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  • Sep 16th, 2017 @ 9:11am

    Re: Re: Manning is not Snowden

    I read that Buzzfeed link, and I can't see what the assessment was of the diplomatic (not military/national security) cost of the release was regarding the State Department cables, because those were redacted.

    I know a guy who ended up in the Wikileaks dump because he did democracy promotion in east Africa, and he felt that, while no one was going to get killed because his name or what he was doing was out there, things the United States was trying to do to make the world a better place, was made more difficult because it became harder for the U.S. to do it without scrutiny. Now the government knows that so-and-so of the opposition is getting visited by some proxy for the U.S. government, so his house arrest will be adjusted, or more U.S. employees will be watched, so folks who aren't already on the government's radar won't meet with them.

    From a DoD standpoint, that's "no damage," because frankly an autocratic government in a country tends to be just as good if not better for helping kill threats to the U.S. than a democracy. But for values promotion, for the stuff that the U.S. does that's actually laudatory and doesn't just help our bottom line, it's a problem.

  • Sep 16th, 2017 @ 9:01am

    Re: Re:

    We do not recognize "motive" in most other cases at criminal law.

    The element of "intent" is whether someone did the criminal act on purpose, not as an accident or mistake. To the extent that some intentions are defended at law, they're specific exceptions like insanity or self-defense. There is no general "meant well" defense to intent.

    If I'm a dealer in illegal contraband, be it drugs, arms, products made from endangered species, etc., it doesn't matter to the guilty verdict whether I'm using the money to pay for an orphanage full of chemotherapy patients. Or if every endangered animal product I sell for a Third World warlord means that he lets 100 political prisoners seek refuge in a neighboring country. These are not defenses to whether I did the crime because they're not on the list.

    They should matter to sentencing, but that's not what we're talking about. We're talking about conviction.

  • Sep 12th, 2017 @ 1:16pm

    What's Wrong With Scan Ballots?

    In my Virginia municipality, you mark in dark ink on an electronically-scanned paper ballot, then feed it into the machine. The convenience of electronic counting with the security of paper ballots. What's not to like?

  • Sep 3rd, 2017 @ 7:52pm

    Re: Re: Moderation ain't free

    I get that "the issue isn't shutting down comments, it's the absurd double-talk that sites have taken to where they claim that they are shutting down comments to facilitate more conversation."

    But can I ask a question? Is there any set of facts that Al-Jazeera or other news organization could put forth where you would say, "yes, that makes sense, with those facts being true, there is more useful engagement on Facebook or Twitter than on your native commenting platform"?

  • Sep 1st, 2017 @ 9:04am

    So, doesn't actually get to the "defamation" question

    Looking over the motion to dismiss, it seems the Plaintiff sued for:
    (1) unlicensed real estate brokering
    (2) invasion of privacy
    (3) state unfair trade practices
    (4) state consumer fraud

    Which are, as the court correctly states, not really applicable to this case.

    The interesting question, which this case isn't answering (maybe another case will) is whether way-off-mark Zestimates are essentially "commercial defamation" or "slander of title" or however you want to call it.

    If Zillow had a "Superfund site Zestimator" where it, from some secret sauce, estimated the likelihood that your property was sitting on a toxic waste dump, and from bad data made people think that your backyard was full of PCBs, I believe there'd be some tort liability. The dollar value of the property is more ephemeral, less reliable, but it's in the same family of statement - the property's value is stated as less than it actually is, distorting the ability of the seller to sell at fair value.

  • Aug 30th, 2017 @ 11:26am

    That Study Still Doesn't Say What You Think It Does...

    Every time Techdirt complains about shutting down comments, it refers to its article on "Changing Deliberative Norms on News Organizations' Facebook Sites," (the study can be found at ), without mentioning that the study isn't about comment sections on news sites, but Facebook comments.

    The study basically says that "outsourcing the conversation to Facebook," as the author of this story decries, works. It's a study only of one news organization's Facebook page, and it says that interaction with Facebook commenters makes for a better community.

    As such, the study really can't speak to news organization's non-Facebook comment pages, especially when the argument is that moving the comments to Facebook isn't helpful.

    I'm not particularly invested in whether a website has comments, but it bugs me every time that this study keeps getting trotted out to say something different than what it does.

  • Jun 19th, 2017 @ 1:42pm

    Re: Re: Re: Re: Obvious Question

    Your definition of "common law" is true for basically every system of law that has judges.

    In almost any legal system, the judge determines the "meaning" of the law. It doesn't matter whether it's common or civil law, once the law gets to the judge, the judge uses his or her judgment to decide what the law covers or doesn't.

    Whoever has the last word regarding "what the law is" is the "legal god" in your parlance, be it a judge or a panel of judges or a legislature or whatever. They have the power to be wrong or petty or autocratic and there is nothing but difficult-to-employ governmental process to countermand them. Whatever system you have in mind to replace "common law" is subject to the same flaw, either because the judge does the same basic things, or because whoever replaces the judge - legislature, autocrat, panel of philosophers, etc. - will have similar ability and incentives to bias the law to favor their own power.

  • Jun 19th, 2017 @ 12:38pm

    Re: Re: Obvious Question

    That's not a good definition of "common law."

    The U.S. (except some Louisiana courts) is a common law jurisdiction, meaning cases have precedential value. The alternative, the ex-U.K. European "civil law," in theory gives the text more value than its interpretation, but in function just means that in the absence of an on-point statute, the court can't reason from analagous principles. Whether that's good or bad is a political philosophy question.

    For what it's worth, civil law jurisdictions are more likely to be socialistic bureaucracies than common law jurisdictions, so it's not like one style is more "liberating" than another.

    Anyway, there are limits to the power of common law judges, but the power of judges to issue contempt sanctions to control their own courtrooms and cases is pretty significant, and has been acknowledged as such for quite some time.

  • Jun 19th, 2017 @ 8:54am

    Re: Obvious Question

    Maximum time for contempt is jurisdiction-specific. My brief Googling on the subject says that Florida has no statutory limits; only procedural ones as contempt is an issue wholly defined by the courts themselves.

    There have been federal prosecutions where a reluctant witness (not even the accused) is jailed essentially indefinitely for contempt until he/she chooses to testify.

    And contempt's a separate offense from the main charge. If you're arrested for a crime you didn't commit, and you mouth off to the judge, your penalty for disrupting the courtroom doesn't get refunded because you shouldn't have been in court in the first place.

  • Jun 19th, 2017 @ 8:44am

    Re: Contempt of Court

    An answer you'll find unsatisfying is that it was part of the inherent power of courts at the time the Constitution was written, and Article III just says "the judicial power of the United States," not "the judicial powers to [X, Y, and Z]," unlike the limited enumerated powers of Congress in Article I, so the only limitations on traditional English judicial power circa 1789 are those spelled out in the Bill of Rights or established by federal law.

    For example, contempt does require Due Process.

  • May 5th, 2017 @ 5:19pm

    Re: Re: Re: Slander of Title - Definition

    I'm a little frustrated with your response, because to me, the argument went like:

    DB: I think "slander of title" is limited to the elements of the writ at common law.

    Me: According to modern interpretations as set forth by the Restatement, slander of title also includes what might also be called "trade libel," which I think does include this case. From brief research which I won't bore you with, I know Illinois does allow for both kinds of actions, and this kind of action has never been specifically allowed or prohibited.

    You: From my literal reading of the text of the Restatement, without reference to its interpretation over 40 years in Illinois case law, and not taking into account that the American Tort Reform Association considers Cook County, Illinois, sixth among its "judicial hellholes" where judges bend over backwards to give plaintiffs the benefit of the law, I'm going to say that your reading is obviously incorrect.

    * * *

    To simplify, given my experience in tort law (I used to sue people for money damages) and about 20 minutes with a legal database service using the skills I developed over 3 years of law school and 12 years of legal practice, I think this is a case a plaintiff could get away with, because I think a judge will reasonably find that "bad estimates" injures a person's ability to sell, which is a tort in Illinois. I think it's even more likely in Cook County, which is plaintiff-friendly.

    As a matter of "good policy" or "common sense," you may be right. But don't assume that the law is on your side.

  • May 3rd, 2017 @ 8:22pm

    Re: Slander of Title - Definition

    I think "slander of title" can be read that broadly.

    I'm operating off Restatement (Second) of Torts § 624, "Disparagement of Property—Slander of Title":
    "The rules on liability for the publication of an injurious falsehood stated in § 623A apply to the publication of a false statement disparaging another’s property rights in land, chattels or intangible things, that the publisher should recognize as likely to result in pecuniary harm to the other through the conduct of third persons in respect to the other’s interests in the property."

    This folds in both the traditional "fake lien" tort and all sorts of commercial disparagement, such as Bose Corp. v. Consumers Union, 466 U.S. 485 (1984), where but for the NY Times v. Sullivan malice test saying something false about the way a speaker sounded was actionable.

    I think "our special appraisal system considers the property to be X," where X is lower than the value of the property, is sufficiently disparaging to the interest in property to match.

    I can tell you because I searched that there is no case on point in Illinois, but they do accept the Restatement.

    As for substantial factor, yes, whether or not the statement is protected opinion would be first analyzed, but there was a separate question raised in the article that, even if it was defamatory, damages couldn't be proved. I think they might be.

  • May 2nd, 2017 @ 5:59pm

    Slander of Title

    I think the snark is off base. This should be a "I can't believe the law actually allows this" angry article on Techdirt, not a "lawyer doesn't know the law" article.

    The complaint doesn't come out and use the archaic term, but the argument fits into an old, separate tort called "slander of title," which is just as it sounds -- saying that a property is worth less than it actually is.

    Furthermore, the causation argument may be tenuous, but it's not as tenuous as Tim Cushing makes it out. Illinois accepts "substantial factor" tort causation, so the Zillow estimate need not be THE cause of any drop in price, just a "substantial" cause among many. We can argue back and forth about what evidence could support such a finding, but at the pleadings stage, one can't disprove substantial factor causation, and if a suit gets to discovery, it's far less ridiculous.

    I don't know how the suit will eventually shake out, but at the outset, it seems like it actually pleads a real cause of action.

  • Apr 21st, 2017 @ 1:40pm

    Re: Waiver vs Assignment

    According to the article, moral rights can't be assigned under VARA.

  • Apr 7th, 2017 @ 3:25pm

    Re: Re: In New York, the Supreme Court

    Agreed, it is a Court of Appeals decision, but it makes everyone dumber for the article to say "Supreme Court," because that's not the correct court.

  • Dec 28th, 2016 @ 1:12pm

    Re: Stop using that study without caveat.

    -putting it on Facebook. Couldn't finish my thought. Sorry!

  • Dec 28th, 2016 @ 1:12pm

    Stop using that study without caveat.

    The author keeps saying in these articles, "Facebook isn't as good as a comments section," but for the study that's evidence that comment sections work, it's a cite to a news organization that already shunted its comment section to Facebook. Here's the study method (

    "We partnered with a local television news station with a vibrant Facebook community to conduct a field study. The station was an affiliate of a major television network in a top-50 Designated Market Area. Over 40,000 people had liked the station's Facebook page. The study took place between December 2012 and April 2013. As part of the study, members of the newsroom would post a political story on Facebook each day and then vary their engagement with commenters according to a randomized schedule."

    I have other concerns about the study (there's no evidence that the lessons are scalable to sites with millions of daily pageviews, I don't think it's been replicated, etc.), but let's start with the fact that it's already about killing your comments section and putting it on

  • Dec 23rd, 2016 @ 12:28pm

    What are the terms?

    Would really love to know whether the company is going to change its practices in the future under this settlement or if the plaintiff and her lawyers are just getting paid to go away.

  • Aug 31st, 2016 @ 11:22am

    Re: Re: Target Effect of Fla. Shield Law

    Legally, you're correct. The lawsuit doesn't and can't change the Fla. reporter shield law.

    I was referring to two things, clearly less than eloquently:

    1) Since there's a journalist shield law, the player can't file a "John Doe" suit against the leaker and subpoena ESPN or the reporter for his or her name. Any legal method of investigation to try to get around this might fail.

    2) More speculatively, a way to get around the inability to subpoena is to file a Hulk Hogan-style privacy case. The player still can't legally compel ESPN or the reporter to disclose the names, but, with the threat of tort damages, the player can make ESPN "an offer it can't refuse": what's more important, a couple million worth of damages and legal fees, or a source who admittedly stole some medical records?

    This might be a couple months down the line, possibly at summary judgment, when the parties have a more solid view of their relative positions.

  • Aug 31st, 2016 @ 7:08am

    Target Effect of Fla. Shield Law

    With regard to "why is the player suing ESPN," I notice that Fla. has a journalist shield law.

    Which means, basically, that the most direct option for figuring out who gave up the file, asking the reporter via subpoena, is out. It's theoretically possible to find the leaker's identity through other means, but none are guaranteed.

    So, if you're the player and you want someone to be held responsible, you sue ESPN. Either A) you win a bunch of money, or B) you get, as a condition of settlement, ESPN to narc out its source so you can chase after him.

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