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  • Apr 28th, 2016 @ 11:44am

    The fifth amendment

    As I mentioned in a comment in the linked ArsTechnica piece, whether this violates the Fifth Amendment is not a simple or clear question. I have written a law review article directly on this topic for I/S which is available here

    The very short version is that while the Fifth Amendment is clearly implicated, the Fifth Amendment has several nuances and exceptions. One of those exceptions is the Foregone Conclusion Doctrine. While not quite a clear cut case, this case seems to fit within that. Law Enforcement has evidence that these are his drives, that he is capable of decrypting them, and they have some idea of what at least some of the contents they will find are. Courts have upheld the use of the foregone conclusion doctrine several times, and I argue in my law review article that it is proper to use that doctrine so long as they can actually meet its requirements.

  • Jan 28th, 2016 @ 1:08pm

    Re:

    I'm afraid it is not that simple. First, the artists probably do not have the authority to give those rights. Depending on their contracts and licenses, it is more likely that the labels have the legal authority grant the rights for others to make those works.

    Second, even if the artists could and did give him the right to create these derivative works, answering the DMCA notice is not the simplest thing in the world and could increase his chance of being sued (or at least increase his perceived chance of getting sued).

  • Dec 4th, 2015 @ 10:41am

    Re: Re: Re:

    To be nitpicky, I think you mean "public disclosure of private facts". But, while related and the same facts may give rise to at least reasonable allegations of both, that is slightly different.

    Public disclosure is also a violation of privacy, but it has a few key differences. For one thing, a "false light" claim has to actually put someone in a false light. It must imply something about the person which is not true. One of the famous cases involved publishing someone's picture next to an article about someone else that stated the other person was pregnant and other facts. The article was not about the woman pictured and did not mention her by name, but by attaching her picture next to it someone could easily have believed it was her and drawn false conclusions. Public disclosure does not have any requirement that even the implications be false.

  • Dec 3rd, 2015 @ 3:50pm

    Re:

    It is important to remember that the details of false light vary from jurisdiction to jurisdiction quite a bit.

    However, I suspect that defamation is better here than false light. For one thing, in most places, false light is viewed more as an invasion of privacy than anything else. You often cannot put a public figure(think celebrity, but slightly broader) in a false light in the legal sense.

    For another thing, it seems that in order to create the false context for his words they did publish false information. That false information may not have been defamatory in and of itself, but it was vital to the harmful change in context. For all practical purposes, their information was false and there are alleged actual damages rather humiliation or unwanted exposure alone, meaning defamation fits quite well.

  • Oct 30th, 2015 @ 3:06pm

    (untitled comment)

    They need to start working in Las Vegas.

  • Oct 26th, 2015 @ 1:24pm

    Re: A bit of tilting at windmills here...

    Yes, I think the statement that companies should never review their own products is a bit overblown. I have no problem at all with employee's reviewing their company's products so long as the relationship is clearly disclosed.

    Here though, it was not disclosed (whether the employees had good reason to not disclose or not is another topic). That is a problem.

  • Oct 21st, 2015 @ 10:19am

    Re:

    I actually think Lessig would make a masterful president. He is brilliant, understands both law and technology, and is energetic and forceful. I have read several of his books and cited him repeatedly in my own academic publishing, I think he is the best candidate currently running.

  • Oct 14th, 2015 @ 11:55am

    Re:

    That is the way things were originally. If certain formalities were not observed, then there was presumptively no copyright protection.

    Personally, I think having the initial protection be automatic is actually a good thing. With that said, there is a middle ground of making that initial protection very short and requiring formalities for any longer term.

    Lessig discusses both the history and the idea of returning to an opt-in / formalities-required system in his book Free Culture.

  • Oct 13th, 2015 @ 3:21pm

    Digital Orphans Are a Massive Problem

    As you point out, digital orphans will become a massive problem. I suspect that they will not be a huge problem for purely academic researchers in a university settings. Academic research is often one of the quintessential examples of what is meant to be protected by fair use and their universities may be able to both advise them on the nuances and offer some protection in the event of a problem.

    However, as this article points out, this will be a major problem for projects that may blur the lines between pure academic research and commercial ventures though. Many documentary videos have already had to change their plans due to copyright questions, for example.

  • Sep 14th, 2015 @ 9:12am

    Re: Re: Re:

    As weird as it may sound, that does happen, especially around airports.

    If I may indulge in an anecdote, I was once travelling with a medium sized group on company business. We found it was cheaper to hire a limo that could hold us all than take two taxis. We found this because there were limos there waiting to be hailed and one of the limo drivers approached us to offer his services.

  • Aug 25th, 2015 @ 10:49am

    I don't want most of my equipment on the Internet

    There are certainly some things that benefit from being connected to the internet, but I do not need my refrigerator or most other appliances connected. It adds unnecessary complexity, and things should be kept as simple as possible.

  • May 14th, 2015 @ 10:57am

    This would be helpful

    While there are some truly valid defamation cases, it is all too often used to attempt to silence critics and intimidate other potential critics. Anti-SLAPP laws help prevent that kind of abuse, and a federal anti-SLAPP law would be particular useful given the D.C. Circuits recent ruling.

  • Apr 2nd, 2015 @ 2:14pm

    Re: (1)(A)(ii) kicks the props from under pirate sites.

    There is a difference between "actual knowledge", "red flag knowledge" (the term for the part you highlighted) for specific files, and being willfully blind to the details.

    I wrote a short paper on the topic here but the very short version is that you have to be aware of those facts or circumstances for specific infringing activity. This is very hard. Simply being aware that infringement is enough will not generally trigger that requirement. (Though this is somewhat debatable. I cite to others who believe it should in that paper.)

  • Dec 31st, 2014 @ 9:32am

    Requiring registration is unnecessary

    I vehemently disagree with the suggestion that registration should be required. There are huge amounts of content where registration would at least slow the publication process that ought to be protected by copyright, and that is to say nothing of unpublished works.

    With that said, I do agree that either the copyright term should be shortened dramatically or else that registration could be required to get an extended term of copyright after the initial automatic protection wears off.

  • Aug 13th, 2014 @ 10:12am

    It could be good with propert protections.

    I understand your objections to the concept, but there have been indications that something like this could reduce crime (including muggings for cell phones and others). This would only work if such kill switches are widespread and common, and that is best achieved by mandating them.

    Of course, some of the abuses by both hackers and potentially by authorities (not to mention the phone companies) are true risks. But the answer rather than abandoning the idea is to build in both legal and technological safe guards against its abuse.

  • Jul 25th, 2014 @ 10:03am

    9 Year old alone in park, how is that bad?

    How is leaving a 9 year old alone in a park with a cell phone bad parenting?

    Obviously, there could be context here not mentioned, but off hand I would call that fine. Most 9 year olds are more than mature enough to handle it, real crimes against children are rare, and in this case the kid had a way to call for help if she got hurt or had trouble. This sounds fine to me and the meddling parents and authorities should probably have stayed out of it unless there were other circumstances that actually made it dangerous.

  • Jun 17th, 2014 @ 10:28am

    The School's Fear Was Reasonable

    Reading only this article and not the opinion letters, I fear that those two opinions by the lawyers may not have been completely different. The college feared being sued as much as it feared losing that suit, and fair use is seen as an affirmative defense currently. Even a fair use ruling in your favor can be very expensive to acquire.

    It may be a criticism of our current copyright laws and in particulr the strength of fair use that this situation arose, but in the current state of the law the college's fear of being sued is reasonable. We may wish that a college would be prepared to accept that risk on behalf of its students to fight for their free speech, but a smaller college may not have the resources to do that.

    In short, we should be reconsidering our current copyright laws rather than blaming this school.

  • May 14th, 2014 @ 12:48pm

    Better late than never

    I have to strongly disagree with two things from this article. First, responding to customer demands is not caving. Second, correcting insanity is something to be lauded.

    Now, Mr. Geigner is quite right to say that these are things that MS should have done a long time ago, but it makes no sense to fault them for finally listening to their customers.

  • Nov 4th, 2013 @ 10:47am

    Re: DRM

    I agree with all of that, but its worth noting that there may be no fiscal cost to avoiding DRM with video games.

  • Jun 27th, 2013 @ 9:58am

    Pandora is great advertising

    Considering that almost all the music I have purchased in the past few years has been found on Pandora or at least an artist I found because of Pandora, I find it surprising that the labels aren't paying them, much as they often pay radio stations, to play more of certain songs or musicians.

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