In other words, in trying to fine ABC for "indecency," the PTC and Kevin Martin helped to publicize the video, which for a while was apparently the most popular video on YouTube.
While on the surface, this may seem ironic, I don't think it really is. This situation isn't that the FCC didn't want anyone to see Charlotte Ross's ass, but ended up actually prompting millions more people to see her ass than would have. This would be ironic. But that's not what happened. The FCC didn't want anyone to see Charlotte Ross's ass on network television.
Now, to be clear, I couldn't care less about nudity, fleeting or otherwise, on network TV. I find it very strange that people freak out about their kid seeing a tit far more than someone getting shot on TV. But if you focus on just this particular situation, then I don't really see any irony here. It's about context. You can go to the beach wearing almost nothing and it's OK, but if you show up to your office in the same clothes, you'll be escorted out of the building. At least ostensibly, the FCC didn't care about whether or not a bunch of people saw a naked ass. They just had a problem with that ass being shown via a medium that doesn't traditionally show that kind of content. I don't know much about the PTC, but I get the sense that they don't want anyone to see an naked ass anywhere, but this isn't the official stance of the FCC.
Ignore the first part of my post above. It's clear from the TD article that "re-exam" in this context relates to third-party requests, not requests from the applicant after a rejection. My bad.
3 out of every 4 such re-exams result in adjustments or total rejections. In other words, on the patents that are being asserted regularly (which are the ones where re-exams are requested), the majority of the time, the Patent Office admits it got the original patent wrong.
Hmmm, given the past TechDirt articles on how applicants will arbitrarily keep resubmitting patents until they get approved, I would think that the stats indicate the opposite. Specifically, that the patent office was right in the majority of cases to reject a patent application and that the "3 out of every 4" stat represents cases where they just got so fed up with the repeated submissions, they just went ahead and issued the bad patent to "resolve" the issue.
If you want to put a year limit on the patent process, say that you can only resubmit a patent application up to five years after the original submission date. Then, instead of the lack of resources at the patent office working in favor of patent bloat, it would work against it. "Oh, we were only halfway through your patent resubmission review and it's already been five years? Too bad. Maybe you should talk to your congressperson and ask that they fund the patent office more so that we can review patent applications more quickly."
Of course, I imagine that if this is to be changed it will be sorted out quickly and quietly - and probably retroactively;
At first when I read the article, I thought maybe this would be a good thing because it would lead to big media in Scotland having to argue that IP wasn't actually property, so this law should not apply. Of course this wouldn't be the smart thing to do as it would weaken their overall argument, but no one said that big media is smart when it comes to choosing their legal strategy. But, as you point out, there probably won't even be a public discussion on that. They'll just "fix" the problem behind closed doors. "Nothing to see here, folks. Move along."
I think the myth started in the first place for the simple reason that, with previous disclosures, tens of thousands of source docucuments were released. A quick search on Wikipedia shows that WikiLeaks released 76,900 documents about the war in Afghanistan and 400,000 documents about the war in Iraq. So, it's really easy for journalists, politicians, and the general public to just assume that they used the same model with the diplomatic cables.
Now, as to why the myth persists, it could very well be lazy journalism or even bias, but I think it probably has more to do with the fact that it appears consistant with what they've done in the past, so to many, it's not worth thinking about any more.
OK, continuing on with my play at devil's advocate, if I were the hypothetical lawyer who thought linking was the same as distribution, I'd reply this way...
"The flaw in your logic is that no where in the constitution is there an explicit right spelled out to protect the location of banks. So, selling a map or even directions to a bank is perfectly legal. On the other hand, the right to control distribution of copyrighted materials is explicitly spelled out in the constitution. In the physical world, you control distrution by controlling a physical good. In the virtual world of the Internet, you control distribution by controlling access to information. And that's all a link is, a means to access information."
Once again, I don't think that linking is the same thing as distribution. However, I can see where a savvy attorney could use the distribution clause in copyright to make a well-reasoned (though ultimatelly invalid) argument that the two concepts were the same. I'm thinking of the "average joe" as the target of this argument, not the (mostly) IP-savy readers of TechDirt. To Average Joe, I think the "If linking isn't distributing, what is it?" argument would work in many cases.
I agree with Gabriel that it's going to be distribution
By this I didn't mean that you thought linking was distribution, just that distribution would be the crux of the argument by some in big media as to why linking is covered by copyright as in "I already guess that some will argue the links themselves are distribution."
If they are helping someone else file, are they involved in the filing?
Yes, but how is that relevant at all? So, you not only think that arbitrarilly adding "or anyone else" to an existing policy is OK because it's just a "clarification", but you think that you can do the same thing with "or involved with"? Please.
Otherwise they could just get anyone else to do the work of filing for them, perhaps their secretary? This is how it works in the real world.
Excuse me, but in the real world, rules, policies, and laws have to be enforced as written, not as some bureaucrat chooses to interpret them for them own self-protecting reason.
As for your example, it's meaningless because a professor's secretary is still an employee of the university. You'll note that the policy applied to all employees, not just professors.
Besides, we're not talking about a policy like making a new pot of coffee if you take the last cup. Filing requests for information like those discussed in the article are a key skill of a journalist. It couldn't be any more obvious that Texas A&M doesn't want its own students poking around into its internal affairs.
If I sell road maps and you buy one and use it to find a bank to rob, am I complicit?
No, but that's because the location of a bank is a fact which can't be copyrighted. I see your point, but if the lawyers for the big media companies are looking for one of the exclusive rights to use, I agree with Gabriel that it's going to be distribution. Not to give them any ideas, but I think the logic would go something like this...
"The framers of the constitution explicitly spelled out the right distribution as one of the key principle of copyright. At the time, this meant the right to control where and how physical objects, such as books and pamphlets, made it into the hands of consumers. In today's world, books and other media are distributed using the Internet. But just because this distribution is faster and easier, doesn't mean that it is no longer covered by the distribution clause of the copyright law. If linking isn't distributing, what is it?"
the largest sources of DMCA takedowns are "Google, Yahoo, Digg, and most recently, Twitter."
Just to clarify, the linked article is actually saying the opposite, that these parties are the largest recipients of DMCA takedowns. Twitter isn't issuing any takedown requests; they're merely passing on information about the takedowns they receive to ChillingEffects.org.
The professors cannot file or help anyone else file within their professional capacity
I'm sorry, but you can't just arbitrarilly add in "or anyone else" to an existing rule/law/policy and call it a "clarification". It materially changes the meaning of the policy by broadening its impact exponentially. This is no more a clarification than when a politician makes a verbal flub in public and their PR team issues a statement the next day saying that they meant the exact opposite of what they said.
It could very well be legal for the university to have changed its policy to include the "or anyone else" clause, but the fact that they just issued a "clarification" indicates to me that they simply didn't want to go through the hassle. "We're in charge, so just do what we say" was probably the thought. But even if they did change the policy officially, it wouldn't change one of the main points of the post, that Texas A&M is being hypocritical.
Statement 1:
"the rule bars system employees from submitting open records requests"
Statement 2:
"the policy limits what faculty members can assign students to do"
Do you not see the difference between Statements 1 and 2? A major point of the TD post is that the original rule was Statement 1 and then, when the university realized that something was going on it didn't like, it "clarified" i.e. redefined Statement 1 to include Statement 2.
The difference between the two statements is not some technicality. It's a key distinction.
There is no indication of any hiding of wrongdoing
I addressing your statement, speaking generically about an hypothetical employee, not the employees in question. You said it's "an employee's duty not to bring discredit on the employer's business". This specific statement is not true.
The question of the original rule being legal or not is another discussion.
Agreed. What they did may be perfectly legal. But the reason that this situation is a story is that the university is clearly being hypocritical, on one hand promoting investigative journalism and attempting to stymie it on another hand when it relates to itself.
Logically, it is an employee's duty not to bring discredit on the employer's business.
No it isn't. An employee may feel an obligation to hide wrongdoing of their employer out of a sense of loyalty or sheer self-preservation, but if you're talking about "duty", that word would be more appropriate to the higher obligation to be a whistleblower for wrongdoing.
At what point does airing dirty laundry step over the line from "free speech" to "causing damage"?
"Free speech" and "causing damage" are independent. Short of things like yelling "fire!" in a movie theatre, one's right to say something in public, especially when it's true, is not dependent on an analysis of whether it will damage anyone else, especially when the anyone else was doing wrong.
They do not forbid the students from making such requests
No one is suggesting that they did, so I fail to see the relevance of your statement. The story is about the university's actions against its employees, not against (at least directly) its students.
But TD decided that the real story is the "threat"
You must not have read the posts where others have clearly showed that there was a threat or are in denial that the univiersity's actions constitute a threat. I would agree that it would have been much more clear if Mike would have included the text from the linked article quoted by Shawn, but the headline is still accurate.
The University has a policy, and as part of the policy, they have asked staff not to instruct the students on how to specifically do an open records request against the school
Besides the whole semantic issue around "threaten" -- see Shawn's post below -- you appear to be minimizing the university's abuse of their own policy. Forbidding its student from filing open records requests was not "part of the policy" applicable to employees. By all indications, Texas A&M pulled a completely new policy out of its ass and just called it a "clarification" of an existing policy. That's the real story.
Face it, we're not going to get a government that has free market ideals front and center.
Sadly, I think you're right. But I think the reason for that is the "there outa be a law!" reaction which you appear to agree with based on your "I just don't see a downside..." comment above. The problem is that there is a downside. It's that by addressing the symptoms of the problem, you end up with a million laws and regulations which actually makes the problem worse because that model promotes abuse. Instead of "forcing banks to make payments to legal entities", we just need to set up a system whereby people can route around the companies who censor.
On a related note, I heard a story on the radio today about how some (I think state) legistlature was "unproductive" because it didn't pass as many new laws as last year. I don't know about you, but I consider this to be a huge success, not something that is worthy of the derogitory term of "unproductive". Contrary to their name, the job of lawmakers is not to make as many new laws as possible. I'd vote for a politician if their record was "Stopped 50 stupid laws and helped pass two good ones".
On the post: How The FCC Got Millions To See Charlotte Ross's Naked Behind... And Then Lost In Court
While on the surface, this may seem ironic, I don't think it really is. This situation isn't that the FCC didn't want anyone to see Charlotte Ross's ass, but ended up actually prompting millions more people to see her ass than would have. This would be ironic. But that's not what happened. The FCC didn't want anyone to see Charlotte Ross's ass on network television.
Now, to be clear, I couldn't care less about nudity, fleeting or otherwise, on network TV. I find it very strange that people freak out about their kid seeing a tit far more than someone getting shot on TV. But if you focus on just this particular situation, then I don't really see any irony here. It's about context. You can go to the beach wearing almost nothing and it's OK, but if you show up to your office in the same clothes, you'll be escorted out of the building. At least ostensibly, the FCC didn't care about whether or not a bunch of people saw a naked ass. They just had a problem with that ass being shown via a medium that doesn't traditionally show that kind of content. I don't know much about the PTC, but I get the sense that they don't want anyone to see an naked ass anywhere, but this isn't the official stance of the FCC.
On the post: How To Make The Patent System Even Worse: Make Patent Validity Incontestable
Re: "3 out of every 4"
On the post: How To Make The Patent System Even Worse: Make Patent Validity Incontestable
"3 out of every 4"
Hmmm, given the past TechDirt articles on how applicants will arbitrarily keep resubmitting patents until they get approved, I would think that the stats indicate the opposite. Specifically, that the patent office was right in the majority of cases to reject a patent application and that the "3 out of every 4" stat represents cases where they just got so fed up with the repeated submissions, they just went ahead and issued the bad patent to "resolve" the issue.
If you want to put a year limit on the patent process, say that you can only resubmit a patent application up to five years after the original submission date. Then, instead of the lack of resources at the patent office working in favor of patent bloat, it would work against it. "Oh, we were only halfway through your patent resubmission review and it's already been five years? Too bad. Maybe you should talk to your congressperson and ask that they fund the patent office more so that we can review patent applications more quickly."
On the post: Did Scotland Accidentally Create A 'Use It Or Lose It' Copyright Law?
Re:
At first when I read the article, I thought maybe this would be a good thing because it would lead to big media in Scotland having to argue that IP wasn't actually property, so this law should not apply. Of course this wouldn't be the smart thing to do as it would weaken their overall argument, but no one said that big media is smart when it comes to choosing their legal strategy. But, as you point out, there probably won't even be a public discussion on that. They'll just "fix" the problem behind closed doors. "Nothing to see here, folks. Move along."
On the post: Why Does The Myth Persist That Wikileaks Is Indiscriminately Leaking Thousands Of Documents?
Re: Re:
On the post: Why Does The Myth Persist That Wikileaks Is Indiscriminately Leaking Thousands Of Documents?
The didn't release all the documents *this* time
Now, as to why the myth persists, it could very well be lazy journalism or even bias, but I think it probably has more to do with the fact that it appears consistant with what they've done in the past, so to many, it's not worth thinking about any more.
On the post: Would Twitter Be Liable For Links To Infringing Material?
Re: Re: Re: Re: Sadly Enough
A map to the bank.
OK, continuing on with my play at devil's advocate, if I were the hypothetical lawyer who thought linking was the same as distribution, I'd reply this way...
"The flaw in your logic is that no where in the constitution is there an explicit right spelled out to protect the location of banks. So, selling a map or even directions to a bank is perfectly legal. On the other hand, the right to control distribution of copyrighted materials is explicitly spelled out in the constitution. In the physical world, you control distrution by controlling a physical good. In the virtual world of the Internet, you control distribution by controlling access to information. And that's all a link is, a means to access information."
Once again, I don't think that linking is the same thing as distribution. However, I can see where a savvy attorney could use the distribution clause in copyright to make a well-reasoned (though ultimatelly invalid) argument that the two concepts were the same. I'm thinking of the "average joe" as the target of this argument, not the (mostly) IP-savy readers of TechDirt. To Average Joe, I think the "If linking isn't distributing, what is it?" argument would work in many cases.
On the post: Would Twitter Be Liable For Links To Infringing Material?
Re: Re: Re: Re: Sadly Enough
I agree with Gabriel that it's going to be distribution
By this I didn't mean that you thought linking was distribution, just that distribution would be the crux of the argument by some in big media as to why linking is covered by copyright as in "I already guess that some will argue the links themselves are distribution."
On the post: Would Twitter Be Liable For Links To Infringing Material?
Re: Re: Re: Re: Sadly Enough
You do realize that I was playing devil's advocate, right?
On the post: Texas A&M Threatens Professors Who Suggest Students File Open Records Requests
Re: Re: Re: Re: Re: Re: Re:
Yes, but how is that relevant at all? So, you not only think that arbitrarilly adding "or anyone else" to an existing policy is OK because it's just a "clarification", but you think that you can do the same thing with "or involved with"? Please.
Otherwise they could just get anyone else to do the work of filing for them, perhaps their secretary? This is how it works in the real world.
Excuse me, but in the real world, rules, policies, and laws have to be enforced as written, not as some bureaucrat chooses to interpret them for them own self-protecting reason.
As for your example, it's meaningless because a professor's secretary is still an employee of the university. You'll note that the policy applied to all employees, not just professors.
Besides, we're not talking about a policy like making a new pot of coffee if you take the last cup. Filing requests for information like those discussed in the article are a key skill of a journalist. It couldn't be any more obvious that Texas A&M doesn't want its own students poking around into its internal affairs.
On the post: Would Twitter Be Liable For Links To Infringing Material?
Re: Re: Sadly Enough
No, but that's because the location of a bank is a fact which can't be copyrighted. I see your point, but if the lawyers for the big media companies are looking for one of the exclusive rights to use, I agree with Gabriel that it's going to be distribution. Not to give them any ideas, but I think the logic would go something like this...
"The framers of the constitution explicitly spelled out the right distribution as one of the key principle of copyright. At the time, this meant the right to control where and how physical objects, such as books and pamphlets, made it into the hands of consumers. In today's world, books and other media are distributed using the Internet. But just because this distribution is faster and easier, doesn't mean that it is no longer covered by the distribution clause of the copyright law. If linking isn't distributing, what is it?"
On the post: Would Twitter Be Liable For Links To Infringing Material?
Recipient, not source
Just to clarify, the linked article is actually saying the opposite, that these parties are the largest recipients of DMCA takedowns. Twitter isn't issuing any takedown requests; they're merely passing on information about the takedowns they receive to ChillingEffects.org.
On the post: Texas A&M Threatens Professors Who Suggest Students File Open Records Requests
Re: Re: Re: Re: Re:
I'm sorry, but you can't just arbitrarilly add in "or anyone else" to an existing rule/law/policy and call it a "clarification". It materially changes the meaning of the policy by broadening its impact exponentially. This is no more a clarification than when a politician makes a verbal flub in public and their PR team issues a statement the next day saying that they meant the exact opposite of what they said.
It could very well be legal for the university to have changed its policy to include the "or anyone else" clause, but the fact that they just issued a "clarification" indicates to me that they simply didn't want to go through the hassle. "We're in charge, so just do what we say" was probably the thought. But even if they did change the policy officially, it wouldn't change one of the main points of the post, that Texas A&M is being hypocritical.
On the post: Texas A&M Threatens Professors Who Suggest Students File Open Records Requests
Re: Re: Re:
"the rule bars system employees from submitting open records requests"
Statement 2:
"the policy limits what faculty members can assign students to do"
Do you not see the difference between Statements 1 and 2? A major point of the TD post is that the original rule was Statement 1 and then, when the university realized that something was going on it didn't like, it "clarified" i.e. redefined Statement 1 to include Statement 2.
The difference between the two statements is not some technicality. It's a key distinction.
On the post: Texas A&M Threatens Professors Who Suggest Students File Open Records Requests
Re: Re:
I addressing your statement, speaking generically about an hypothetical employee, not the employees in question. You said it's "an employee's duty not to bring discredit on the employer's business". This specific statement is not true.
The question of the original rule being legal or not is another discussion.
Agreed. What they did may be perfectly legal. But the reason that this situation is a story is that the university is clearly being hypocritical, on one hand promoting investigative journalism and attempting to stymie it on another hand when it relates to itself.
On the post: Texas A&M Threatens Professors Who Suggest Students File Open Records Requests
No it isn't. An employee may feel an obligation to hide wrongdoing of their employer out of a sense of loyalty or sheer self-preservation, but if you're talking about "duty", that word would be more appropriate to the higher obligation to be a whistleblower for wrongdoing.
At what point does airing dirty laundry step over the line from "free speech" to "causing damage"?
"Free speech" and "causing damage" are independent. Short of things like yelling "fire!" in a movie theatre, one's right to say something in public, especially when it's true, is not dependent on an analysis of whether it will damage anyone else, especially when the anyone else was doing wrong.
On the post: Texas A&M Threatens Professors Who Suggest Students File Open Records Requests
Re: Re: Re: Re:
On the post: Texas A&M Threatens Professors Who Suggest Students File Open Records Requests
Re: Re: Re:
No one is suggesting that they did, so I fail to see the relevance of your statement. The story is about the university's actions against its employees, not against (at least directly) its students.
But TD decided that the real story is the "threat"
You must not have read the posts where others have clearly showed that there was a threat or are in denial that the univiersity's actions constitute a threat. I would agree that it would have been much more clear if Mike would have included the text from the linked article quoted by Shawn, but the headline is still accurate.
On the post: Texas A&M Threatens Professors Who Suggest Students File Open Records Requests
Re:
Besides the whole semantic issue around "threaten" -- see Shawn's post below -- you appear to be minimizing the university's abuse of their own policy. Forbidding its student from filing open records requests was not "part of the policy" applicable to employees. By all indications, Texas A&M pulled a completely new policy out of its ass and just called it a "clarification" of an existing policy. That's the real story.
On the post: NY Times Finally Speaks Out Against Financial Firms Blocking Wikileaks
Re: Re: Re:
Sadly, I think you're right. But I think the reason for that is the "there outa be a law!" reaction which you appear to agree with based on your "I just don't see a downside..." comment above. The problem is that there is a downside. It's that by addressing the symptoms of the problem, you end up with a million laws and regulations which actually makes the problem worse because that model promotes abuse. Instead of "forcing banks to make payments to legal entities", we just need to set up a system whereby people can route around the companies who censor.
On a related note, I heard a story on the radio today about how some (I think state) legistlature was "unproductive" because it didn't pass as many new laws as last year. I don't know about you, but I consider this to be a huge success, not something that is worthy of the derogitory term of "unproductive". Contrary to their name, the job of lawmakers is not to make as many new laws as possible. I'd vote for a politician if their record was "Stopped 50 stupid laws and helped pass two good ones".
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