Isn't pseudonymity sort of a nice middle ground? People tend to value the credibility they build up behind a pseudonym. Even if I didn't know that Dark Helemet's real name was Tim Geigner, I'm more likely to read a Dark Helmet comment than one by an AC, largely since he's built up so much credibility over time on Techdirt. Likewise, I wouldn't immediately someone who goes by the real name of "John Smith" as more credible than an AC.
The Identicon Avatars used on Techdirt are actually a form of pseudonymity. And they work well. They've substantially improved the quality of the commenting here at Techdirt -- not because they discourage trolls but because they allow me to distinguish a troll-ish AC from other non-troll-ish ACs.
There are good reasons for not requiring registration to comment, but if trolls are a problem, a pseduonym-based reputation system seems like a good way to valance the value of keeping one's real identity secret with filtering out the trolls.
To the extent that you're worried about forgetting your passwords or passwords stored in plain text, you can ameliorate this by using LastPass, 1Password, KeePass, or some other password manager that generates, encrypts, and stores random passwords for each of your websites.
As the Gawker and Sony hacks show, it's good policy to do this even if you don't value anonymity.
Here's one reason why the State Department would be concerned.
Let's say that, as required by law, GoDaddy blocks access to the Pirate Bay, which is hosted in a foreign country. OK, let's assume that's OK with the State Dep't.
However, the bill also prohibits making and distributing any technology that allows an American to circumvent GoDaddy's ban of the Pirate Bay.
Here's the problem. The technology that allows an American to circumvent a ban to access the Pirate Bay is the same technology that a Chinese dissident would use to access the Wikipedia entry about Tiananmen Square.
Would the U.S. government take action against a technology producer whose products were used primarily to circumvent Chinese censorship? Unlikely.
But suppose the technology, which might be Tor or something similar, was used 51% of the time to circumvent copyright protections, and only 49% to circumvent human rights restrictions. Would that be subject to restrictions? What about 80-20? How about technology that was intentionally designed to circumvent copyright restrictions, but ended up being used mostly to evade human rights restrictions? Or vice versa?
The bill isn't very clear, and it's not hard to see how there could be a significant negative effect on censorship-circumvention technologies promoted by the State Department.
There might be a 1st Amendment case if PACER is the only (reasonable?) way to obtain a particular public record.
Imagine if a court document was only available in hard-copy, and when you went to pick it up, you were forced to sign a contract saying you can't republish the document online.
The net effect would be that the document was not available online, even though I have a First Amendment right to publish online. That seems wrong on a gut level, and an example of the government "produc[ing] a result which [it] could not command directly" under Speiser v. Randall.
As it is though, you could easily pay for the right to republish on RECAP. Not sure how this affects 1st Amendment analysis.
The purpose of the "no RECAP" rule is to deny non-exempt users access to documents shared by fee-exempt users, thereby forcing non-exempt users to pay more for access.
Under the statute, the only authorized purpose for charging different rates to different "classes of persons" is "to avoid unreasonable burdens and to promote public access." The purpose for the "no RECAP" rule is arguably inconsistent with that.
The question isn't whether PACER's terms of use, in general, are enforceable. The argument is that this specific PACER term violates a Congressional statute, namely Public Law 102-140.
When Congress authorizes funding for government websites, it can attach restrictions to the funding. In this case, Congress authorized appropriations for PACER on the condition that PACER only collect fees to cover costs, not make a profit.
What do the courts do with all that money? In 2007, a judicial committee reported that "significant unobligated balances have accumulated" as a result of growing PACER usage. It proposed to use the extra funds for various IT projects.
One example is a courtroom renovation one judge described at a 2010 conference. He said that as a result of PACER fees, "every juror has their own flatscreen monitors," and there are also monitors for members of the public to see. His courtroom also got the latest audio technology. "We just put in new audio so that people—I'd never heard of this before—but it actually embeds the speakers inside of the benches in the back of the courtroom and inside counsel tables so that the wood benches actually perform as amplifiers," the judge said.
It's great for courtrooms to have better A/V technologies. But diverting PACER fees to projects unrelated to PACER may be illegal. Harlan Yu, an open government expert at Princeton's Center for Information Technology Policy, points to the 2002 law authorizing the PACER fees, which states that those fees may be charged "only to the extent necessary" to cover the costs of providing public access. Congress "sought to have a system in which the information is 'freely available to the greatest extent possible,'" he told Ars, quoting from the conference report that accompanied the legislation.
Were this a commercial site, then yes, PACER could enforce the terms of use.
But PACER is owned and operated by the government. It's also subject to Congressional Law, including Public Law 102-140 (as amended):
The Judicial Conference may, only to the extent necessary, prescribe reasonable fees, pursuant to sections 1913, 1914, 1926, 1930, and 1932 of title 28, United States Code, for collection by the courts under those sections for access to information available through automatic data processing equipment. These fees may distinguish between classes of persons, and shall provide for exempting persons or classes of persons from the fees, in order to avoid unreasonable burdens and to promote public access to such information.
The key is the last sentence -- does creating a class of users who can't use RECAP "avoid unreasonable burdens" or "promote public access"? PACER would probably argue that if it fee-exempt users could upload court docs to RECAP, then no one would have an incentive to pay for PACER access. And if no one pays, then maintaining PACER would become an "unreasonable burden." Or they'd have to shut down fee-exempt access, ultimately harming "public access".
I think that's baloney. PACER fees are clearly unreasonable. I forget the link, but lawyers have shown that PACER fees are such that it's operating with substantial profit. While we encourage private companies to seek profit, the government shouldn't restrict how people use information for the sole purpose of maintaining a profitable monopoly.
Moreover, if PACER fees were solely to maintain public access, there's a much better "business model" for the government here. Just charge every lawyer a fixed fee. This ensures PACER has a relatively stable source of revenue that doesn't fluctuate with the vagaries of technology.
Sort of -- judges aren't required to accept factual claims that are incompletely implausible.
But this is risky for the judge. There are two things at play here:
(1) The "final judgment rule" says you can't appeal losing a decision until you've exhausted alternatives to appeal at the lower court. So defendants can't appeal a failure to dismiss because they have the chance to succeed at trial. But plaintiffs CAN appeal a dismissal, since if there's a dismissal, they never get to trial.
(2) Judges hate being overturned on appeal.
So if you're the judge, it's in your interest to not dismiss. If you dismiss, you have to worry about the plaintiff appealing right away. If you don't dismiss, you don't have to worry about anyone appealing until later.
Keep in mind that the judge's refusal to dismiss the case at this stage does not mean the plaintiff has "won".
First, you have to understand the distinction between questions of law and questions of fact. A question of law is something like: "Does U.S. trademark law apply overseas?" A question of fact is something like: "Was anyone actually confused by the CAR-FRESHNR pictures?"
This is only a motion to dismiss. When considering a motion to dismiss, a judge must accept the plaintiff's facts as true, and only rule on the legal questions. So if CAR-FRESHNR has sued over photos not in the U.S., then Getty could dismiss by arguing that U.S. trademark law does not apply to those photos. That's a question of law.
Presumably CAR-FRESHNR says there's customer confusion. While it may be obvious (to us) that there's no customer confusion, if there's even a .1% chance that's true, the judge has to accept that. This ties the judge's hand. While the judge may be skeptical about this, he can't do anything. Customer confusion is a question of fact, and are really hard to challenge at the motion to dismiss stage.
This is different from a motion for summary judgment. On a motion for summary judgment, you're allowed to argue that the other side doesn't have enough evidence to back up their factual allegations. This is when the judge can demand that CAR-FRESHNR show evidence of customer confusion and can dismiss the suit once CAR-FRESHNR brings nothing.
You could argue that judges should have more leeway to dismiss cases where it's obvious that plaintiffs can't bring any evidence to prove their point. Maybe. But that's not the law.
Isn't the easiest way to protect the copyright just to ask for a $1 license fee? Or even to say:
We know you're doing this. It's technically not legal. We'll let you get away with it this time, but we're not waiving our right to sue you if you do anything more than that.
I disagree with the outcome, but I don't think the judge is technologically incompetent here. Judge Ware should actually be a relatively tech savvy guy by now, having ruled on quiet a few Internet-related cases in the last few years.
Read the opinion (again). The judge acknowledges that wi-fi uses radio technology, but is arguing that Congress meant something else when they put the word "radio" into the law.
You could disagree about what Congress meant (if anything), but I don't think the judge's interpretation is unreasonable. Radio is an ambiguous term. When the average person says "the radio is on", they probably aren't referring to a wi-fi router or mobile phone. And given that Congress is full of average people (at least in terms of technical ability), going with the technically inaccurate definition makes sense.
This sounds like when courts first encountered wiretapping. In Olmstead v. United States, the Supreme Court held that the 4th Amendment did not prohibit warrantless wiretapping, largely because you can't physically "search" or "seize" a phone conversation.
This didn't change until almost 40 years late in Katz v. United States, when the Court began to recognize that the 4th Amendment protected "people, not places".
Mike, you left out the important part! These seismologists were also employed by Dr. Evil and had direct knowledge of his attempts to detonate nuclear devices beneath the earth's crust!
On the post: Anonymous Commenters: Cowards Or Contributors?
Pseudonymity
The Identicon Avatars used on Techdirt are actually a form of pseudonymity. And they work well. They've substantially improved the quality of the commenting here at Techdirt -- not because they discourage trolls but because they allow me to distinguish a troll-ish AC from other non-troll-ish ACs.
There are good reasons for not requiring registration to comment, but if trolls are a problem, a pseduonym-based reputation system seems like a good way to valance the value of keeping one's real identity secret with filtering out the trolls.
On the post: Anonymous Commenters: Cowards Or Contributors?
Re:
As the Gawker and Sony hacks show, it's good policy to do this even if you don't value anonymity.
On the post: White House Petition Against E-PARASITE/SOPA
Re:
Let's say that, as required by law, GoDaddy blocks access to the Pirate Bay, which is hosted in a foreign country. OK, let's assume that's OK with the State Dep't.
However, the bill also prohibits making and distributing any technology that allows an American to circumvent GoDaddy's ban of the Pirate Bay.
Here's the problem. The technology that allows an American to circumvent a ban to access the Pirate Bay is the same technology that a Chinese dissident would use to access the Wikipedia entry about Tiananmen Square.
Would the U.S. government take action against a technology producer whose products were used primarily to circumvent Chinese censorship? Unlikely.
But suppose the technology, which might be Tor or something similar, was used 51% of the time to circumvent copyright protections, and only 49% to circumvent human rights restrictions. Would that be subject to restrictions? What about 80-20? How about technology that was intentionally designed to circumvent copyright restrictions, but ended up being used mostly to evade human rights restrictions? Or vice versa?
The bill isn't very clear, and it's not hard to see how there could be a significant negative effect on censorship-circumvention technologies promoted by the State Department.
On the post: Court Tells Users They Can't Use RECAP
Re: Re: Re: Re: Re: Re: Re: Re: Re:
Imagine if a court document was only available in hard-copy, and when you went to pick it up, you were forced to sign a contract saying you can't republish the document online.
The net effect would be that the document was not available online, even though I have a First Amendment right to publish online. That seems wrong on a gut level, and an example of the government "produc[ing] a result which [it] could not command directly" under Speiser v. Randall.
As it is though, you could easily pay for the right to republish on RECAP. Not sure how this affects 1st Amendment analysis.
On the post: Court Tells Users They Can't Use RECAP
Re: Re: Re: Re: Re: Re: Re:
Under the statute, the only authorized purpose for charging different rates to different "classes of persons" is "to avoid unreasonable burdens and to promote public access." The purpose for the "no RECAP" rule is arguably inconsistent with that.
On the post: Court Tells Users They Can't Use RECAP
Re: Re: Re: Re: Re:
When Congress authorizes funding for government websites, it can attach restrictions to the funding. In this case, Congress authorized appropriations for PACER on the condition that PACER only collect fees to cover costs, not make a profit.
On the post: Court Tells Users They Can't Use RECAP
Re: Re: Re: Re:
On the post: Court Tells Users They Can't Use RECAP
Re: Re: Re:
But PACER is owned and operated by the government. It's also subject to Congressional Law, including Public Law 102-140 (as amended):
The key is the last sentence -- does creating a class of users who can't use RECAP "avoid unreasonable burdens" or "promote public access"? PACER would probably argue that if it fee-exempt users could upload court docs to RECAP, then no one would have an incentive to pay for PACER access. And if no one pays, then maintaining PACER would become an "unreasonable burden." Or they'd have to shut down fee-exempt access, ultimately harming "public access".
I think that's baloney. PACER fees are clearly unreasonable. I forget the link, but lawyers have shown that PACER fees are such that it's operating with substantial profit. While we encourage private companies to seek profit, the government shouldn't restrict how people use information for the sole purpose of maintaining a profitable monopoly.
Moreover, if PACER fees were solely to maintain public access, there's a much better "business model" for the government here. Just charge every lawyer a fixed fee. This ensures PACER has a relatively stable source of revenue that doesn't fluctuate with the vagaries of technology.
On the post: Is Getty Guilty Of Trademark Infringement For Every Photo It Has That Shows A Trademark?
Re: Re: Motion to Dismiss vs. Summary Judgment
But this is risky for the judge. There are two things at play here:
(1) The "final judgment rule" says you can't appeal losing a decision until you've exhausted alternatives to appeal at the lower court. So defendants can't appeal a failure to dismiss because they have the chance to succeed at trial. But plaintiffs CAN appeal a dismissal, since if there's a dismissal, they never get to trial.
(2) Judges hate being overturned on appeal.
So if you're the judge, it's in your interest to not dismiss. If you dismiss, you have to worry about the plaintiff appealing right away. If you don't dismiss, you don't have to worry about anyone appealing until later.
On the post: Is Getty Guilty Of Trademark Infringement For Every Photo It Has That Shows A Trademark?
Motion to Dismiss vs. Summary Judgment
First, you have to understand the distinction between questions of law and questions of fact. A question of law is something like: "Does U.S. trademark law apply overseas?" A question of fact is something like: "Was anyone actually confused by the CAR-FRESHNR pictures?"
This is only a motion to dismiss. When considering a motion to dismiss, a judge must accept the plaintiff's facts as true, and only rule on the legal questions. So if CAR-FRESHNR has sued over photos not in the U.S., then Getty could dismiss by arguing that U.S. trademark law does not apply to those photos. That's a question of law.
Presumably CAR-FRESHNR says there's customer confusion. While it may be obvious (to us) that there's no customer confusion, if there's even a .1% chance that's true, the judge has to accept that. This ties the judge's hand. While the judge may be skeptical about this, he can't do anything. Customer confusion is a question of fact, and are really hard to challenge at the motion to dismiss stage.
This is different from a motion for summary judgment. On a motion for summary judgment, you're allowed to argue that the other side doesn't have enough evidence to back up their factual allegations. This is when the judge can demand that CAR-FRESHNR show evidence of customer confusion and can dismiss the suit once CAR-FRESHNR brings nothing.
You could argue that judges should have more leeway to dismiss cases where it's obvious that plaintiffs can't bring any evidence to prove their point. Maybe. But that's not the law.
On the post: Why Did Intellectual Ventures Sue Motorola Mobility... Even As Google Is An IV Investor?
Re: Dont like the rules, dont play the game.
Likewise, if Google pays Intellectual Ventures not to sue, and they sue anyway, something's rotten in the state of Denmark.
On the post: How Cisco & The Justice Department Conspired To Try To Destroy One Man's Life For Daring To Sue Cisco
Multiven v. Cisco
On the post: The Dark Side Wins: Lucasfilm Shuts Down Star Wars Fan Movie Marathon
Re:
We know you're doing this. It's technically not legal. We'll let you get away with it this time, but we're not waiving our right to sue you if you do anything more than that.
On the post: Rojadirecta Sues US Government, Homeland Security & ICE Over Domain Seizure
TechCrunch?
On the post: California Politician Who Wrote Unconstitutional Anti-Video Game Law Plans To Try Again With New Law
A hypothetical
Which do you think would have a greater impact on kids and violence?
On the post: Judge Who Doesn't Understand Technology Says WiFi Is Not A Radio Communication
Actually the Judge gets it
Read the opinion (again). The judge acknowledges that wi-fi uses radio technology, but is arguing that Congress meant something else when they put the word "radio" into the law.
You could disagree about what Congress meant (if anything), but I don't think the judge's interpretation is unreasonable. Radio is an ambiguous term. When the average person says "the radio is on", they probably aren't referring to a wi-fi router or mobile phone. And given that Congress is full of average people (at least in terms of technical ability), going with the technically inaccurate definition makes sense.
On the post: Dan Snyder Helping Politicians Recognize The Importance Of A Federal Anti-SLAPP Law
Re:
On the post: Think Tank Says DHS Should Stop Laptop Border Searches
Wiretapping
This didn't change until almost 40 years late in Katz v. United States, when the Court began to recognize that the 4th Amendment protected "people, not places".
So ... give it some time?
On the post: Seismologists Tried For Manslaughter Due To Earthquake
The unsaid portion
On the post: Singer's Ex-Boyfriend Demands Royalties For Inspiring Songs About Their Relationship & Breakup
Re: Who's next?
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