Re: Elsevier supports content mining, contra your salacious headline
As I mentioned in the comment thread to the original blog post, the reason that we require miners to use our API is so that we can meet their needs AND ALSO the needs of our human users.
Could you explain in what way the access described in this scenario (data transfer amounting to 35 KB / second, sustained over a week and a half) in any way serves to prevent you from meeting the needs of the human users?
> This isn't free speech, this is hate speech and should be addressed as such.
This is probably late enough that no one will ever read it, but I want to counter this unfortunately common misreading.
"Hate speech", as conceived of, is a type of speech: speech with hateful intent, or speech conceived out of hate of the things spoken about, or any of several other possible definitions (people seem to use different ones depending on the occasion).
"Free speech" is not a type of speech. "Free speech" - put at its simplest, and ignoring all the nuance and detail which go into the law surrounding it - is the freedom to speak.
Put concisely: "hate speech" is something which you say, but "free speech" is something which you have.
Saying "it's not free speech, it's hate speech" is comparing apples to oranges.
If you'll recall, Napster (or the company and some product by that name, at least) was eventually transformed - by court order and at the behest of the music industry - into a legitimate service, with payment required rather than being the freewheeling sharing market it had originally been.
That service is still technically around today, as a streaming service under the umbrella of Rhapsody (having changed hands at least twice), but it has not exactly been a resounding success. (As witness the fact that until I went to look it up, I honestly thought it had flopped in the market and sunk without a trace.)
I strongly suspect that the RIAA, et al., remember this experience - and that the relative failure of working-with-them payment-required Napster is why they don't bother trying to partner with newer services and transform them into cooperative, fully-legal ventures; from their perspective, it probably looks like they already tried that, and it didn't work at all.
Note for those with computer-hardware backgrounds who may be confused reading this, as I briefly was: "nm" here appears to be short for "nautical miles", not "nanometers".
Re: Went looking for past stories about PRS, found a story from 2010 with 615 comments
The really weird thing is that there's a comment near the end of that page (in threaded mode) which at least appears to be by out_of_the_blue, but which - as far as I could see at a glance - says something entirely reasonable about copyright.
To be fair, there is some modicum of merit to the "likelihood of confusion" claims in this and similar cases.
The logic runs roughly as follows:
Bands and other famous entities often enter into endorsement deals for the promotion of unrelated products, which turn on associating the band or entity's name with the thing being endorsed.
Some such endorsement deals go so far as to name (or rename) the unrelated product being endorsed after the band or other famous entity.
The public is aware of this pattern, and knows that when they see the name of a famous entity on an unrelated product, it tends to mean that that entity has endorsed that product.
Therefore, for an unrelated product to take the same name as that of a famous entity introduces the likelihood of the public being confused into thinking that such an endorsement deal has taken place, and that the famous entity is endorsing the unrelated product, even when the entity in question is not in the same line of business as the unrelated product.
Of course, to allow this line of reasoning to prevail would completely eliminate the principle that a trademark only applies within a given field of business - or, even worse, would eliminate it only for famous trademarks, while those of less-successful brands would still have the lesser reach...
I think the first paragraph you quoted is saying not that "all future copyright-trolling cases in Australia must go before this judge" (or similar), but that "if DBC does make its promises and post its bond and go forward with sending these threats, any follow-up suits which it then files against the recipients of those threats must go before this judge".
Other than that, an insightful and informative post; thank you for posting it.
The logic of a "do what I tell you, not what you think I mean" search engine would indicate that they're supposed to return no search results, because they don't have any results that match what you actually searched for.
That might not be the most useful thing to do in real-world practice, but it's the most internally consistent from the perspective of the "principle of least surprise", at least.
No, the sentence is valid; it's just using some slightly unintuitive grouping.
Combined with the previous sentence, it's saying:
"From their bulk surveillance programs, and from their use of intercepts that gather everything before searching the data haul for incriminating material or useful intel, it's clearly evident that these agencies are wholly unconcerned about collateral damage."
The use of the term "TPM" in some of the quotes in the article would seem to carry the implication that these systems will only run software which they consider "trusted", i.e., which is signed by a key which they recognize. Unless a way to add your own keys to the TPM is provided, this would seem to mean that any way of getting your software to run on that hardware would constitute circumvention of access protections, and thus a DMCA violation.
I'm Linux-only (except as required by work), and have been since... maybe 2002? Hard to recall the exact dates1998, I think. Switched over cold-turkey from Win98SE, having rejected XP, and have never regretted it.
This map is very interesting, but if I'm reading the background to this right, it's only half of the story.
How much area did Verizon's "100% coverage" promises actually include? I get the impression that those were made to specific states, and would have extended to only those states even if fulfilled to the letter.
This map would be nicely complemented by another one showing what the coverage would look like if Verizon had, in fact, fulfilled all of the commitments they made before receiving funding et cetera.
Unless that map would just be "solid red across every state", of course, in which case an explicit statement that Verizon really did promise 100% fiber coverage everywhere would be enough.
But that would be because the prosecutor presented it as if it were true, not because the prosecutor presented it at all.
If the prosecutor had presented both the evidence that the thing is true and the clear and confusing evidence to the contrary, I would not call that "presenting it as if it is true", and I would not see a problem with it - at least not without further aggravating circumstances.
With the evidence in both directions presented, the grand jury could draw its own conclusions from that evidence - and if they conclude that the thing is true, then the evidence otherwise must not really have been quite so clear and conclusive, after all.
Now, I'm not saying that the prosecutor has to present the evidence in both directions, in that way - only that there's nothing inherently wrong with doing so.
There would, however, be something inherently wrong with presenting only evidence indicating that the thing is true, and not the clear and conclusive evidence that it is not.
This becomes an issue when the evidence is not so clear and conclusive in either direction, and a judgment call needs to be made - and, presumably, that's much of the point of having a trial or a grand-jury presentment in the first place.
To require the prosecutor to make that judgment call, so that the grand jury is presented only with the evidence for one conclusion, is to risk having the grand jury be presented only with the evidence for the conclusion which is not true - when the prosecutor was in possession of evidence to the contrary, and simply chose not to present it, not out of an intent towards falsehood but because the prosecutor believed it was false.
If the prosecutor instead has the option to present both the evidence for and the evidence against - even when that evidence includes contradictory testimony, in which some witnesses must be lying - and let the grand jury draw their own conclusions, that seems to me to be a good thing.
But if the prosecutor makes that call, and doesn't present the evidence (including witness testimony) which would contradict that conclusion to the grand jury, then how can the grand jury be expected to make its own determination? It is then working from incomplete evidence, even more than the prosecutor was.
I see your point on the first one, but I disagree on the second - or, rather, I don't agree that knowingly presenting witnesses who contradict one another is the same thing as knowingly lying in court.
Surely the cause of helping the court to determine truth is better served by presenting multiple sides of the story, which the court (read: grand jury) can then judge for itself, rather than pre-determining which side (or amalgam thereof) you think is the truth and only presenting that one?
In the trial which results if there is an indictment, this goal is purportedly served by the adversarial process, in which the prosecution presents one side and the defense presents another (and, possibly, amici curiae present yet others). But in the grand jury there is no defense, there is only the prosecution - so if multiple sides are to be presented for the grand jury to consider in determining truth, it is the prosecution which must present them.
But in a grand-jury presentation, there is no defense; it's just the prosecution, attempting to make the case that there's enough evidence and enough cause for an indictment.
I don't see a substantive difference between "presenting a witness whose testimony runs counter to the narrative which the prosecutor thinks is the truth" and "presenting a witness whom the prosecutor knows is lying". In either case, deciding not to present such a witness results in one side being left out, based entirely on the prosecutor's judgment about what the actual truth is - and no matter what evidence the prosecutor is working from, the prosecutor can be wrong about what the truth is. (Otherwise, there would generally be no point in having the trial, much less the grand-jury presentation.)
There's nothing inherently wrong with a policy of never presenting such witnesses at the grand-jury stage, and leaving the presentment of such contradictory evidence to the actual trial - although I suspect that that approach might be part of what leads to the "a prosecutor can get a grand jury to indict a ham sandwich" scenario, simply because the grand jury's decision is made based entirely on the evidence which is favorable to the prosecutor's version of events.
But there also wouldn't be anything inherently wrong with a policy of routinely presenting such witnesses at the grand-jury stage, without taking a position as to which ones are correct/honest, and leaving that question up to the members of the grand jury rather than to the prosecutor - in much the same way the members of a petit jury are the "finders of fact" in a jury trial.
The latter approach would almost certainly decrease the number of convictions achieved, by reducing the number of cases which actually make it to the point of a trial; it might therefore be argued to also decrease justice, although that could probably be disputed. The trade-off, however, is that it would also avoid the costs - both to the state (i.e. the taxpayer), and to the defendants - involved in the trials which end up not happening.
The problem - and the room for accusations of prosecutorial misconduct - arises when the decision of whether to present such witnesses is made selectively, rather than being a matter of routine. That can lead, as in this case it apparently has, to the perception that the prosecutor makes that decision based on whether or not they actually want to get an indictment. It's akin, in a certain sense, to the reasons why "selective prosecution" is a problem and a thing.
Essentially, my argument is that it is ultimately not possible for the prosecution to "know" that a given witness's testimony is false, much less that that witness is lying rather than being mistaken; it is only possible for the prosecution to believe that the testimony is false.
Yes, if the prosecution were to somehow "know" that a given witness is lying (or that a given piece of non-testimonial evidence has been faked), then everything you say would hold true. I simply don't see how it can be possible to have that level of certainty about what the truth is, while still having little enough certainty that there's actually a need for a trial in the first place.
The issue of the truth, falsehood, or even applicability of a given piece of evidence or testimony is ultimately a judgment call. The question is, to whom do we want to give the power to make that call, at the grand-jury stage: the prosecutor, or the grand jury?
It's because I see it not as intentionally misleading the jury, but as intentionally presenting the jury with additional information to use to make their decision - both the different view presented by the contradictory testimony, and with the fact that there is contradictory testimony.
The prosecutor may believe they know which witness is telling the truth, but they may be wrong. Which is better, from the perspective of achieving justice: for the prosecutor to present only the witnesses which support their preferred narrative, or for the prosecutor to present both sets of witnesses and let the jury decide?
Now, there may be other reasons why presenting witnesses who run contrary to the prosecution's narrative would not be the best idea in a grand jury presentation. But that doesn't mean that there's necessarily something inherently wrong with doing so - only that those other reasons may trump in some cases.
Even there, if you do it as part of presenting a larger picture on which the jury can draw their own conclusions, I think that could be a potentially reasonable thing to do. (After all, do you necessarily know which of the witnesses are lying?)
The trouble arises when it's only done for a special occasion, rather than as a routine prosecutorial tactic.
There's also the fact that knowingly false testimony was introduced by the prosecution. Bob McCulloch's long-winded post-no bill statement mentioned the contradictory testimony given by several witnesses, indicating he knew he was putting liars on the stand (so to speak).
Just to note, on this point: I don't see anything inherently wrong with knowingly presenting witnesses whose testimony contradicts one another on the stand before a grand jury, even when that means that some of the witnesses are lying rather than being merely mistaken. After all, the very fact that the testimony of some witnesses contradicts that of others is evidence for the jury to consider.
That's only speaking in principle, however, about grand jury presentations in general. If - as seems highly likely - the prosecutor would not have allowed such contradictory witnesses to appear before the grand jury in an ordinary case, then the fact that he did do so in this highly unusual case could indeed at least potentially constitute prosecutorial misconduct.
On the post: Elsevier Says Downloading And Content-Mining Licensed Copies Of Research Papers 'Could Be Considered' Stealing
Re: Elsevier supports content mining, contra your salacious headline
Could you explain in what way the access described in this scenario (data transfer amounting to 35 KB / second, sustained over a week and a half) in any way serves to prevent you from meeting the needs of the human users?
On the post: Social Media 'Terrorist' Taken Down By FBI After Reblogging A Pro-ISIS GIF
Re: Re: Did he hurt anyone?
This is probably late enough that no one will ever read it, but I want to counter this unfortunately common misreading.
"Hate speech", as conceived of, is a type of speech: speech with hateful intent, or speech conceived out of hate of the things spoken about, or any of several other possible definitions (people seem to use different ones depending on the occasion).
"Free speech" is not a type of speech. "Free speech" - put at its simplest, and ignoring all the nuance and detail which go into the law surrounding it - is the freedom to speak.
Put concisely: "hate speech" is something which you say, but "free speech" is something which you have.
Saying "it's not free speech, it's hate speech" is comparing apples to oranges.
On the post: MPAA Whacs A Few More Moles, Declares Premature Victory While Making Movie Fans Worse Off
Re: Re: The hydra has already awakened
That service is still technically around today, as a streaming service under the umbrella of Rhapsody (having changed hands at least twice), but it has not exactly been a resounding success. (As witness the fact that until I went to look it up, I honestly thought it had flopped in the market and sunk without a trace.)
I strongly suspect that the RIAA, et al., remember this experience - and that the relative failure of working-with-them payment-required Napster is why they don't bother trying to partner with newer services and transform them into cooperative, fully-legal ventures; from their perspective, it probably looks like they already tried that, and it didn't work at all.
On the post: Reports: Department Of Transportation To Require All Drones Be Registered
Re: Re: Re: Re: Depends what "drone" is
On the post: PRS To Increase Members' Fees To Fund Legal Expedition Against TV Station
Re: Went looking for past stories about PRS, found a story from 2010 with 615 comments
On the post: LMFAO, The Band, Sends Cease And Desist Over LMFAO, The Beer
The logic runs roughly as follows:
Bands and other famous entities often enter into endorsement deals for the promotion of unrelated products, which turn on associating the band or entity's name with the thing being endorsed.
Some such endorsement deals go so far as to name (or rename) the unrelated product being endorsed after the band or other famous entity.
The public is aware of this pattern, and knows that when they see the name of a famous entity on an unrelated product, it tends to mean that that entity has endorsed that product.
Therefore, for an unrelated product to take the same name as that of a famous entity introduces the likelihood of the public being confused into thinking that such an endorsement deal has taken place, and that the famous entity is endorsing the unrelated product, even when the entity in question is not in the same line of business as the unrelated product.
Of course, to allow this line of reasoning to prevail would completely eliminate the principle that a trademark only applies within a given field of business - or, even worse, would eliminate it only for famous trademarks, while those of less-successful brands would still have the lesser reach...
On the post: Australian Court Rejects Dallas Buyers Club Copyright Trolling Demands
Re:
I think the first paragraph you quoted is saying not that "all future copyright-trolling cases in Australia must go before this judge" (or similar), but that "if DBC does make its promises and post its bond and go forward with sending these threats, any follow-up suits which it then files against the recipients of those threats must go before this judge".
Other than that, an insightful and informative post; thank you for posting it.
On the post: 9th Circuit: Amazon's Search Results Too Useful, Must Be Trademark Infringement
Re: Re: annoyed
That might not be the most useful thing to do in real-world practice, but it's the most internally consistent from the perspective of the "principle of least surprise", at least.
On the post: Dept. Of Defense Defends Strong Encryption While Its Impetuous Child -- The NSA -- Continues To Lament The Coming Darkness
Re: Re: Re: Bad sentence
On the post: Dept. Of Defense Defends Strong Encryption While Its Impetuous Child -- The NSA -- Continues To Lament The Coming Darkness
Re: Bad sentence
Combined with the previous sentence, it's saying:
"From their bulk surveillance programs, and from their use of intercepts that gather everything before searching the data haul for incriminating material or useful intel, it's clearly evident that these agencies are wholly unconcerned about collateral damage."
On the post: GM Says That While You May Own Your Car, It Owns The Software In It, Thanks To Copyright
Re: Open Source?
On the post: Daily Deal: Linux Learner Bundle
Re: Reading Techdirt right now on a Linux box?
On the post: What Billions In Subsidies Bought: The Final Map Of Verizon's FiOS Fiber
Actual vs. target
How much area did Verizon's "100% coverage" promises actually include? I get the impression that those were made to specific states, and would have extended to only those states even if fulfilled to the letter.
This map would be nicely complemented by another one showing what the coverage would look like if Verizon had, in fact, fulfilled all of the commitments they made before receiving funding et cetera.
Unless that map would just be "solid red across every state", of course, in which case an explicit statement that Verizon really did promise 100% fiber coverage everywhere would be enough.
On the post: Advocacy Group Files Misconduct Complaint Against Ferguson Prosecutors
Re: Re: Re: Re: Re: Re: Re: Re:
But that would be because the prosecutor presented it as if it were true, not because the prosecutor presented it at all.
If the prosecutor had presented both the evidence that the thing is true and the clear and confusing evidence to the contrary, I would not call that "presenting it as if it is true", and I would not see a problem with it - at least not without further aggravating circumstances.
With the evidence in both directions presented, the grand jury could draw its own conclusions from that evidence - and if they conclude that the thing is true, then the evidence otherwise must not really have been quite so clear and conclusive, after all.
Now, I'm not saying that the prosecutor has to present the evidence in both directions, in that way - only that there's nothing inherently wrong with doing so.
There would, however, be something inherently wrong with presenting only evidence indicating that the thing is true, and not the clear and conclusive evidence that it is not.
This becomes an issue when the evidence is not so clear and conclusive in either direction, and a judgment call needs to be made - and, presumably, that's much of the point of having a trial or a grand-jury presentment in the first place.
To require the prosecutor to make that judgment call, so that the grand jury is presented only with the evidence for one conclusion, is to risk having the grand jury be presented only with the evidence for the conclusion which is not true - when the prosecutor was in possession of evidence to the contrary, and simply chose not to present it, not out of an intent towards falsehood but because the prosecutor believed it was false.
If the prosecutor instead has the option to present both the evidence for and the evidence against - even when that evidence includes contradictory testimony, in which some witnesses must be lying - and let the grand jury draw their own conclusions, that seems to me to be a good thing.
On the post: Advocacy Group Files Misconduct Complaint Against Ferguson Prosecutors
Re: Re: Re: Re: Re: Re: Re: Re:
On the post: Advocacy Group Files Misconduct Complaint Against Ferguson Prosecutors
Re: Re: Re: Re: Re: Re: Re: Re:
Surely the cause of helping the court to determine truth is better served by presenting multiple sides of the story, which the court (read: grand jury) can then judge for itself, rather than pre-determining which side (or amalgam thereof) you think is the truth and only presenting that one?
In the trial which results if there is an indictment, this goal is purportedly served by the adversarial process, in which the prosecution presents one side and the defense presents another (and, possibly, amici curiae present yet others). But in the grand jury there is no defense, there is only the prosecution - so if multiple sides are to be presented for the grand jury to consider in determining truth, it is the prosecution which must present them.
On the post: Advocacy Group Files Misconduct Complaint Against Ferguson Prosecutors
Re: Re: Re: Re: Re: Re:
I don't see a substantive difference between "presenting a witness whose testimony runs counter to the narrative which the prosecutor thinks is the truth" and "presenting a witness whom the prosecutor knows is lying". In either case, deciding not to present such a witness results in one side being left out, based entirely on the prosecutor's judgment about what the actual truth is - and no matter what evidence the prosecutor is working from, the prosecutor can be wrong about what the truth is. (Otherwise, there would generally be no point in having the trial, much less the grand-jury presentation.)
There's nothing inherently wrong with a policy of never presenting such witnesses at the grand-jury stage, and leaving the presentment of such contradictory evidence to the actual trial - although I suspect that that approach might be part of what leads to the "a prosecutor can get a grand jury to indict a ham sandwich" scenario, simply because the grand jury's decision is made based entirely on the evidence which is favorable to the prosecutor's version of events.
But there also wouldn't be anything inherently wrong with a policy of routinely presenting such witnesses at the grand-jury stage, without taking a position as to which ones are correct/honest, and leaving that question up to the members of the grand jury rather than to the prosecutor - in much the same way the members of a petit jury are the "finders of fact" in a jury trial.
The latter approach would almost certainly decrease the number of convictions achieved, by reducing the number of cases which actually make it to the point of a trial; it might therefore be argued to also decrease justice, although that could probably be disputed. The trade-off, however, is that it would also avoid the costs - both to the state (i.e. the taxpayer), and to the defendants - involved in the trials which end up not happening.
The problem - and the room for accusations of prosecutorial misconduct - arises when the decision of whether to present such witnesses is made selectively, rather than being a matter of routine. That can lead, as in this case it apparently has, to the perception that the prosecutor makes that decision based on whether or not they actually want to get an indictment. It's akin, in a certain sense, to the reasons why "selective prosecution" is a problem and a thing.
Essentially, my argument is that it is ultimately not possible for the prosecution to "know" that a given witness's testimony is false, much less that that witness is lying rather than being mistaken; it is only possible for the prosecution to believe that the testimony is false.
Yes, if the prosecution were to somehow "know" that a given witness is lying (or that a given piece of non-testimonial evidence has been faked), then everything you say would hold true. I simply don't see how it can be possible to have that level of certainty about what the truth is, while still having little enough certainty that there's actually a need for a trial in the first place.
The issue of the truth, falsehood, or even applicability of a given piece of evidence or testimony is ultimately a judgment call. The question is, to whom do we want to give the power to make that call, at the grand-jury stage: the prosecutor, or the grand jury?
On the post: Advocacy Group Files Misconduct Complaint Against Ferguson Prosecutors
Re: Re: Re: Re:
The prosecutor may believe they know which witness is telling the truth, but they may be wrong. Which is better, from the perspective of achieving justice: for the prosecutor to present only the witnesses which support their preferred narrative, or for the prosecutor to present both sets of witnesses and let the jury decide?
Now, there may be other reasons why presenting witnesses who run contrary to the prosecution's narrative would not be the best idea in a grand jury presentation. But that doesn't mean that there's necessarily something inherently wrong with doing so - only that those other reasons may trump in some cases.
On the post: Advocacy Group Files Misconduct Complaint Against Ferguson Prosecutors
Re: Re:
The trouble arises when it's only done for a special occasion, rather than as a routine prosecutorial tactic.
On the post: Advocacy Group Files Misconduct Complaint Against Ferguson Prosecutors
That's only speaking in principle, however, about grand jury presentations in general. If - as seems highly likely - the prosecutor would not have allowed such contradictory witnesses to appear before the grand jury in an ordinary case, then the fact that he did do so in this highly unusual case could indeed at least potentially constitute prosecutorial misconduct.
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