I get your argument between general and specific, but according to the statement of the facts in the complaint from the opinion (helpfully posted above), the case is in fact that specific. The plaintiff alleged that the website knew about a year before plaintiff was raped that the two particular guys from Florida who raped her were using the site to rape women, and had been doing so since 2008.
The complaint goes so far to allege that the current owners of the website sued the prior owners for not telling them about these particular rapists being serial users of the website before selling the site.
I think the lawyer who drafted the plaintiff's complaint was a pretty smart guy; this was the best-pled case to argue that this was a "post a picture of the known dangerous person in your establishment" case rather than a "moderate comments" case.
I agree. I think that there's an argument that AirBnB is a "market maker" rather than a passive advertiser; that, without AirBnB, there is no business. As such, it's not the message board "provider of information services" covered by Section 230.
However, a number of courts have disagreed when it comes to Ebay, which is a not too-dissimilar service.
The reason we don't want ISDS in our trade agreements is that we don't want to give up our government's ability to change economic conditions in our country to the perceived detriment of foreign investors.
That said, if the purpose of a trade agreement is to encourage foreign investment, restrictions on what a country can do to make itself less attractive to foreign investment are reasonably part of the negotiation.
ISDS as a concept at least originally had "banana republics" in mind, places where the country might up and expropriate everything tomorrow and owns the courts so there's no recourse there. Of course, since you can't just say in a bilateral trade agreement, "this is only for you countries run by dictators or populist autocrats with limited rule of law," it got applied to everyone. And then it got bigger.
"Prior restraint" is a First Amendment thing, as I understand it. Marketing does sometimes raise a free speech question but if you know someone's going to sell your infringing product, it makes sense for the court, if it has injunction power at all, to enjoin the sale before it's even attempted.
There's a federal standard for temporary restraining orders following ex parte proceedings, so sometimes that's OK, at least under current law.
I am not an expert in unfair competition law, so I put this to the comment-goers here: stripping out all the international issues and the importance of CES to the industry, if this was the Fall Midwestern Carpet Show and Carpet-o-Rama was trying to enjoin CarpetMonger from selling Carpet-o-Rama's patented mid-pile shag, should Carpet-o-Rama have the right to get a judge to shut down CarpetMonger's booth?
As a matter of pure fairness, I'm thinking maybe a judge does have that power, because it prevents the infringer from profiting.
Not at all; there's no effort by the state to treat in-state commerce differently than cross-state commerce without the permission of the federal government.
You might be thinking of the Supremacy Clause, if something in the federal sports betting laws preempted state law in this matter, but that's not the case with gambling at current -- both states and the federal government get to criminalize it to whatever extent they desire.
I focus on this seemingly pedantic point because I really think we need to divide the question between A) Does, in fact, NY law prohibit FanDuel, etc.? and B) Regardless of whether NY law does, should it?
The (B) question is easy. Either you are in favor of gambling restrictions, or you aren't. But your answer to (B) doesn't change what the New York state and regulatory bodies actually say about it.
The (A) question is highly technical and requires us to get into the weeds of N.Y. gaming law. Before Schneiderman's office filed suit, they all did a bunch of research so that there was at least a reasonable legal argument that FanDuel, etc. were illegal under N.Y. law as it currently stands. Maybe the Court of Appeals will disagree, but without looking closely at what the actual prohibitions are in the law and regulatory codes, I have to believe that the AG's office thinks they have an argument with a reasonable chance of convincing the judges on the Court of Appeals.
And, of course, if the Court of Appeals so rules, whether or not we think it makes any sense whatsoever, it is the law. It might be bad law, but it is.
The question of whether FanDuel and similar are "gambling" under state law depends on what the state law says, and the article doesn't have a link to the N.Y. state statutes in question. This is kind of a big deal.
If the argument here is that sports betting shouldn't be regulated, I don't have much of an argument with that. But the argument that commercial sports betting FanDuel/Draft Kings style isn't regulated depends on what the statute says, and I strongly suspect in N.Y. it's a too-cute reading of the law.
I'm not spending my day on clumsy legislative search engines, but a brief search of the NY State official code seems to say N.Y. Racing, Pari-Mutuel Wagering and Breeding Law 1367 is the appropriate code. As I read it, the law basically bans sports betting unless (A) federal law changes, or (B) N.Y. state passes appropriate regulations.
If this is the law, I think Schneiderman's right from the point of "what the law says" (which should always be considered separately from "what the law should be in a perfect world"). There isn't really an exception for much of anything sports betting-wise in N.Y., which makes sense as N.Y. loves to regulate things.
If I'm wrong, I'd love to know which is the actual state law at issue so we can talk intelligently about what the "fantasy sports" exception actually is in N.Y. and why FanDuel, etc. are in it.
The NY proceeding is about collecting the judgment. The ISDS proceeding is about the judgment itself.
The ISDS proceeding is basically an international law tribunal saying, "Ecuador, your courts screwed up, go fix it." The ISDS proceeding is against Ecuador to change its own laws and policies.
However, the NY case doesn't challenge Ecuador's ability to levy massive money judgments in its own courts. If Chevron had a lot of assets in Ecuador, the N.Y. court wouldn't have any legal basis to stop them from being confiscated to satisfy the judgment. However, the N.Y. court can say, as a matter of U.S. law, that the judgment is basically an arbitrary attempt to steal stuff from a multinational corporation and therefore Ecuador can't expect U.S. courts to order Chevron to pay the judgment.
Actually, no. Donzinger's working on contingency, so unless Chevron pays up, he's out millions (or millions of other people's money; there's some interesting litigation financing here as well).
Nothing that happened in New York has anything to do with ISDS.
Yes, Chevron did go to an ISDS tribunal as well, but the New York case is in a regular U.S. court, not a weird international arbitration body. Like the suit over Argentina's sovereign debt (also in a NY court), this is basically a suit over whether anybody connected to the U.S. should help Ecuador collect against Chevron.
Whether or not TPP or TTIP are ratified, that kind of legal case is still good in cases like this.
I think Nestle has a non-frivolous case, but I agree with you that the bars are different-looking (especially the bar shown in the linked article) because there is a difference in what the law IS, and what the law SHOULD BE. I think Mr. Geigner does the reader a disservice by not recapping, as is done often elsewhere on TechDirt,that the law is contrary to the author's opinion but is also, in the author's opinion, deeply stupid.
In a perfect world, we'd be able to quantify exactly what point something moved into trade dress infringement, setting it maybe to 95+%, and only allow suits when something crossed that line. Under a perfect world test, no, those bars aren't the same.
But we're not in a perfect world. There are lots of court decisions out there on colors and shapes and positioning that make this issue pretty fuzzy, and the bars shown in the TechDirt post are close enough that, were I to use the judgment entrusted to me by several states' bars to practice law, I would not say that they are so obviously different that a suit would be frivolous, because there's a history of prior successful cases in that gray area.
It should not be surprising that insurance companies do not want to pay to defend their clients to the extent that they'd rather scare them off of doing anything than admit, "okay, your view of the law is probably right, and as long as you keep paying your premiums we have to pay a lawyer possibly to take it to a federal appellate court to defend it."
Oh, right, this serves the corporate overlords interests, so of course, NOW they care about the "spirit" of the law.
You can make the argument that the Supreme Court, selected primarily from the most politically striving of the elitest part of the elite legal class, has too much sympathy for people in the top 1% of wealth and power like themselves, and don't really understand what "the little guy" feels. This is certainly true to some extent, but it's impossible to remedy as when you make someone an elite, they tend to preserve their interests as an elite.
However, the Supreme Court is not bought by "corporations," whatever that means. Looking over all the decisions the Court makes, they decide things based on their view of the law, which is a definite bias but doesn't map exactly to either platform of the major political parties.
As part of my job, I have to follow the Supreme Court on the cases nobody who isn't a "corporation" cares about. At my job, the biggest Supreme Court case today was Fifth Third Bancorp v. Dudenhoffer, about whether people who get screwed by their employee stock ownership plans get to sue their employers when the company did something bad and the stock goes down but the company doesn't completely dissolve.
Most of the federal appeals courts said no. All the corporate defense lawyers wanted the answer to be no. The Supreme Court said, yes, the little guy can sue.
They said the same thing on Monday when the court said that Halliburton (can you get more "corporate overlord" than Halliburton?) can be sued by its shareholders for lying about its corporate prospects. The corporate defense lawyers were hoping the Supreme Court would kill "meritless" securities class actions dead. But they didn't.
Sometimes the Court comes out for the powerful. But it's not because they're "bought."
Laws mean nothing without a person to interpret them.
The Constitution and the Public Laws of the United States are not magic words.
I don't mean that facetiously, I just mean to say that the Constitution only protects a right to the extent that enough of us agree that a right exists. For example, in the mid-1980's, same-sex intimacy was absolutely unprotected by the Constitution, despite a decent argument that it should be. In 2003, enough of us agreed that the underlying principles of the Constitution did, in fact, apply to those relationships.
There is no way to avoid this ebb and flow of rights unless we let a computer decide all our cases; even then, someone has to program its basic principles, and how libertarian/pragmatic/literal/equitable should such a computer be?
So, yeah, the Supreme Court's argument in the Aereo case was a lot like a teenager's parent saying, "you think that you did something clever, but we think that's still against the rules," but the way the legal system works, that's to be expected. If you want, I can give you the 1L pseudohistory lesson as to why it works that way, but these kind of "common sense but not the literal word of the law" judgments are baked into the American legal system.
The Court basically said that this was about broadcast TV and they'll leave the cloud to another day. Based on the fact that they spent pages at the end of the majority opinion reiterating that, I would say that this case offers little help regarding services that are not dealing with broadcast TV.
If you think the powerful always win, you didn't read the other two cases today from the Supreme Court:
1) Riley: cops can't just go through your smartphone without a warrant;
2) Dudenhoffer: Employee stock ownership plans don't get to screw their employees just because they only invest in the employer's stock.
The Supreme Court has biases based on the fact that they're all lawyers and most worked for the government, but except for abortion and a few other obviously political issues, those biases are a lot more idiosyncratic than people like to think.
Read the decision. Am a lawyer familiar with cyberlaw. I am not torn up that Aereo lost.
I would summarize the majority and the dissent as follows:
Majority (Breyer): "Back in the early days of cable TV, we said that broadcast retransmission didn't violate the Copyright Act. Congress rewrote the law to say it did. We take that to mean that, if you're retransmitting, no matter the technology, Congress doesn't want you to."
Dissent (Scalia): "If Congress wrote the law so that someone could violate the spirit but not the letter with new technology, that's not the Court's problem."
I am not offended by the majority's reasoning. Everyone admits that Aereo is the way it is at least in part because it seemed to be on the non-infringing side of the law, but if you're not a libertarian (none of the Supreme Court is), Aereo seems a little "too clever by half"; basically designed in the hope that the Court would choose the letter of the law over the spirit.
I understand the practical arguments that many folks are making, that AirBnB's benefits and efficiency stem from not being regulated as a hotel, but I just can't get angry about it, for the following reasons:
1) If you own property on the island of Manhattan that you have the right to sublet without breaking the law or the terms of your lease/co-op agreement, you are not "the little guy" as we understand that term. "The little guy" is the immigrant non-veteran who can't start a food stall because NYC won't give out any permits, or the guy who can't get a yellow cab because the medallions cost over a million bucks. You are a person who owns real estate with a value equal to multiple single-family homes in the midwest.
Yeah, people in the 1% are people too, but when we're talking about "big corporations" vs. AirBnB owners, in NYC this is more like when some multimillionaire doesn't like how she has to add low-flow toilets when renovating her $26M historic brownstone. Yeah, low-flow toilets are stupid and cost more. No, I don't feel that sorry about your burden of compliance with a stupid regulation.
You could argue that, if we're talking about a one-bedroom or studio in certain parts of the city, compliance costs relative to the income of the owner become more proportionally burdensome, but my point is still that, if you're an AirBnB landlord in NYC, you're playing (even at a low level) a rich man's game.
2) Complying with NYC regulations sucks, to be sure, but the voters of the City and State, through their democratic processes, WANT to be regulated like this. Rent control is undying. The "pro-business" nanny mayor was replaced with a "pro-worker" nanny mayor. Laws to "do something" about a major crisis get passed really quickly, and these guys get reelected.
Sure, there's some industry-related regulatory capture, but there's also a lot of union and community-based voting bloc regulatory capture where these regulations represent the interests of decent-sized groups of actual voters.
So, unless we want democracy to be subordinate to anarcho-capitalist principles in all instances, we have to accept that sometimes, a perfectly good business model will have to bend to regulations we think are misguided because we are not the average NY voter. If we voted in that jurisdiction, we either lost that election or made a compromise because the guy less likely to support dumb regulation also hated gay people or something.
3) I do not understand why, if you rent out your place for a short period of time, NY doesn't get to collect hotel tax. Either at the individual level or at the point where AirBnB aggregates all those rooms, hotel tax or some other real estate tax has to apply. Just because something's new, clever, and convenient does not mean that taxes cannot be imposed, even if those taxes make that thing less clever or convenient (see my point above on how the law is not subordinate to anarcho-capitalist principles).
And if thousands of people are avoiding tax (or one company is avoiding thousands of taxable transactions), the NY attorney general has a right to subpoena information allowing for collection of that tax. That's pretty standard in how taxes work.
On the post: Appeals Court Doubles Down On Dangerous Ruling: Says Website Can Be Blamed For Failing To Warn Of Rapists
Re: General knowledge vs Specific
The complaint goes so far to allege that the current owners of the website sued the prior owners for not telling them about these particular rapists being serial users of the website before selling the site.
I think the lawyer who drafted the plaintiff's complaint was a pretty smart guy; this was the best-pled case to argue that this was a "post a picture of the known dangerous person in your establishment" case rather than a "moderate comments" case.
On the post: Cities Rushing To Restrict Airbnb Are About To Discover That They're Violating Key Internet Law
Re: There are some differences
However, a number of courts have disagreed when it comes to Ebay, which is a not too-dissimilar service.
On the post: Chevron Lobbied For Corporate Sovereignty Rights In TAFTA/TTIP To Act As 'Environmental Deterrent'
I'm not a fan of ISDS, but...
That said, if the purpose of a trade agreement is to encourage foreign investment, restrictions on what a country can do to make itself less attractive to foreign investment are reasonably part of the negotiation.
ISDS as a concept at least originally had "banana republics" in mind, places where the country might up and expropriate everything tomorrow and owns the courts so there's no recourse there. Of course, since you can't just say in a bilateral trade agreement, "this is only for you countries run by dictators or populist autocrats with limited rule of law," it got applied to everyone. And then it got bigger.
On the post: Why Is The Federal Government Shutting Down A CES Booth Over A Patent Dispute?
Re: Re: Interesting Unfair Competition Question
There's a federal standard for temporary restraining orders following ex parte proceedings, so sometimes that's OK, at least under current law.
On the post: Why Is The Federal Government Shutting Down A CES Booth Over A Patent Dispute?
Interesting Unfair Competition Question
As a matter of pure fairness, I'm thinking maybe a judge does have that power, because it prevents the infringer from profiting.
On the post: NY Attorney General Shuts Down Daily Fantasy Sports Sites, Because Grandstanding
Re: Commerce Clause
You might be thinking of the Supremacy Clause, if something in the federal sports betting laws preempted state law in this matter, but that's not the case with gambling at current -- both states and the federal government get to criminalize it to whatever extent they desire.
On the post: NY Attorney General Shuts Down Daily Fantasy Sports Sites, Because Grandstanding
Re: Re: They brought this on themselves with insider trading
I focus on this seemingly pedantic point because I really think we need to divide the question between
A) Does, in fact, NY law prohibit FanDuel, etc.?
and
B) Regardless of whether NY law does, should it?
The (B) question is easy. Either you are in favor of gambling restrictions, or you aren't. But your answer to (B) doesn't change what the New York state and regulatory bodies actually say about it.
The (A) question is highly technical and requires us to get into the weeds of N.Y. gaming law. Before Schneiderman's office filed suit, they all did a bunch of research so that there was at least a reasonable legal argument that FanDuel, etc. were illegal under N.Y. law as it currently stands. Maybe the Court of Appeals will disagree, but without looking closely at what the actual prohibitions are in the law and regulatory codes, I have to believe that the AG's office thinks they have an argument with a reasonable chance of convincing the judges on the Court of Appeals.
And, of course, if the Court of Appeals so rules, whether or not we think it makes any sense whatsoever, it is the law. It might be bad law, but it is.
On the post: NY Attorney General Shuts Down Daily Fantasy Sports Sites, Because Grandstanding
Need to see statute before judging
If the argument here is that sports betting shouldn't be regulated, I don't have much of an argument with that. But the argument that commercial sports betting FanDuel/Draft Kings style isn't regulated depends on what the statute says, and I strongly suspect in N.Y. it's a too-cute reading of the law.
I'm not spending my day on clumsy legislative search engines, but a brief search of the NY State official code seems to say N.Y. Racing, Pari-Mutuel Wagering and Breeding Law 1367 is the appropriate code. As I read it, the law basically bans sports betting unless (A) federal law changes, or (B) N.Y. state passes appropriate regulations.
If this is the law, I think Schneiderman's right from the point of "what the law says" (which should always be considered separately from "what the law should be in a perfect world"). There isn't really an exception for much of anything sports betting-wise in N.Y., which makes sense as N.Y. loves to regulate things.
If I'm wrong, I'd love to know which is the actual state law at issue so we can talk intelligently about what the "fantasy sports" exception actually is in N.Y. and why FanDuel, etc. are in it.
On the post: Chevron's Star Witness In $9.5 Billion Corporate Sovereignty Case Admits He Lied
Re: Re: We're not talking about ISDS here
The ISDS proceeding is basically an international law tribunal saying, "Ecuador, your courts screwed up, go fix it." The ISDS proceeding is against Ecuador to change its own laws and policies.
However, the NY case doesn't challenge Ecuador's ability to levy massive money judgments in its own courts. If Chevron had a lot of assets in Ecuador, the N.Y. court wouldn't have any legal basis to stop them from being confiscated to satisfy the judgment. However, the N.Y. court can say, as a matter of U.S. law, that the judgment is basically an arbitrary attempt to steal stuff from a multinational corporation and therefore Ecuador can't expect U.S. courts to order Chevron to pay the judgment.
On the post: Chevron's Star Witness In $9.5 Billion Corporate Sovereignty Case Admits He Lied
Re: Lawyers win
On the post: Chevron's Star Witness In $9.5 Billion Corporate Sovereignty Case Admits He Lied
We're not talking about ISDS here
Yes, Chevron did go to an ISDS tribunal as well, but the New York case is in a regular U.S. court, not a weird international arbitration body. Like the suit over Argentina's sovereign debt (also in a NY court), this is basically a suit over whether anybody connected to the U.S. should help Ecuador collect against Chevron.
Whether or not TPP or TTIP are ratified, that kind of legal case is still good in cases like this.
On the post: Nestle Sues Fit Crunch Over Identical Trade Dress That Isn't Remotely Identical
Re: Re: Re: Re: I buy it
In a perfect world, we'd be able to quantify exactly what point something moved into trade dress infringement, setting it maybe to 95+%, and only allow suits when something crossed that line. Under a perfect world test, no, those bars aren't the same.
But we're not in a perfect world. There are lots of court decisions out there on colors and shapes and positioning that make this issue pretty fuzzy, and the bars shown in the TechDirt post are close enough that, were I to use the judgment entrusted to me by several states' bars to practice law, I would not say that they are so obviously different that a suit would be frivolous, because there's a history of prior successful cases in that gray area.
On the post: The Worst Legal Advice Ever, Presented By A Clueless Blogger For An Insurance Company
Misleading in the Service of Insurance
On the post: Supreme Court Uses The Bizarre 'Looks Like A Cable Duck' Test To Outlaw Aereo
Re: Re: Not That Bothered
You can make the argument that the Supreme Court, selected primarily from the most politically striving of the elitest part of the elite legal class, has too much sympathy for people in the top 1% of wealth and power like themselves, and don't really understand what "the little guy" feels. This is certainly true to some extent, but it's impossible to remedy as when you make someone an elite, they tend to preserve their interests as an elite.
However, the Supreme Court is not bought by "corporations," whatever that means. Looking over all the decisions the Court makes, they decide things based on their view of the law, which is a definite bias but doesn't map exactly to either platform of the major political parties.
As part of my job, I have to follow the Supreme Court on the cases nobody who isn't a "corporation" cares about. At my job, the biggest Supreme Court case today was Fifth Third Bancorp v. Dudenhoffer, about whether people who get screwed by their employee stock ownership plans get to sue their employers when the company did something bad and the stock goes down but the company doesn't completely dissolve.
Most of the federal appeals courts said no. All the corporate defense lawyers wanted the answer to be no. The Supreme Court said, yes, the little guy can sue.
They said the same thing on Monday when the court said that Halliburton (can you get more "corporate overlord" than Halliburton?) can be sued by its shareholders for lying about its corporate prospects. The corporate defense lawyers were hoping the Supreme Court would kill "meritless" securities class actions dead. But they didn't.
Sometimes the Court comes out for the powerful. But it's not because they're "bought."
On the post: Supreme Court Uses The Bizarre 'Looks Like A Cable Duck' Test To Outlaw Aereo
Re: Re: Not That Bothered
Laws mean nothing without a person to interpret them.
The Constitution and the Public Laws of the United States are not magic words.
I don't mean that facetiously, I just mean to say that the Constitution only protects a right to the extent that enough of us agree that a right exists. For example, in the mid-1980's, same-sex intimacy was absolutely unprotected by the Constitution, despite a decent argument that it should be. In 2003, enough of us agreed that the underlying principles of the Constitution did, in fact, apply to those relationships.
There is no way to avoid this ebb and flow of rights unless we let a computer decide all our cases; even then, someone has to program its basic principles, and how libertarian/pragmatic/literal/equitable should such a computer be?
So, yeah, the Supreme Court's argument in the Aereo case was a lot like a teenager's parent saying, "you think that you did something clever, but we think that's still against the rules," but the way the legal system works, that's to be expected. If you want, I can give you the 1L pseudohistory lesson as to why it works that way, but these kind of "common sense but not the literal word of the law" judgments are baked into the American legal system.
On the post: Supreme Court Uses The Bizarre 'Looks Like A Cable Duck' Test To Outlaw Aereo
Re: Cloud etc.
On the post: Supreme Court Uses The Bizarre 'Looks Like A Cable Duck' Test To Outlaw Aereo
Re: Re: Not That Bothered
1) Riley: cops can't just go through your smartphone without a warrant;
2) Dudenhoffer: Employee stock ownership plans don't get to screw their employees just because they only invest in the employer's stock.
The Supreme Court has biases based on the fact that they're all lawyers and most worked for the government, but except for abortion and a few other obviously political issues, those biases are a lot more idiosyncratic than people like to think.
On the post: Supreme Court Uses The Bizarre 'Looks Like A Cable Duck' Test To Outlaw Aereo
Not That Bothered
I would summarize the majority and the dissent as follows:
Majority (Breyer): "Back in the early days of cable TV, we said that broadcast retransmission didn't violate the Copyright Act. Congress rewrote the law to say it did. We take that to mean that, if you're retransmitting, no matter the technology, Congress doesn't want you to."
Dissent (Scalia): "If Congress wrote the law so that someone could violate the spirit but not the letter with new technology, that's not the Court's problem."
I am not offended by the majority's reasoning. Everyone admits that Aereo is the way it is at least in part because it seemed to be on the non-infringing side of the law, but if you're not a libertarian (none of the Supreme Court is), Aereo seems a little "too clever by half"; basically designed in the hope that the Court would choose the letter of the law over the spirit.
On the post: Airbnb Under Pressure, Agrees To Hand Over Data To NY's Attorney General
Sympathetic to the AG
1) If you own property on the island of Manhattan that you have the right to sublet without breaking the law or the terms of your lease/co-op agreement, you are not "the little guy" as we understand that term. "The little guy" is the immigrant non-veteran who can't start a food stall because NYC won't give out any permits, or the guy who can't get a yellow cab because the medallions cost over a million bucks. You are a person who owns real estate with a value equal to multiple single-family homes in the midwest.
Yeah, people in the 1% are people too, but when we're talking about "big corporations" vs. AirBnB owners, in NYC this is more like when some multimillionaire doesn't like how she has to add low-flow toilets when renovating her $26M historic brownstone. Yeah, low-flow toilets are stupid and cost more. No, I don't feel that sorry about your burden of compliance with a stupid regulation.
You could argue that, if we're talking about a one-bedroom or studio in certain parts of the city, compliance costs relative to the income of the owner become more proportionally burdensome, but my point is still that, if you're an AirBnB landlord in NYC, you're playing (even at a low level) a rich man's game.
2) Complying with NYC regulations sucks, to be sure, but the voters of the City and State, through their democratic processes, WANT to be regulated like this. Rent control is undying. The "pro-business" nanny mayor was replaced with a "pro-worker" nanny mayor. Laws to "do something" about a major crisis get passed really quickly, and these guys get reelected.
Sure, there's some industry-related regulatory capture, but there's also a lot of union and community-based voting bloc regulatory capture where these regulations represent the interests of decent-sized groups of actual voters.
So, unless we want democracy to be subordinate to anarcho-capitalist principles in all instances, we have to accept that sometimes, a perfectly good business model will have to bend to regulations we think are misguided because we are not the average NY voter. If we voted in that jurisdiction, we either lost that election or made a compromise because the guy less likely to support dumb regulation also hated gay people or something.
3) I do not understand why, if you rent out your place for a short period of time, NY doesn't get to collect hotel tax. Either at the individual level or at the point where AirBnB aggregates all those rooms, hotel tax or some other real estate tax has to apply. Just because something's new, clever, and convenient does not mean that taxes cannot be imposed, even if those taxes make that thing less clever or convenient (see my point above on how the law is not subordinate to anarcho-capitalist principles).
And if thousands of people are avoiding tax (or one company is avoiding thousands of taxable transactions), the NY attorney general has a right to subpoena information allowing for collection of that tax. That's pretty standard in how taxes work.
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