get two definitions:

    1. an unintentional failure to notice or do something. "he said his failure to pay for the tickets was an oversight" synonyms: mistake, error, omission, lapse, slip, blunder

    2. the action of overseeing something. "effective oversight of the financial reporting process"

    Which one are they using in the title of this report? I can't tell.

  • On the post: Real Talk About Fake News

    techdescartes ( profile ), 29 Mar, 2017 @ 08:31pm

    Re: Re: FakeNews == BigLie

    "FakeNews == BigLie" could return true or false (i.e., you're just testing for equality without disclosing a result). You must mean that "FakeNews = BigLie" (i.e., modern politicians have set the value of "FakeNews" to equal the "BigLie" used by former politicians). But then, that raises a new question. What's the data type? If it's a boolean, are you suggesting that "BigLie" is set to "true"? Or is "BigLie" set to "false"? I'm confused.

  • On the post: Judge Alsup Wants Uber & Waymo To Teach Him How To LiDAR Prior To Self-Driving Car Case

    techdescartes ( profile ), 29 Mar, 2017 @ 07:03pm

    Re: Re: Re: Sounds familiar

    No, you're overlooking that the court may judicially notice only facts that are "not subject to reasonable dispute." If there is a reasonable dispute, only the factfinder can decide that fact (usually a jury, if one has been demanded, or the court, if it is a bench trial). However, as Mark Atwood noted above, the court will be able to point to everything in this hearing as general industry knowledge and thus not an issue to fight over. It's a good strategy. One correction to my comment above: Rule 201(e) requires a hearing. Rule 201(d) states that the Court can take judicial notice "at any stage of the proceeding." There is no requirement that this wait for trial.

  • On the post: Judge Alsup Wants Uber & Waymo To Teach Him How To LiDAR Prior To Self-Driving Car Case

    techdescartes ( profile ), 29 Mar, 2017 @ 04:43pm

    Re: Re: Sounds familiar

    Alsup seems to be exceeding his judicial authority by "commanding" litigants to educate him on a technical subject.
    He isn't. Federal Rule of Evidence 201(b) permits the Court to take notice of adjudicative facts:
    (b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
    Rule 201(c) permits the Court to do this on its own initiative. Rule 201(d) requires a hearing. Rule 201(f) then allows the Court to instruct the jury that these facts are established. Excellent move by the judge.

  • On the post: Judge Alsup Wants Uber & Waymo To Teach Him How To LiDAR Prior To Self-Driving Car Case

    techdescartes ( profile ), 29 Mar, 2017 @ 03:20pm

    With all due respect, Your Honor

    The last time you educated yourself on the technology and nailed both the facts and the law, you got overturned. Feel free to make analogies to bridges and muffins, but whatever you do, don't get educated on the tech. The more right you are, the worse it gets.

  • On the post: No, You Can't Buy Congress's Internet Data, Or Anyone Else's

    techdescartes ( profile ), 29 Mar, 2017 @ 01:47pm

    Oddly Specific

    So, it may say that it has a page being viewed by a male from Texas, who was recently visiting webpages about boardgames and cow farming (to randomly choose some items).

    Since you don't specify, we just will assume that you randomly chose these items from your browser history. Using a Tor exit node in Texas.

  • On the post: Real Talk About Fake News

    techdescartes ( profile ), 29 Mar, 2017 @ 12:02pm

    "Alice" in Wonderland

    Newspapers went through "yellow journalism" a hundred years ago. And survived. Without legislation.

    Just because something happens "on a computer" doesn't mean that it's new.

  • On the post: Tell California Assembly Not To Ignore The First Amendment As It Tries To Ban Fake News

    techdescartes ( profile ), 28 Mar, 2017 @ 09:31am

    Bye-Partisan

    Furthermore, A.B. 1104 makes no exception for satire and parody, leaving The Onion and Saturday Night Live open to accusations of illegal content.

    So Chau and Trump have found common ground. Sad.

  • On the post: Broadway Play Changes Set Design Over Cafe Trademark Threat And, No, That Doesn't Make Any Damned Sense

    techdescartes ( profile ), 27 Mar, 2017 @ 08:10pm

    One Pastry to Rule Them All

    "Trolli Cannoli" apparently means "controls cannoli".

  • On the post: Court Says Posting Georgia's Official Annotated Laws Is Not Fair Use, And Thus Infringing

    techdescartes ( profile ), 27 Mar, 2017 @ 12:57pm

    Market Failure

    Plaintiffs have established the markets for the O.C.G.A. works: printed publications, CD-ROM, and subscription services. When considering Defendant's actions being performed by everyone, it is inevitable that Plaintiffs' markets would be substantially adversely impacted.

    This is where fair-use analysis gets sloppy. Yes, they may sell printed copies, but no, they haven't shown that the existence of free versions online hinder the market for printed copies. If that were true, the free version provided by Lexis Nexis already has destroyed that market. Malamud's extra copy doesn't destroy what's already been destroyed.

    People pay for printed copies because they like having a handy reference on their desk that they don't mind going out of date and needing replacing from time to time. People pay for subscription services because they want better searching tools, they want the code to cross-reference to the case law, and other factors. People order CD-ROMs because. Wait. No, they don't.

  • On the post: UK Home Secretary: I Need People Who Understand The Necessary Hashtags To Censor Bad People Online

    techdescartes ( profile ), 27 Mar, 2017 @ 11:19am

    iJabberwocky

    `Twas brillig, and the slithy toves
    Did post and upload in the cloud:
    All mimsy were the borogoves,
    And the meme raths download.

    "Beware the Jabberwock, my son!
    The files that hide, the clouds that catch!
    Beware the Twitter bird, and shun
    The frumious Instagram!"

  • On the post: Encryption Workarounds Paper Shows Why 'Going Dark' Is Not A Problem, And In Fact Is As Old As Humanity Itself

    techdescartes ( profile ), 24 Mar, 2017 @ 07:31pm

    Kudos

    Best article yet on the "problem" of going dark. Neither omniscience nor omnipotence are desirable qualities in a government.

  • On the post: Prosecutors Have Pulled Data From More Than 100 Phones Seized From Inauguration Day Protesters

    techdescartes ( profile ), 24 Mar, 2017 @ 08:19am

    LOTR Warrant

    The cell phone searches sound sketchy, especially when law enforcement has apparently acquired 100 cell phone-sized warrants or, worse, one warrant to search them all.

    If they were trying to establish probable cause to search each arrestee's residence to find and search a phone, I would agree that one "Lord of the Rings" warrant to search them all would be a problem. But in this case, these phones were all in the alleged rioters' possession at the scene of the crime. The probable cause for the search likely is the same across all of the phones: they could have been used to coordinate the riot.

    This isn't a "whatever devices we might happen to find at the location" warrant, as in the Lancaster, California case.

  • On the post: Arkansas Legislators Want To Make Corporate Whistleblowing Illegal

    techdescartes ( profile ), 21 Mar, 2017 @ 08:37pm

    Re: Re: Talking Points

    "Don't think too hard about the children."

  • On the post: Judge Decides Free Speech Is Still A Right; Dumps Prior Restraint Order Against Mattress Review Site

    techdescartes ( profile ), 21 Mar, 2017 @ 01:14pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: judges

    Are you not aware that people can see what you previously wrote? Or perhaps that was a different TechDescartes?
    Said as only one can say when they have no answer to the question put to them in the first place. Let's go back to the statement that prompted the question:
    This was a little more significant and premeditated than an innocent little "whoopsie".
    For the record, I never wrote "innocent", "little", or even "whoopsie". "Premeditated" has a negative connotation, suggesting that the judge issued the first order knowing that the defendant's First Amendment rights were being trampled. That's a serious charge. Instead of providing support for that charge, the AC responds with questions:
    "This judge issues orders with no prior thought involved?" "So let me ask you, do you have any support for the idea that this judge typically issues rulings without giving them any forethought?"
    Neither of those questions follow from the demand for evidence.

  • On the post: Judge Decides Free Speech Is Still A Right; Dumps Prior Restraint Order Against Mattress Review Site

    techdescartes ( profile ), 21 Mar, 2017 @ 01:00pm

    Re: Re: Re: Re: judges

    People who say things like this must have lived a life totally free from responsibility.
    I take it you never have realized that the entire justice system is built around fallible human beings making mistakes. That's why we have Magistrates who can be reviewed by District Court judges who can be reviewed by the Courts of Appeals who can be reviewed by the Supreme Court. As was said of the Supreme Court by Justice Robert Jackson: "We are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 443.
    "Whoops" isn't an acceptable excuse for forgetting about things like free speech and prior restraint when people's lives, livelihoods, and Constitutional rights are at stake.
    "Whoops" isn't an excuse. It's an admission of a mistake. If you read the second order, the Court doesn't offer any excuse for its first order. It just fixes it by issuing the right order the second time around. As for "people's lives, livelihoods, and Constitutional rights" being at stake, I'll give you that the First Amendment is front and center here. But I don't exactly recall anyone's life being at stake in this case, or even anyone's livelihood.

  • On the post: Arkansas Legislators Want To Make Corporate Whistleblowing Illegal

    techdescartes ( profile ), 21 Mar, 2017 @ 04:46pm

    Talking Points

    But if you hear there's a daycare three towns over where something's going on and you're sneaking in there with a video camera, that's not right.

    "Think of the children"? Check.

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