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.- IL Court: Eavesdropping Law Violates First Amendment When Used Against People Recording The Police
- Citizen Recording Of Police Proves Officer Lied About Arrest
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:- If Righthaven Declares Bankruptcy, Expect Lawyers To Go After Stephens Media, Media News, And Righthaven Principals
- Righthaven Fails To Pay Attorneys Fees Ordered By The Court, Court Asked To Declare Righthaven In Contempt
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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Hire-a-pirate is just one initiative that focuses on reducing cost to students so they can actually afford to learn something, although I would prefer to see schools adopting and helping create new open educational books which would come without risk. But since schools are not that honest at times and some do take bribes when they choose a book, this one initiative may be just the thing to counteract that state of affairs.
http://torrentfreak.com/pirate-service-makes-textbook-rentals-last-forever-110923/
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At times it appears as if the challenge is "facial", and at other times "as applied".
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But there is more to it than the procedure. Rojadirecta argues that not only were procedure and rules violated, but the procedure and rules as applied to these types of cases violate the First Amendment (the law). It is one thing to take the property of an alleged drug dealer pending the outcome of his case, and quite another to take possession of the virtual printing press allowing the defendant to exercise their free speech rights.
So to answer your question, there is both a facial and an as applied challenge being claimed here. And both the law and the actions of a federal actor are being challenged.
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Rojo still has their virtual printing press and supply of paper. You just can no longer get their "paper" on that virtual street corner, pending the outcome of the trial.
They are already losing trying to claim substantial harm. Their other first amendment claims seem very flimsy, and don't seem to acknowledge that Rojo continues to "publish" to this day. They act as if they were stopped from something, which just doesn't appear to be the case.
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Seizing one that, to carry the analogy further, serves a specific geographic region is a prior restraint on speech even if the press's owner owns another press in another region.
Your own analogy acknowledges this. And you example is still an example of a prior restraint on speech.
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It should be mentioned that the real world analogy of the government seizing ink presses went to trial before the government could seize anything.
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Ah but then you see using your analogy the USG actually DID seize the 'implement to enable content to be world viewable' ie: The Printing press.
Just because Rojo now has another DNS (Printing Press) in another jurisdiction unable to be seized by the USG, does not have any relevance whatsoever since at the instance of the seizure they only had the one DNS serving content that was actually seized. So no it was not a corner news box, it was the ONLY corner news box.
Their other first amendment claims seem very flimsy, and don't seem to acknowledge that Rojo continues to "publish" to this day.
Again irrelevant. What is happening Now has no bearing on what happened at the time of seizure.
They act as if they were stopped from something, which just doesn't appear to be the case.
Their property was seized, they had to acquire new property elsewhere to do what they were LEGALLY able to do (and yes it is legal since it has not been declared Illegal).
What part of the meaning of 'stopped' are you unfamiliar with?
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The USG took possession of the property (Rojadirecta registered domain name controlled within USA) which is the whole dispute at the moment with the argument mostly focused on due process, First Amendment, and undue influence(?).
Normally with seizure of property for the purpose of stating it is allegedly used, or could be used for criminal purposes, that property is then kept in a static pristine state (in this instance it is a set of DNS record[s] and not tangible content) until at such time it is deemed to actually be used for such purpose and then given to the state to do with what they will. Normally either sold at auction or other means to benefit/educate the public.
My question is, why is the USG not leaving it in its pristine state and is actually using the property for its own political and educational ends. Since redirecting and changing the DNS to point to somewhere else that serves govt propoganda is absolutely usage.
Wouldn't this equate to seizure under emminent domain?
Or would it be better for Puerto not to mention that and then just go the route of rei vindicatio (detinue/replevin) if their current action succeeds?
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So this is a first-time kind of thing. They're very likely screwing at least something up procedurally, but they're pushing those bounds because it benefits their cause (trying to shut down pirates) and they have an argument for doing so (even if some of us view it as a poor argument).
As for eminent domain, there have been some eminent domain cases brought by third parties to arrests where the arrestee was carrying cash, the cops classified the cash as property seized in a drug arrest, but the third parties owned the cash.
In short, these kinds of seizures are controversial and problematic, and the Roja case throws in the added confusion of domain names versus tangible property.
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"free speech trumps everything, even if it involves illegal activities".
Wasn't that easier?
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Or is it just on the say so and whim of whomever is in charge at the time allowing procedural fairness to be disposed of?
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Re: Re: Hell fits so nicely in our handbasket.
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But in this case, the government agency in charge of enforcing that requirement is the one violating it.
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This makes the seizure of Rojadirecta's domain illegal
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(And I still might have that wrong)
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This makes the seizure of Rojadirecta's domain illegal
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I am against lawyers that keep defending people who are obviously criminals except when they are defending me.
I am against fair trial, I am against due diligence and the respect for the letter of the law when it suits me, people should have their belongings seized because I want them to stop doing something I disagree with and only my views are important.
I believe American law supersedes other countries laws and judicial system but only for others because I wouldn't want to have my property seized in foreign lands because I posted a photo on Facebook that was unlawful in some part of the world.
Yes I am a dishonest prick that believes in all those things are just and fair and I would go to great lengths to say so.
That is you in a few words.
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And given all that you've stated you're against, you sound like a real prick.
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'free speech trumps everything, even if it involves illegal activities'.
Wasn't that easier?"
While you are correct, your suggested summary would be misplaced in a "favourite posts of the week" article (you did not mention a single post you liked).
I appreciate that you do understand how free speech works, but in this case the rather longish post by OP is motivated.
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I know Hugo Chaves would just love the opportunity although he already seized a lot, but he didn't touch media companies yet, maybe this will be a new global trend, lets seize everything from others that we don't agree with, that will work wonders to everybody involved.
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So when a law, or its application, comes into conflict with free speech then free speech should tend to win. As I stated in the portion about the UK police attempts to uncover journalist sources, there is a tension.
Policy-wise, I think protecting journalist sources is important and should trump free speech here. This isn't a violent crime we're talking about. Even so, this will ultimately come down to the decisions of the journalists as to what constitutes the line to cross in divulging sources. (Here it is more likely to be worth fighting than, say, in a murder case.) In short, it is a journalistic ethics consideration.
The legal protections journalists can use, however, vary greatly between the U.S. and the U.K. While the US protections are informed by the First Amendment, it would be a mistake to say UK protections of journalists in these cases is weaker. It is just different.
More importantly, there are no bright-line rules for these cases in either U.S. or U.K. law. Ultimately, sincere journalists have to be prepared and willing to sit in jail for a time. (And many are; journalistic history in both nations have numerous stories of this occurring.)
Ultimately, though, since you're less interested in discussing issues and their nuances, but wish to sum up everything into one sentence, I'll do so here:
"Serious discussion of issues here; sheep should return to Twitter to re-tweet Perez Hilton."
I hope that semi-colon didn't confuse you.
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"If you aren't impressed with all of my wordy bullshit, move along".
No semi-colon required, there is enough in your colon to make up for it.
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So here's a hint: the fire's that way ->
Go jump in it.
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So here's a hint: Sometimes it takes only a few words to say a lot. Next time read the words and what they mean.
... and the other few words is "you first".
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You are against free speech, territorial sovereignty and due diligence.
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To reiterate a comment from above, if it's protected by the First Amendment, it's not illegal behaviour. At least not until a court has determined so through a trial. Your obvious target is the Rojadirecta case, and that has yet to happen on that case.
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It would be a horrible precedent for something like Rojo to be able to hide behind the first amendment, while the site is clearly dedicated to supporting illegal activities. Would we tolerate a chat board that told people who was out of town, what their address is, which window to break in, provided them an inventory of the house and hooked them up with fences to take the merchandise? Each of those items alone might be some sort of free speech, but it is clearly supporting criminal activity (aiding and abetting). Should the first amendment trump it?
Would you extend that to any crime of "conspiracy to commit", where anyone who did the planning and set up the crime would be free to go, because their discussions are "free speech"?
The first amendment doesn't trump everything, thankfully.
"fire!" anyone?
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... No it would not. You haven't explained clearly why Roja is a site dedicated to illegal activites, merely attacked the poster. A live stream of a futbol match doesn't hurt someone. So what exactly is Roja's "crime"? Even the government has stated that Roja is not guilty of any crimes, but their site is utilized to commit them? How does that follow?
" Would we tolerate a chat board that told people who was out of town, what their address is, which window to break in, provided them an inventory of the house and hooked them up with fences to take the merchandise? "
I guess Facebook should be implicated in burglary
"Each of those items alone might be some sort of free speech, but it is clearly supporting criminal activity (aiding and abetting). Should the first amendment trump it?"
Oh by all means. Since the government doesn't like Justin.tv, Youtube, Rapidshare, Megaupload, Google Music, OCRemix, and the myriad of other portals because someone, somewhere is uploading "illegal" (hint: let's say unauthorized from now on) material that a copyright holder doesn't like.
I guess the statutory clause of copyright trumps the natural rights of the people it's supposed to protect doesn't it?
"Would you extend that to any crime of "conspiracy to commit", where anyone who did the planning and set up the crime would be free to go, because their discussions are "free speech"?"
Please define conspiracy. Not only have people sat here and called the likes of me and a few other regulars conspiracy theorists when appropriate to try to dismiss our claims, but I truly believe the conspiracy laws are beyond vague when dealing with the US government.
I'm currently checking up on "conspiracies" as defined by US law. So please, by all means... How is Roja a conspiracy when no one had heard of it (in the US) until the domain seizure?
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But let me help you address the anonymous coward's straw man arguments. The coward states:
"It would be a horrible precedent for something like Rojo to be able to hide behind the first amendment, while the site is clearly dedicated to supporting illegal activities."
Yes, it would. However, no trial has found that Rojadirecta is clearly dedicated to supporting illegal activities.
It would be even worse precedent for the government to take away your stuff without the citizen benefitting from a hearing to determine whether it should be taken away. After all, we fought this little think called the American Revolution over this idea.
Again, you also use the analogy of a message board used by burglars and those who case for burglars. Again, it would be wrong to let folks using the board in the manner to get away with it because of a First Amendment argument. I don't dispute that, nor do I ever argue for such an absurd result.
Yet, anonymous coward believes I do feel this way. Probably because anonymous coward is unwilling to debate reasonable issues in a nuanced manner but would, rather, paint the opposition as unreasonable. (Through what is called a straw man argument.)
But in his example there is still the implied assumption that there would be a trial to find these people had indeed acted in concert to case out potential targets and, thereby, aided and abetted burglars. You know, the whole guilty until proven innocent thing.
This has not occurred in the Rojadirecta case as of yet. The government took the domain names without a chance for hearing, without notice, and without a conviction of criminal acts by Roja. Perhaps the government can get a conviction, but the simple argument is that this should be required before we deprive folks of their property.
Yet the anonymous coward refuses to address this. Likely because the anonymous coward is indeed a coward.
So let's not feed the cowardly troll. The points are there, and the anonymous coward cannot bring out anything more.
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Don't you think dismissing someone as a troll is sort of the easy way out?
I think that a lawyer would be smarter than to stoop to public name calling, but that is I guess the way you do thing. I guess YOUR first amendment rights are way more important then mine, right?
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No one has censored you. You are allowed to post. Your comments are left up. You are not banned.
Even though you are clearly a troll.
Its painfully obvious that your first amendment rights are respected here. And despite your unwillingness to add anything constructive to the debate, I fully support that.
Sure, some disagree with you but that is not censorship.
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I believe it bears repeating:
"So let's not feed the cowardly troll. The points are there, and the anonymous coward cannot bring out anything more."
Meanwhile, I have some heart medication, 1000 laps, 200 Hail Maries, and a rubbing of my ears while saying "woosa!" to attend to in order to calm myself in front of the trolls.
Thanks JWN!
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So couch potato, pencil pusher that lives under a bridge, how did he inhibit your first amendment rights?
You can't be a lawyer or you are the dumbest one ever.
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The only bad precedent is the American government one, that is trully troublesome, and could lead to commercial retaliation by other countries never mind WTO or WIPO.
Other than that what was the crime exactly?
I see none.
I see people trying really really hard to make it appear like a crime to claim some sort of moral high ground that they couldn't claim otherwise.
I see dishonest people trying to subvert the law to fit their wishes and not justice.
What I see is not something that anybody should aspire for.
And that is why I support piracy with all my heart.
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Thanks for your insight, Frito Pendejo.
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Corrupt so-called Human Rights workers.
I just posted this to your mentor. Do you have an opinion on who is watching the Human Rights watchers in Ireland?
Dear Daithi,
PILA and FLAC and the so-called enlightened lawyers in Ireland are taking all Human Rights workers in the UK and the world for a ride. They cover up the corruption of SIPTU, which as you well know was once great Trade Union, founded by Jim Larkin, then named ITGWU.
No solicitor in Dublin or Human Rights body will give me a solicitor to sue Jack O’Connor, the president of SIPTU for covering up corruption. I have documentary proof that the Belfast Union officials were corrupted by the employers and persecuted, sacked and drove to their deaths Belfast Dockers by ordering them to discharge Asbestos without protection to save the employers money. See video on http://www.justicefordockers.com
At a Transparency International conference held to publicise their whistle blowers initiative, I questioned the chairman, Fintan O’Toole, and outlined that I was a whistle blower on a trade union whose officials had been corrupted and were in the pay of employers – and who had sacked me because I wouldn’t discharge Asbestos without protection. [O'Toole knew all of this as I've been writing to him at The Irish Times for years]. I then asked O’Toole on why neither he nor his paper will report on Belfast Dockers dying from Asbestosis? After a period of silence he muttered something about the Defamation Laws and called for the next speaker. Many whistle blowers weren’t happy with his answers and his attempt to shut me up, told him so but he refused to discuss it further.
John Davitt of TI intervened and stated that “this was neither the time nor the place to raise this, but that I could speak to him later over a coffee”. I strongly disagreed as did the audience of whistle-blowers but to no avail. However over the course of the meeting which was held in Boswell’s Hotell, Davitt asked many times for people to moderate their language as the event was being recorded and would be posted on their website. However, my questioning of O’Toole, the whistle-blowers disatsifaction and Davitt’s cronyism towards O’Toole was cut from the recording that was posted. SOME TRANSPARENCY.
Two days later at a conference on changes to the Defamation Laws, and attended by the creame de la creame of Dublin legal minds which had High Court Judge Peter Kelly hosting the Q&A session, I was the first speaker. You could have heard a pin drop when I said: “I tried to get myself sued for defamation by telling the truth”. I told in detail of the corruption at Belfast Docks and of my accusing Jack O’Connor many times of being corrupt and of covering up corruption – and of his promise to “sue the arse of me”, but, much to my disapointment that he’d had a change of mind when his Belfast solicitor John O’Neill of Thompson McClures informed him that what I said about his Union was indeed true.
To be fair Judge Peter Kelly gave me a lot of leeway, then he interupted asking, “Do you have a question for the panel”? I replied I did, and it was for Geraldine Kennedy, who was then editor of Irish Times. I asked her the same question I’d asked Fintan O’Toole two days previously – “why will you nor Irish Times report on the Dying Belfast Dockers”. She was dumbfounded and silence descended on the hall. Foolishly, instead of letting her stew I gave her an out by telling what had happened with Fintan O’Toole. She replied: “I haven’t seen or spoken to Fintan and cannot comment until I have, but, we must always remain within the law.
Daithi, why will no-one from the pantheon of highly educated Human Rights Greats in Dublin and Belfast revel why Human Rights are denied to ex Belfast Dockers? For the life of me this is something I cannot understand.
Monica McWilliams when still with NIHRC would not investigate Belfast Dockers dying from Asbestosis – INCREDULOUSLY , she said: “because the Trade Union which ordered them to discharge this deadly material without protection – was and still is based in Dublin”. AND to add insult to injury, Maurice Manning of the IHRC would not investigate because – LUDICROUSLY, he says that “the matters complained happened in NI which is outside the jurisdiction of IHRC”. Anyone with half an eye can see that another agenda is at work here.
Daithi, lets here you comment on this corruption – after you’ve checked it out of course – OR are you as deaf, dumb and blind as Michael Farrell, the above mentioned, Noeline Blackwell and a host of other Human Rights pretenders.
Hugh Murphy –
THERE’S MORE
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Re: Corrupt so-called Human Rights workers.
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