The legal systems of the world have evolved slowly over literally thousands of years -- with a great deal of cultural inertia but also managing to borrow ideas from each other and improve over time. Nearly all of them (from the Catholic Church's Canon law to the legal system in the US) incorporate a basic approach that works roughly like this:
(1) both sides present their case
(2) someone decides
(3) there is an "appeals" process where one (or more) layers can review the decisions for fairness
Maybe those companies (Facebook, Twitter, etc) trying to set up a review system should take inspiration from this deep historical source.
Simple way to change Trump's position on Forfeiture
All it would take is ONE brave law enforcement officer willing to end his/her career and we could easily flip Trump's position on this issue. If a single officer seized any property belonging to Mr. Trump himself I feel confident that the President would go on the warpath against asset forfeiture.
I think Mike Masnick is reading too much into the FBI's statement. Last time they tried this they made masterful use of public opinion: picking a terrorism case, one in which large numbers of Americans had been killed and there was a colorable (if not quite plausible) argument that the phone might lead to other terrorists.
In this case they would be investigating police misconduct (a case guaranteed to put the public more on edge than, say, a terrorism case). The only people who would feel "threatened" by this case are those minorities who worry about getting shot by the police -- not the most supportive group. And there is no colorable argument that the victim's cell phone might lead to knowledge that would protect lives; at best it might help to exonerate the murderer.
Furthermore, the previous case is still relatively fresh in the minds of citizens and legislators, including the resolution of that case (turned out the FBI was making a mountain out of a molehill, could resolve it without Apple's help, and that the phone didn't reveal any helpful information after all).
I don't believe the FBI is foolish enough to press this case in court.
As long as we're talking about the decline and destruction of news sources due to lack of revenue, or because that revenue source wasn't ACTUALLY tied to producing the news, I thought I'd leave you all with this link: https://rtb.techdirt.com
After all, the web page http://www.governo.it/il-governo has for YEARS been mocking me. Many have said that the site has absolutely nothing to do with me, but in fact I am STRONGLY INSULTED by the subtle implications it makes about me (without actually naming me).
None of my previous attempts to get the site shut down have gone anywhere, but now that we have a law which is driven by *my feelings of personal insult* (rather than some "objective" test like falsity or actually mentioning me by name) I should be able to force them to take the page down.
> Waving another countries flag around on another countries soil in a protest is a legitimate act of war
No it isn't. Shooting or bombing citizens as a political protest may be an act of war; waving a flag (any flag) is a form of speech, protected by the first amendment.
Where is Congress in this? I know most everything is partisan in Washington these days, but regardless of whether you are for or against protecting those who sexually exploit young boys, surely the members of Congress realize that if people are retaliated against for providing information to members of Congress that there will be no one willing to share information with them.
Congress should exercise it's constitutional duty of oversight and should use that to pressure and embarrass those members of the military leadership who allowed this persecution to take place. It should do so for the sake of its own power, even if they can think of no *other* reason.
> And, given that it's usually a prosecutor talking to the court, then it's the prosecutor who's perjuring [him/her]self, in talking about what the cops did.
False. The prosecutor is NOT under oath, and cannot commit perjury. The prosecutor must call witnesses who will explain (under oath) to the judge and jury what happened. Police officers spend a not-negligible amount of their time testifying in court.
> And that constitutes conspiracy after the fact.
No, it doesn't. For one thing, prosecutors have a thing called "absolute immunity". It means that they can't be prosecuted (or sued) for doing their job (prosecuting cases in court), not even if they lie, cheat, and break every rule. There are a FEW specialized exceptions (but VERY few) and I seriously doubt that "conspiring with the police" would qualify.
I'm not saying this is a GOOD thing, but it is how the US legal system works today.
> You'll recall that AT&T fought tooth and nail against [..X..]. Now AT&T's trying to argue that it's that [..X..] means [..something in its favor..].
That is a very reasonable and consistent position to take. One may believe that certain rules apply, but if they don't, then at least the other rules apply.
(The part where they say that the other rules apply retroactively is an interesting and creative approach. I wonder whether they believe that the FTC's lack of jurisdiction in the past is paired with the FCC having jurisdiction over AT&T's past behavior. Somehow I doubt it.)
Somehow, in your article you failed to point out the other interesting hypocrisy that NY Times article described. They interviewed parents who said they had reported the rampant sexting to the schools and had been told "there is nothing we can do". To go directly from refusing to act to overreacting is rank incompetence.
Since these works were already in the public domain, I am sure that many derivative works have already been created based on them. I wonder whether anyone with knowledge of the newly passed law can comment on how it affects these already-existing derivative works.
Despite my skepticism about Mr. Brandis' policies, I am pleased to hear him endorse such a progressive and forward-looking proposal as this one to include an economic analysis for all proposed changes to intellectual property law.
Obviously economic impact cannot be the sole determinant as there are many other factors at work such as moral rights and freedom of expression, but economic impact ought to be one component of the consideration.
Of course any economic analysis must consider ALL of the economic impacts. When considering a law to regulate scrap metal one it would be totally absurd to consider the economic impact on scrap dealers without also considering the impact on those who create metal waste and those who consume recycled scrap metal. Without that, the economic analysis could only suggest changes that would increase the cost of recycled metal, decrease the cost of scrap, and increase the volume of metal recycled -- regardless of the harm it did to other parts of the economy. We would pass laws requiring every citizen possessing even a scrap of metal to deliver it for free to a licensed scrap metal dealer.
Similarly, when we consider the economic impact, we must include the impact on companies and people who would otherwise utilize fair use exceptions or would make use of public domain materials if copyright laws were not in place. I think any honest evaluation of the economic impact of these factors might prove quite a surprise to Mr. Brandis.
The definition of "customer" can be a bit murky in some cases, but here the inmate (or her family) are the ones who PAY, while the prison are the ones who DECIDE whether or not JPay gets the business. The ones that JPay are most likely to work to keep happy are those who do the deciding -- the prison officials. It is not unlike medical insurance in the US, where (except for those on government programs) the employee is the supposed "customer" but it is the employer who actually DECIDES which insurance to purchase.
All that being said, however, I don't see any indications that JPay is ignoring the well-being of prisoners and their families in the single-minded pursuit of pleasing prison officials. Even if it WOULD be in their best interest, I see much the opposite. I see JPay reacting with impressive speed after the issue was raised to their attention by the media, and changing their policy immediately. So perhaps the cynicism is unwarranted.
"you'll still need to use torture in situations like the one just after 9/11. That's because torture works. It is indeed useless for extracting confessions (people will confess anything, that's true), but it has always worked quite well to extract informations."
I wonder if you can provide any evidence to back up this claim? Because I have seen evidence that contradicts it... that suggests that torture does not work and does not help in such situations.
F or my second piece of evidence, I present the conclusions of the Senate panel looking into the actual torture performed after 9/11 and whether that torture was effective. They concluded that in *every single case* it did not actually produce new, useful information. Again, a popular press report that summarizes and links to the actual story: http://www.theguardian.com/us-news/2014/dec/09/senate-committee-cia-torture-does-not-work
Do you have anything more than mere feelings to support your claim? Because it is my belief that NOT ONLY are there grave moral issues with the use of torture, BUT ALSO its use does not actually help achieve the goals it is intended for. And IN ADDITION it normalizes the behavior thus encouraging groups like the "Islamic State" (aka. ISIS or ISIL) to engage in torture. If I am correct, and all this cost is for absolutely no benefit, then it is truly a great tragedy.
I happen to be my local "Judge of Elections" in Pennsylvania. (It's a relatively minor position that basically means person who runs the election in one voting district.)
In Pennsylvania, each voter is permitted to enter a write-in vote for any office. So in theory your request is satisfied: voters can write in whoever they choose. But in practice, write-in candidates almost never account for any meaningful percentage of the vote. Voters simply will not choose to make the effort to do the write-in vote. I have even seen cases where a party failed (due to paperwork issues) to get a name on the ballot for a primary election. They had party members stand outside the polls handing out papers asking people to write in the name. With no one on the ballot and this sort of support, she still only managed a handful of votes (on the order of 4%).
So allowing people to cast a "protest vote" for whoever they like is a nice idea in theory, but in practice it has no real effect on elections.
In general, I am quite concerned about overreach in trademark laws. However, I think this case actually has merit.
Using common English words such as "easy", "it", and "take" are not violations of copyright, trademark, or right to publicity laws. Nor is referring to a shirt as a "Henley". A label encouraging a customer to "don" some piece of clothing is not a violation of the rights of some person named "Don".
But putting on a label saying "DON A HENLEY and Take it easy" -- that may well be a violation of some or all of these. The law does not operate like some computer program which can only blindly apply it's unambiguously defined terms to each fact independently. Instead, the law is permitted to consider the actor's intent and the effect of their behaviors, and is permitted to use common sense in inferring these from the overall behavior. And it would be completely disingenuous to fail to notice that the label, taken as a whole, strongly suggests a certain person and a certain song.
I haven't said that they Mr Henley ought to win this lawsuit -- that would require a judge, jury, and the full evidence from both sides. But one or more of the claims may well have merit so I don't think this case deserved the sort of opprobrium heaped on it in this article.
Imagine the extensive day-to-day difficulties if our existing policy of "open electricity" were replaced with a regime where every time you brought a electric drill over to your friend's house to help put up a wall, you had to sign some sort of an indemnification form before plugging it in lest your friend be held responsible if you were to attack someone with the drill.
On the post: Facebook, Twitter Consistently Fail At Distinguishing Abuse From Calling Out Abuse
Legal System
(1) both sides present their case
(2) someone decides
(3) there is an "appeals" process where one (or more) layers can review the decisions for fairness
Maybe those companies (Facebook, Twitter, etc) trying to set up a review system should take inspiration from this deep historical source.
On the post: Trump Says There's 'No Reason' To Scale Back Asset Forfeiture; Threatens Career Of Senator Backing Forfeiture Reform
Simple way to change Trump's position on Forfeiture
On the post: Charles Harder Sends Ridiculous Threat Letter To People On Behalf Of Melania Trump
Re: Free speech will only apply to Trump speech?
> If I were Hillary I'd hammer on this in the next debate, and yes, include Melania.
Remember Michelle Obama's words: "When they go low, we go high." At least we SHOULD.
I don't care which party you support, surely everyone can agree that we need to step back from this insult-driven election.
On the post: FBI Tests The Waters On Another Attempt To Force Apple To Unlock An iPhone
The FBI isn't this stupid
In this case they would be investigating police misconduct (a case guaranteed to put the public more on edge than, say, a terrorism case). The only people who would feel "threatened" by this case are those minorities who worry about getting shot by the police -- not the most supportive group. And there is no colorable argument that the victim's cell phone might lead to knowledge that would protect lives; at best it might help to exonerate the murderer.
Furthermore, the previous case is still relatively fresh in the minds of citizens and legislators, including the resolution of that case (turned out the FBI was making a mountain out of a molehill, could resolve it without Apple's help, and that the phone didn't reveal any helpful information after all).
I don't believe the FBI is foolish enough to press this case in court.
On the post: Journalists Blaming Facebook For Decline Is Just As Tiresome As When They Blamed Craigslist & Google
And I just thought I'd leave this here...
On the post: Italy Proposes Law To Make Mocking People Online Illegal
How I will use this law
After all, the web page http://www.governo.it/il-governo has for YEARS been mocking me. Many have said that the site has absolutely nothing to do with me, but in fact I am STRONGLY INSULTED by the subtle implications it makes about me (without actually naming me).
None of my previous attempts to get the site shut down have gone anywhere, but now that we have a law which is driven by *my feelings of personal insult* (rather than some "objective" test like falsity or actually mentioning me by name) I should be able to force them to take the page down.
On the post: Will The Washington Post Give Back Its Pulitzer And Stand Trial With Snowden?
Re: Re: WP is treasonus
No it isn't. Shooting or bombing citizens as a political protest may be an act of war; waving a flag (any flag) is a form of speech, protected by the first amendment.
On the post: Government Again Shows Its Inconsistency On Punishing The Mishandling Of Classified Documents
Where is Congress?
Congress should exercise it's constitutional duty of oversight and should use that to pressure and embarrass those members of the military leadership who allowed this persecution to take place. It should do so for the sake of its own power, even if they can think of no *other* reason.
On the post: German Court Insults Free Speech, Bans Comedian From Mocking Turkish President
The actual poem
On the post: Milwaukee PD Hid Stingray Usage From Judges, Defendants And Now Congress Members Want Answers From The FBI
Re: Re: Re: Redundant question
That much is true.
> And, given that it's usually a prosecutor talking to the court, then it's the prosecutor who's perjuring [him/her]self, in talking about what the cops did.
False. The prosecutor is NOT under oath, and cannot commit perjury. The prosecutor must call witnesses who will explain (under oath) to the judge and jury what happened. Police officers spend a not-negligible amount of their time testifying in court.
> And that constitutes conspiracy after the fact.
No, it doesn't. For one thing, prosecutors have a thing called "absolute immunity". It means that they can't be prosecuted (or sued) for doing their job (prosecuting cases in court), not even if they lie, cheat, and break every rule. There are a FEW specialized exceptions (but VERY few) and I seriously doubt that "conspiring with the police" would qualify.
I'm not saying this is a GOOD thing, but it is how the US legal system works today.
On the post: AT&T Uses Binding Arbitration Mouse Print To Kill Throttling Class Action
Flip-Flop is Fine
That is a very reasonable and consistent position to take. One may believe that certain rules apply, but if they don't, then at least the other rules apply.
(The part where they say that the other rules apply retroactively is an interesting and creative approach. I wonder whether they believe that the FTC's lack of jurisdiction in the past is paired with the FCC having jurisdiction over AT&T's past behavior. Somehow I doubt it.)
On the post: Harvard Law Review Freaks Out, Sends Christmas Eve Threat Over Public Domain Citation Guide
Error in title?
On the post: 'Hundreds' Of Teens Found Sexting At A Single School And Everyone Seems Unsure Of How To Proceed
Astounding Hypocrisy from School Officials
On the post: Jamaican Government Steals Years Of Public Domain Works From Its People
Legal Question on Derivative Works
On the post: Will Australian Government Use Cost-Benefit Analysis To Kill Off Fair Use Proposal Once And For All?
Economic Analysis is an Excellent Idea
Obviously economic impact cannot be the sole determinant as there are many other factors at work such as moral rights and freedom of expression, but economic impact ought to be one component of the consideration.
Of course any economic analysis must consider ALL of the economic impacts. When considering a law to regulate scrap metal one it would be totally absurd to consider the economic impact on scrap dealers without also considering the impact on those who create metal waste and those who consume recycled scrap metal. Without that, the economic analysis could only suggest changes that would increase the cost of recycled metal, decrease the cost of scrap, and increase the volume of metal recycled -- regardless of the harm it did to other parts of the economy. We would pass laws requiring every citizen possessing even a scrap of metal to deliver it for free to a licensed scrap metal dealer.
Similarly, when we consider the economic impact, we must include the impact on companies and people who would otherwise utilize fair use exceptions or would make use of public domain materials if copyright laws were not in place. I think any honest evaluation of the economic impact of these factors might prove quite a surprise to Mr. Brandis.
On the post: Prison Messaging Service No Longer Claims It 'Owns' All Of Your Communications
Re: Re: Who's the customer?
All that being said, however, I don't see any indications that JPay is ignoring the well-being of prisoners and their families in the single-minded pursuit of pleasing prison officials. Even if it WOULD be in their best interest, I see much the opposite. I see JPay reacting with impressive speed after the issue was raised to their attention by the media, and changing their policy immediately. So perhaps the cynicism is unwarranted.
On the post: Waterboarding Whistleblower Released From Prison, Two Months After Torture Report's Release Vindicated His Actions
Re: "Torture Works"
"you'll still need to use torture in situations like the one just after 9/11.
That's because torture works. It is indeed useless for extracting confessions (people will confess anything, that's true), but it has always worked quite well to extract informations."
I wonder if you can provide any evidence to back up this claim? Because I have seen evidence that contradicts it... that suggests that torture does not work and does not help in such situations.
For my first piece of evidence, here is a popular science article referencing an actual neurobiology study showing torture is not effective: http://arstechnica.com/science/2009/09/science-behind-us-coercive-interrogations-missing-in-action/
F or my second piece of evidence, I present the conclusions of the Senate panel looking into the actual torture performed after 9/11 and whether that torture was effective. They concluded that in *every single case* it did not actually produce new, useful information. Again, a popular press report that summarizes and links to the actual story: http://www.theguardian.com/us-news/2014/dec/09/senate-committee-cia-torture-does-not-work
Do you have anything more than mere feelings to support your claim? Because it is my belief that NOT ONLY are there grave moral issues with the use of torture, BUT ALSO its use does not actually help achieve the goals it is intended for. And IN ADDITION it normalizes the behavior thus encouraging groups like the "Islamic State" (aka. ISIS or ISIL) to engage in torture. If I am correct, and all this cost is for absolutely no benefit, then it is truly a great tragedy.
On the post: Free Speech Under Attack In Pennsylvania: New Law Bans Actions By Criminals That Might Upset Their Victims
Re: Re: Re: Its called 'election'
In Pennsylvania, each voter is permitted to enter a write-in vote for any office. So in theory your request is satisfied: voters can write in whoever they choose. But in practice, write-in candidates almost never account for any meaningful percentage of the vote. Voters simply will not choose to make the effort to do the write-in vote. I have even seen cases where a party failed (due to paperwork issues) to get a name on the ballot for a primary election. They had party members stand outside the polls handing out papers asking people to write in the name. With no one on the ballot and this sort of support, she still only managed a handful of votes (on the order of 4%).
So allowing people to cast a "protest vote" for whoever they like is a nice idea in theory, but in practice it has no real effect on elections.
On the post: Don Henley Sues Clothing Retailer Over Its Use Of Common English Words
I'm not persuaded
Using common English words such as "easy", "it", and "take" are not violations of copyright, trademark, or right to publicity laws. Nor is referring to a shirt as a "Henley". A label encouraging a customer to "don" some piece of clothing is not a violation of the rights of some person named "Don".
But putting on a label saying "DON A HENLEY and Take it easy" -- that may well be a violation of some or all of these. The law does not operate like some computer program which can only blindly apply it's unambiguously defined terms to each fact independently. Instead, the law is permitted to consider the actor's intent and the effect of their behaviors, and is permitted to use common sense in inferring these from the overall behavior. And it would be completely disingenuous to fail to notice that the label, taken as a whole, strongly suggests a certain person and a certain song.
I haven't said that they Mr Henley ought to win this lawsuit -- that would require a judge, jury, and the full evidence from both sides. But one or more of the claims may well have merit so I don't think this case deserved the sort of opprobrium heaped on it in this article.
On the post: European Court Of Justice To Consider Legal Ramifications Of Offering Open WiFi
Open WIFI is like...
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