It is clearly not currently against the law, given that this law is currently being written to bar doing so only for judges.
However, the first amendment is not blanket protection on any arbitrary speech. One could make the same argument about fighting words: the 1st amendment prohibits the government from restricting speech, and yet Chaplinsky v. New Hampshire affirmed a specific type of speech that is not protected. Obscenity is speech, and yet we have the Miller test. Clearly, the Supreme Court has affirmed that the government can and should limit speech in narrow ways based on weighing the rights of the individual versus the good of society. Whether or not something is constitutional or unconstitutional, not just in regards to speech, can be dependent upon the court viewing existing law in a new light. (From Baker v. Nelson to Obergefell v. Hodges.)
I am not a lawyer, so none of these statements are me asserting what the law IS, but questioning what the law should be. Should the publication of factual information be allowed cart blanche? Passwords (and/or their hashes), social security numbers, bank account numbers, lock combinations, security question answers, encryption keys? Those are all factual information. As you point out, the act of using that information to commit crimes ranging from identity theft to robbery would be, well, criminal, so why would the careless or malicious publisher of the critical information (without which the crime would not be possible) not be an accessory?
Suppose I had published the factual home address of Richard Jewell during the fervor of the 1996 Olympic bombing and someone else had used that information to perpetrate a violent attack. Of course, a reasonable person may conclude that this is incitement to imminent lawless action and therefore not constitutionally protected speech. (Brandenburg v. Ohio) If I could have, however, successfully avoided any punishment by claiming protection of the first amendment, then ipso facto that’s a flaw of the first amendment.
I’m a bit confused as to the argument here. How is it “pretty clearly unconstitutional” to bar the publication of personal information of other people without their consent, or at least date of brith specifically? Is it unconstitutional to bar the publication of home addresses, or social security numbers? Is doxing protected by the first amendment?
If you’re advocating for the first amendment to protect the nonconsensual disclosure of any privileged personal information, then you’re “pretty clearly” a lunatic. Can we out closeted LGBT people to their families? (Or their larger communities?) Can we tell people where exonerated defendants in high profile cases live? Can we enable the identity theft of our political adversaries? Given that you’re not a lunatic, then we seem to agree that there must be some line between what information is acceptable to publish and what is not.
If home addresses are off limits, then full date of birth should be as well: multiple states, including Florida, Pennsylvania, and New York, provide online voter registration lookup applications that take a zip code, a county, a name, and a DOB. Knowing where a judge works narrows down zip code and county to a few options, and the name is already known. These lookups provide you with information like your voting precinct and registered address. Therefore, in many scenarios, providing a DOB empowers people to find a home address. We can of course point out that such low security applications are a nightmare that should not exist, but that doesn’t negate the fact that they exist and are readily usable by nefarious actors. DOB, regrettably, has been used as critical identifying information so widely that it shouldn’t be open season to bandy them about under the guise of free speech.
Of course, I will point out the obvious, which is that this protection should not be unique to judges.
That’s specifically the XBox Cloud Gaming Beta, which is available to Game Pass users. XBox Game Pass’s main service still relies on downloading a game the old fashioned way.
I’m curious why you think Playstation is the home of the series’ most dedicated fans. Arena and Daggerfall are obviously PC exclusives, Morrowind was a Microsoft exclusive, Oblivion only came to PS3 a year after the 360 release, and Skyrim has been ported to every device under the sun. (The PS4 port even had inferior modding support to the XBOne version.) There’s no special connection between Sony and Elder Scrolls.
Sony is no stranger to this behavior. Remember when Street Fighter V skipped XBox because Sony funded its development? Nintendo is guilty too, in case we’ve forgotten about Bayonetta 2. (Although in that case, the developer has stated it was a question of the game being Nintendo exclusive or not existing at all. Whether that’s true or not, of course, is up for debate.)
This is no different than Insomniac: a previously third party developer that was bought up by Sony and now only makes Playstation exclusives. Good luck getting a Sunset Overdrive 2 now. Of particular note is the Spiderman series, a franchise which almost certainly has diehard fans on every console. Yet Sony has the rights to it, and therefore it’s Playstation exclusive. (To the point where Spiderman is Playstation exclusive in the non-exclusive Marvel’s Avengers!) I’m down for criticizing bad behavior in the videogame industry, but Sony is the market leader in anticompetitive bullshit. They were, after all, the staunchest opponents of crossplay for a long time.
Well, the class-based civil judicial system is an issue in and of itself. Legislating contract language wouldn’t really help: the wealthy can straight up break contracts and still not lose in court because you can’t afford to sue them.
I think this boils down to a philosophical discussion about whether or not a contract needs to be enforceable to be a contract. I don't really care one way or the other. Here, by contracts, I mean documents which self-proclaim themselves to be contracts, regardless of if they have any legal merit. If we want to define contracts to only be those documents which are both legally binding and enforceable, then that's a different definition.
I don't necessarily disagree with your maxim as being good practice for law, but it's fairly obvious that in the US contracts function relatively independently of whether or not they follow this principle. For example: NFL players can be waived pretty much any time and have their contracts voided, while they have no similar right to leave a team and join another at their convenience.
My landlord can evict me before the end of my lease, but I can't necessarily leave of my own volition without facing significant financial penalties. (In some states, the landlord does not even have a duty to re-rent after I leave and can continue billing me the full amount.)
Whether or not a judge or jury would agree that a contract is fair or unfair is irrelevant if one party cannot afford to pay for a civil suit to make that determination. A contract can only be fair and equitable to both parties if the legal system affords the same opportunities for legal challenges to both parties, but that is simply not how things work here. Money talks. So regardless of if it's a good principle, it's clearly not a principle that's true of the US legal system.
What I'm saying is that it's prior restraint for the government to say, "Hey, Capture One, you're not allowed to say that you'll come into someone's house to inspect their installation." It's NOT prior restraint for the government to say "You're not allowed to go into someone's house to inspect their installation, and you can't make the sales of your software contingent upon that, so this EULA is not enforceable."
Capture One can say they will, and they can call that a contract, but that doesn't mean that they have the legal right to follow through on what is said inside, or that it is a contract in a legal sense. Just like a lawyer can legally send you a threatening letter with a gross mischaracterization of what the law says. (For example, a lawyer sending a North Face trademark letter.)
There's no real problem with this in my opinion. The problem would be if this is legally enforceable in any jurisdiction, which even then it's an issue of the law being a disgusting, broken mess rather than an issue of what is allowed to be written into a contract.
Getting into the business of legislating what you may or may not put in a contract is prior restraint. It seems to me that determining whether a contract is enforceable is the proper place to resolve issues like this rather than restricting what can even be said in a contract.
It's illegal (also known as fraud) to get someone to sign a contract which is intentionally misleading or otherwise attempting to trick someone on purpose. In this instance, it's clear that your intention is to steal people's homes by selling them software with a purposefully obtuse contract you know they will not read. That's just fraud. Contracts are only legal and binding if they are, well, legal.
But that's a problem with the legal system writ large, a prosecutor and LEA can basically do whatever they want until they hit a courtroom. This isn't unique to felony murder or felony manslaughter. Which is definitely a rather large problem, that our system has no fear of punishment that such willful stupidity can continue en masse because of rampant abuse of qualified immunity, but again that's not a problem of felony murder itself. As you say, we need more aggressive sanctions and perhaps removal over bullshit like this, but we don't have it, and so it continues.
As I mentioned before, I'm not here to defend felony murder as a rabid supporter of it. If there's an accurate and well-informed discussion taking place about why it's bad, then I think that's great. But we shouldn't base our decisions on mischaracterizing hyperbole. Regardless of whether it's good to charge someone with a crime they took no intentional part in, there's still a clear distinction between that and charging someone with a crime because they were present at the scene.
I always find it amusing when the conservatives cry about Google/Youtube, Twitter, and Facebook censoring them because they're absolutely infesting all three platforms. Twitter is ground zero for every culture war they're trying to make a thing, and the only people who use Facebook anymore are old people screaming at the younguns to get off their lawn. I don't even watch political videos on Youtube, and my recommendations are chalk full of varying degrees of right-wing content, Fox News and all its mongrel siblings pasted everywhere.
To be fair, this is definitely, without fail, no doubt about it, the first time the Republicants have lied about a problem that doesn't exist and then tried to create "solutions" to the "problem" that just end up infringing on everyone's rights.
I mean, I'm not a proponent or detractor of felony murder. I don't have a significant opinion either way. I could be convinced that it serves a purpose (a much narrower purpose than its current usage), or I could be convinced that any utility it might have can be carried by other, more reasonable and less exploitable statutes.
The only thing I care about is that the discussion surrounding it is accurate, rather than hyperbolic and misleading rhetoric that makes it sound worse than it is.
That's because this article was written by someone who is clearly against felony murder on principle, and therefore their explanation of how it works is inherently going to paint it in a bad light. Under its intended usage, felony murder is NOT "the person's presence at a crime scene makes them as culpable as someone who actually committed the crime." Whether or not you agree with the assertion that felony murder is bad doctrine, this is a strawman. This isn't what felony murder does.
Felony murder says that if you engage in dangerous, illegal activities, then you do so knowing that someone could very well die in the commission of said activities. Therefore, if someone dies due to your actions, you're responsible. For example, if a bank robber drops his gun, and it discharges, thereby killing a teller, that's felony murder. It's felony murder for the getaway driver in the car because they were directly involved in the initial illegal activity of making the actual robber feel secure enough to walk in and start waving a gun around. Don't want to be charged with felony murder, don't agree to be involved in other crimes that could get someone killed.
If someone engaged in target shooting dropped a gun and it killed someone, that's clearly not murder. But the act of entering a bank with a gun with the intent to point it at people and threaten them assumes the risk that someone is going to end up dead. Again, whether or not you agree with this as being good legal principle is fine, but there's actually some logical basis behind it.
Now, in this specific case, clearly we have a qualified immunity situation where, even if somewhere there's a kernel of rational thought that went into the basic idea, prosecutors, judges, and cops have completely bastardized it into some horrific monster of stupidity. Clearly this situation (as rightly pointed out by the judge) is not the purpose of felony murder statutes. It's a horrific misapplication of the law by the prosecutor. But the misapplication of a law is something that can be fixed without scrapping the entire thing.
Billy Mitchell has been proven guilty. An in-depth technical analysis proved that the evidence of some of his records was performed outside the scope of the established rules. Mitchell is now "appealing" through the court system, which is part of the job of the courts, so that's fine. But he has been investigated and found guilty by the authority in charge of adjudicating such disputes. Now, you or he can argue that there were flaws in this investigation, and that's what Mitchell is doing through this lawsuit, but he's still been proven guilty. Much like a convicted felon who is appealing and gets their chance to argue why their trial should be overturned, they were still proven guilty.
It's been over a decade since the scores were allegedly set, there's no way anyone knows where the machine is, and even if they do, there's no chance there's a chain of custody ensuring that it's in exactly the state it was left after the records were set.
He doesn't need to provide it to the court at this stage, but for it to even be feasible to rule that TG's statement was made with actual malice, he needs to have provided it (or offered to provide it and they rejected it) to TG prior to the court case even beginning. You can't defame someone if they only disprove your statements during the defamation case and not before: if all of the evidence available to you at the time of making your statement led you to your conclusions honestly, then even if they are false, they do not constitute defamation. He has never led TG to believe in any way that their technical analysis is flawed. He has only ever offered a conspiracy theory that would be consistent with him not cheating, but clearly TG didn't find that credible and therefore reached the only reasonable conclusion. That's not actual malice, which is the standard Mitchell needs to meet.
Even just considering the court case in a vacuum, you're right that he does not need to prove the veracity of his statements at this stage. But he does need to provide an argument which could be successful at a later stage of the trial and would prove that TG acted out of reckless disregard for the truth.
If Mitchell were to say, "I can prove that the tapes are faked using evidence I will bring in court" or "I can prove that the tapes are legit and not recorded on MAME during the trial," then according to the standards of the court, evidence supporting the plaintiff is assumed to be true for the basis of anti-SLAPP proceedings. That would be fine: it's an argument that could logically lead to the conclusion that TG willfully disregarded evidence refuting their claims.
But Mitchell is not claiming this at all, nor is he asserting that he can do so. At no point was he able to cast doubt on the accuracy of TG's technical findings prior to publication, and he has made no indication that that will change if this goes to trial. (Even if it did, as I pointed out before, only providing that evidence for the first time in court should exculpate TG from defamation, as they did not have access to that information at the time of their decision.) He provides two arguments, both of which suck: eyewitnesses back him up, and the aforementioned conspiracy theory.
The conspiracy theory is the better of the two, ironically, because if he could prove it, it might actually prove actual malice. But it's missing the crucial part where Mitchell even begins to outline his strategy for how he will prove it, or even argues that he will do so in court. He simply offers it up as an outlandish suggestion technically consistent with that facts: that is not an argument. He doesn't even claim that he can or will attempt to prove it. Crucially, he offers no explanation as to why TG should have believed it either, which would be necessary for a ruling of actual malice. After all, TG thoroughly analyzed the tapes frame-by-frame and saw no signs of edits or cutting consistent with this theory, so they have reason to believe that they are not part of an elaborate hit job on Billy Mitchell. Therefore the court should find that he cannot succeed with this argument at a later stage in the trial because Mitchell himself has not claimed he will prove it. He merely states that it is possible, which is not sufficient.
The eyewitness accounts are completely irrelevant because of the nature of TG's evidence: all ten children claim that none of them ate the cookie, but there's a cookie missing. Sure, MAYBE a mouse came out and ate it while none of the children noticed and left no trace, but it's not reckless disregard for the truth to think that that's bullshit and that at least one of the children is lying. TG doesn't need to interview them because nothing they say has any relevancy to whether or not TG's technical analysis of the tapes is correct, so it's not actual malice for them not to speak to these people. This is an argument that can't possibly succeed. (Well, it can, because judges say the darndest things, but it should not.)
The analysis of actual malice is somewhat disturbing. Who cares about witnesses when you have a technical analysis that Mitchell is incapable of disputing? The videos were either from MAME, or the tapes are modified. Mitchell has provided no footage which can pass the technical examination. Therefore, Mitchell has zero documentation to support his scores under Twin Galaxies' rules. Twin Galaxies (rightly) is of the opinion that eyewitness accounts are irrelevant in the face of hard data and science that supports their claims.
For them to act with actual malice in the form of reckless disregard for the veracity of their statements, then it must be the case that they disregarded Mitchell's conspiracy theory that the person who provided the tapes was out to get him. That's the only defense he has which actually has any bearing on discounting TG's findings. However, the judicial analysis doesn't really explain why it's "reckless disregard" for TG to not credit the outlandish conspiracy theory that someone with an axe to grind against Billy Mitchell managed to successfully alter the tapes in a way that successfully fulfilled his "master plan," but was also undetectable to a team performing an in-depth frame-by-frame analysis. Even if this was somehow managed, it should be clear to any reasonable observer that TG being fooled by an incredibly complex deception is not acting in actual malice.
By this logic, every news anchor not working for newsmax is susceptible to a defamation claim now for calling bullshit on the Kraken lawsuits. It didn't matter that they had data and audits to back up their stance: "An inference of actual malice may be made from their failure to investigate and reliance on biased sources." They didn't go out and interview every bogus person who filed a bogus affidavit, or interview Trump and co.'s own "experts." They only relied on biased sources who were against Trump's claims! Sue the pants off them!
But streamers are paying plenty of rent in the form of Twitch's cut: Streamers who make no money pay no rent, just like people who make no money pay no income taxes. Streamers who do make money are paying Twitch for the ability to do so, quite handsomely in most cases. To argue that it's different because Twitch is taking the money out before writing the check rather than asking for it back afterwards seems silly to me. Employees still pay social security tax even though that money is never in their bank account. It wouldn't make sense to say that someone paid no income tax because it was withheld from their paycheck rather than them paying it directly.
People don't have to pay up front to create something in Unreal Engine, either. But if your studio is a year into development into its game, having paid thousands of dollars to employees, freelancers, and software licensers, only to have Epic turn around and revoke your ability to use Unreal for no reason and with no warning, you'd rightfully be pissed. You could technically go write your own engine, or use another one, but both of those options would involve a truckload of extra time and expense.
No one here is saying Twitch doesn't have the right to do this. They have the right to make whatever moderation decisions they please. Just like the community has the right to pillory those decisions when they're objectionable.
The big problem with government in the modern age is that a majority of career politicians (at least in my anecdotal experience in the US, I’d love to see to see data on the subject) have degrees in non-technical fields like history, law, political “science,” etc. The closest they might get to a field that would give them even a solid background in math is economics.
This is all fine and dandy in 1890 or 1950, but in our increasingly technological society where math, computers, and science have become so ubiquitous, government is increasingly incapable of responding to modern challenges because politicians are woefully unprepared to even understand the problem, let alone solve it. They don’t understand the concept of something being mathematically impossible (just like they didn’t a century ago in Indiana during the Pi bill debacle), so to them tech people “just aren’t trying hard enough to find an answer, and if we legislate enough, they’ll be forced to work harder and they’ll find an answer for us.”
"There is a difference between 'laws I dislike' and 'laws that raise serious constitutional issues'. The Texas abortion law is one of the latter."
Absolutely this! Even the most violent pro-lifer/anti-choicer should be terrified of this law. It's the blueprint for the erosion of any civil right that the government decides that it wants to get rid of.
Freedom of the press no longer useful? Write a law letting anyone sue without standing over any potential liability from published material and immunize the plaintiff from potential damages even if they lose.
Want to get rid of gun rights? Let anyone sue a gun manufacturer or gun store for any connection to any violent shooting and immunize the plaintiff from potential damages.
Want to crack down on anti-vaccers? Write a law letting anyone sue without standing if they ever transmit the disease they refuse to be vaccinated against, and, you guessed, immunize the plaintiff from potential damages even if they lose.
Want to get rid of freedom of religion? Let anyone sue over any crime committed by someone who professes to have the same religion. Without standing and immunized against potential damages, of course!
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It is clearly not currently against the law, given that this law is currently being written to bar doing so only for judges.
However, the first amendment is not blanket protection on any arbitrary speech. One could make the same argument about fighting words: the 1st amendment prohibits the government from restricting speech, and yet Chaplinsky v. New Hampshire affirmed a specific type of speech that is not protected. Obscenity is speech, and yet we have the Miller test. Clearly, the Supreme Court has affirmed that the government can and should limit speech in narrow ways based on weighing the rights of the individual versus the good of society. Whether or not something is constitutional or unconstitutional, not just in regards to speech, can be dependent upon the court viewing existing law in a new light. (From Baker v. Nelson to Obergefell v. Hodges.)
I am not a lawyer, so none of these statements are me asserting what the law IS, but questioning what the law should be. Should the publication of factual information be allowed cart blanche? Passwords (and/or their hashes), social security numbers, bank account numbers, lock combinations, security question answers, encryption keys? Those are all factual information. As you point out, the act of using that information to commit crimes ranging from identity theft to robbery would be, well, criminal, so why would the careless or malicious publisher of the critical information (without which the crime would not be possible) not be an accessory?
Suppose I had published the factual home address of Richard Jewell during the fervor of the 1996 Olympic bombing and someone else had used that information to perpetrate a violent attack. Of course, a reasonable person may conclude that this is incitement to imminent lawless action and therefore not constitutionally protected speech. (Brandenburg v. Ohio) If I could have, however, successfully avoided any punishment by claiming protection of the first amendment, then ipso facto that’s a flaw of the first amendment.
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I’m a bit confused as to the argument here. How is it “pretty clearly unconstitutional” to bar the publication of personal information of other people without their consent, or at least date of brith specifically? Is it unconstitutional to bar the publication of home addresses, or social security numbers? Is doxing protected by the first amendment?
If you’re advocating for the first amendment to protect the nonconsensual disclosure of any privileged personal information, then you’re “pretty clearly” a lunatic. Can we out closeted LGBT people to their families? (Or their larger communities?) Can we tell people where exonerated defendants in high profile cases live? Can we enable the identity theft of our political adversaries? Given that you’re not a lunatic, then we seem to agree that there must be some line between what information is acceptable to publish and what is not.
If home addresses are off limits, then full date of birth should be as well: multiple states, including Florida, Pennsylvania, and New York, provide online voter registration lookup applications that take a zip code, a county, a name, and a DOB. Knowing where a judge works narrows down zip code and county to a few options, and the name is already known. These lookups provide you with information like your voting precinct and registered address. Therefore, in many scenarios, providing a DOB empowers people to find a home address. We can of course point out that such low security applications are a nightmare that should not exist, but that doesn’t negate the fact that they exist and are readily usable by nefarious actors. DOB, regrettably, has been used as critical identifying information so widely that it shouldn’t be open season to bandy them about under the guise of free speech.
Of course, I will point out the obvious, which is that this protection should not be unique to judges.
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That’s specifically the XBox Cloud Gaming Beta, which is available to Game Pass users. XBox Game Pass’s main service still relies on downloading a game the old fashioned way.
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I’m curious why you think Playstation is the home of the series’ most dedicated fans. Arena and Daggerfall are obviously PC exclusives, Morrowind was a Microsoft exclusive, Oblivion only came to PS3 a year after the 360 release, and Skyrim has been ported to every device under the sun. (The PS4 port even had inferior modding support to the XBOne version.) There’s no special connection between Sony and Elder Scrolls.
Sony is no stranger to this behavior. Remember when Street Fighter V skipped XBox because Sony funded its development? Nintendo is guilty too, in case we’ve forgotten about Bayonetta 2. (Although in that case, the developer has stated it was a question of the game being Nintendo exclusive or not existing at all. Whether that’s true or not, of course, is up for debate.)
This is no different than Insomniac: a previously third party developer that was bought up by Sony and now only makes Playstation exclusives. Good luck getting a Sunset Overdrive 2 now. Of particular note is the Spiderman series, a franchise which almost certainly has diehard fans on every console. Yet Sony has the rights to it, and therefore it’s Playstation exclusive. (To the point where Spiderman is Playstation exclusive in the non-exclusive Marvel’s Avengers!) I’m down for criticizing bad behavior in the videogame industry, but Sony is the market leader in anticompetitive bullshit. They were, after all, the staunchest opponents of crossplay for a long time.
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Well, the class-based civil judicial system is an issue in and of itself. Legislating contract language wouldn’t really help: the wealthy can straight up break contracts and still not lose in court because you can’t afford to sue them.
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"I, the undersigned, state under penalty of perjury, that I do not have any understanding of trademark infringement."
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I think this boils down to a philosophical discussion about whether or not a contract needs to be enforceable to be a contract. I don't really care one way or the other. Here, by contracts, I mean documents which self-proclaim themselves to be contracts, regardless of if they have any legal merit. If we want to define contracts to only be those documents which are both legally binding and enforceable, then that's a different definition.
I don't necessarily disagree with your maxim as being good practice for law, but it's fairly obvious that in the US contracts function relatively independently of whether or not they follow this principle. For example: NFL players can be waived pretty much any time and have their contracts voided, while they have no similar right to leave a team and join another at their convenience.
My landlord can evict me before the end of my lease, but I can't necessarily leave of my own volition without facing significant financial penalties. (In some states, the landlord does not even have a duty to re-rent after I leave and can continue billing me the full amount.)
Whether or not a judge or jury would agree that a contract is fair or unfair is irrelevant if one party cannot afford to pay for a civil suit to make that determination. A contract can only be fair and equitable to both parties if the legal system affords the same opportunities for legal challenges to both parties, but that is simply not how things work here. Money talks. So regardless of if it's a good principle, it's clearly not a principle that's true of the US legal system.
What I'm saying is that it's prior restraint for the government to say, "Hey, Capture One, you're not allowed to say that you'll come into someone's house to inspect their installation." It's NOT prior restraint for the government to say "You're not allowed to go into someone's house to inspect their installation, and you can't make the sales of your software contingent upon that, so this EULA is not enforceable."
Capture One can say they will, and they can call that a contract, but that doesn't mean that they have the legal right to follow through on what is said inside, or that it is a contract in a legal sense. Just like a lawyer can legally send you a threatening letter with a gross mischaracterization of what the law says. (For example, a lawyer sending a North Face trademark letter.)
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There's no real problem with this in my opinion. The problem would be if this is legally enforceable in any jurisdiction, which even then it's an issue of the law being a disgusting, broken mess rather than an issue of what is allowed to be written into a contract.
Getting into the business of legislating what you may or may not put in a contract is prior restraint. It seems to me that determining whether a contract is enforceable is the proper place to resolve issues like this rather than restricting what can even be said in a contract.
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It's illegal (also known as fraud) to get someone to sign a contract which is intentionally misleading or otherwise attempting to trick someone on purpose. In this instance, it's clear that your intention is to steal people's homes by selling them software with a purposefully obtuse contract you know they will not read. That's just fraud. Contracts are only legal and binding if they are, well, legal.
Obligatory IANAL. Source: https://www.law.cornell.edu/uscode/text/7/6b
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But that's a problem with the legal system writ large, a prosecutor and LEA can basically do whatever they want until they hit a courtroom. This isn't unique to felony murder or felony manslaughter. Which is definitely a rather large problem, that our system has no fear of punishment that such willful stupidity can continue en masse because of rampant abuse of qualified immunity, but again that's not a problem of felony murder itself. As you say, we need more aggressive sanctions and perhaps removal over bullshit like this, but we don't have it, and so it continues.
As I mentioned before, I'm not here to defend felony murder as a rabid supporter of it. If there's an accurate and well-informed discussion taking place about why it's bad, then I think that's great. But we shouldn't base our decisions on mischaracterizing hyperbole. Regardless of whether it's good to charge someone with a crime they took no intentional part in, there's still a clear distinction between that and charging someone with a crime because they were present at the scene.
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I always find it amusing when the conservatives cry about Google/Youtube, Twitter, and Facebook censoring them because they're absolutely infesting all three platforms. Twitter is ground zero for every culture war they're trying to make a thing, and the only people who use Facebook anymore are old people screaming at the younguns to get off their lawn. I don't even watch political videos on Youtube, and my recommendations are chalk full of varying degrees of right-wing content, Fox News and all its mongrel siblings pasted everywhere.
To be fair, this is definitely, without fail, no doubt about it, the first time the Republicants have lied about a problem that doesn't exist and then tried to create "solutions" to the "problem" that just end up infringing on everyone's rights.
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I mean, I'm not a proponent or detractor of felony murder. I don't have a significant opinion either way. I could be convinced that it serves a purpose (a much narrower purpose than its current usage), or I could be convinced that any utility it might have can be carried by other, more reasonable and less exploitable statutes.
The only thing I care about is that the discussion surrounding it is accurate, rather than hyperbolic and misleading rhetoric that makes it sound worse than it is.
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That's because this article was written by someone who is clearly against felony murder on principle, and therefore their explanation of how it works is inherently going to paint it in a bad light. Under its intended usage, felony murder is NOT "the person's presence at a crime scene makes them as culpable as someone who actually committed the crime." Whether or not you agree with the assertion that felony murder is bad doctrine, this is a strawman. This isn't what felony murder does.
Felony murder says that if you engage in dangerous, illegal activities, then you do so knowing that someone could very well die in the commission of said activities. Therefore, if someone dies due to your actions, you're responsible. For example, if a bank robber drops his gun, and it discharges, thereby killing a teller, that's felony murder. It's felony murder for the getaway driver in the car because they were directly involved in the initial illegal activity of making the actual robber feel secure enough to walk in and start waving a gun around. Don't want to be charged with felony murder, don't agree to be involved in other crimes that could get someone killed.
If someone engaged in target shooting dropped a gun and it killed someone, that's clearly not murder. But the act of entering a bank with a gun with the intent to point it at people and threaten them assumes the risk that someone is going to end up dead. Again, whether or not you agree with this as being good legal principle is fine, but there's actually some logical basis behind it.
Now, in this specific case, clearly we have a qualified immunity situation where, even if somewhere there's a kernel of rational thought that went into the basic idea, prosecutors, judges, and cops have completely bastardized it into some horrific monster of stupidity. Clearly this situation (as rightly pointed out by the judge) is not the purpose of felony murder statutes. It's a horrific misapplication of the law by the prosecutor. But the misapplication of a law is something that can be fixed without scrapping the entire thing.
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Billy Mitchell has been proven guilty. An in-depth technical analysis proved that the evidence of some of his records was performed outside the scope of the established rules. Mitchell is now "appealing" through the court system, which is part of the job of the courts, so that's fine. But he has been investigated and found guilty by the authority in charge of adjudicating such disputes. Now, you or he can argue that there were flaws in this investigation, and that's what Mitchell is doing through this lawsuit, but he's still been proven guilty. Much like a convicted felon who is appealing and gets their chance to argue why their trial should be overturned, they were still proven guilty.
It's been over a decade since the scores were allegedly set, there's no way anyone knows where the machine is, and even if they do, there's no chance there's a chain of custody ensuring that it's in exactly the state it was left after the records were set.
Re: Re: The problems of a tech-illiterate judicial system.
He doesn't need to provide it to the court at this stage, but for it to even be feasible to rule that TG's statement was made with actual malice, he needs to have provided it (or offered to provide it and they rejected it) to TG prior to the court case even beginning. You can't defame someone if they only disprove your statements during the defamation case and not before: if all of the evidence available to you at the time of making your statement led you to your conclusions honestly, then even if they are false, they do not constitute defamation. He has never led TG to believe in any way that their technical analysis is flawed. He has only ever offered a conspiracy theory that would be consistent with him not cheating, but clearly TG didn't find that credible and therefore reached the only reasonable conclusion. That's not actual malice, which is the standard Mitchell needs to meet.
Even just considering the court case in a vacuum, you're right that he does not need to prove the veracity of his statements at this stage. But he does need to provide an argument which could be successful at a later stage of the trial and would prove that TG acted out of reckless disregard for the truth.
If Mitchell were to say, "I can prove that the tapes are faked using evidence I will bring in court" or "I can prove that the tapes are legit and not recorded on MAME during the trial," then according to the standards of the court, evidence supporting the plaintiff is assumed to be true for the basis of anti-SLAPP proceedings. That would be fine: it's an argument that could logically lead to the conclusion that TG willfully disregarded evidence refuting their claims.
But Mitchell is not claiming this at all, nor is he asserting that he can do so. At no point was he able to cast doubt on the accuracy of TG's technical findings prior to publication, and he has made no indication that that will change if this goes to trial. (Even if it did, as I pointed out before, only providing that evidence for the first time in court should exculpate TG from defamation, as they did not have access to that information at the time of their decision.) He provides two arguments, both of which suck: eyewitnesses back him up, and the aforementioned conspiracy theory.
The conspiracy theory is the better of the two, ironically, because if he could prove it, it might actually prove actual malice. But it's missing the crucial part where Mitchell even begins to outline his strategy for how he will prove it, or even argues that he will do so in court. He simply offers it up as an outlandish suggestion technically consistent with that facts: that is not an argument. He doesn't even claim that he can or will attempt to prove it. Crucially, he offers no explanation as to why TG should have believed it either, which would be necessary for a ruling of actual malice. After all, TG thoroughly analyzed the tapes frame-by-frame and saw no signs of edits or cutting consistent with this theory, so they have reason to believe that they are not part of an elaborate hit job on Billy Mitchell. Therefore the court should find that he cannot succeed with this argument at a later stage in the trial because Mitchell himself has not claimed he will prove it. He merely states that it is possible, which is not sufficient.
The eyewitness accounts are completely irrelevant because of the nature of TG's evidence: all ten children claim that none of them ate the cookie, but there's a cookie missing. Sure, MAYBE a mouse came out and ate it while none of the children noticed and left no trace, but it's not reckless disregard for the truth to think that that's bullshit and that at least one of the children is lying. TG doesn't need to interview them because nothing they say has any relevancy to whether or not TG's technical analysis of the tapes is correct, so it's not actual malice for them not to speak to these people. This is an argument that can't possibly succeed. (Well, it can, because judges say the darndest things, but it should not.)
The problems of a tech-illiterate judicial system.
The analysis of actual malice is somewhat disturbing. Who cares about witnesses when you have a technical analysis that Mitchell is incapable of disputing? The videos were either from MAME, or the tapes are modified. Mitchell has provided no footage which can pass the technical examination. Therefore, Mitchell has zero documentation to support his scores under Twin Galaxies' rules. Twin Galaxies (rightly) is of the opinion that eyewitness accounts are irrelevant in the face of hard data and science that supports their claims.
For them to act with actual malice in the form of reckless disregard for the veracity of their statements, then it must be the case that they disregarded Mitchell's conspiracy theory that the person who provided the tapes was out to get him. That's the only defense he has which actually has any bearing on discounting TG's findings. However, the judicial analysis doesn't really explain why it's "reckless disregard" for TG to not credit the outlandish conspiracy theory that someone with an axe to grind against Billy Mitchell managed to successfully alter the tapes in a way that successfully fulfilled his "master plan," but was also undetectable to a team performing an in-depth frame-by-frame analysis. Even if this was somehow managed, it should be clear to any reasonable observer that TG being fooled by an incredibly complex deception is not acting in actual malice.
By this logic, every news anchor not working for newsmax is susceptible to a defamation claim now for calling bullshit on the Kraken lawsuits. It didn't matter that they had data and audits to back up their stance: "An inference of actual malice may be made from their failure to investigate and reliance on biased sources." They didn't go out and interview every bogus person who filed a bogus affidavit, or interview Trump and co.'s own "experts." They only relied on biased sources who were against Trump's claims! Sue the pants off them!
Re: Re: Re: Re:
Why should Twitch draw the line at selling sex?
Re: Why do they need a reason?
But streamers are paying plenty of rent in the form of Twitch's cut: Streamers who make no money pay no rent, just like people who make no money pay no income taxes. Streamers who do make money are paying Twitch for the ability to do so, quite handsomely in most cases. To argue that it's different because Twitch is taking the money out before writing the check rather than asking for it back afterwards seems silly to me. Employees still pay social security tax even though that money is never in their bank account. It wouldn't make sense to say that someone paid no income tax because it was withheld from their paycheck rather than them paying it directly.
People don't have to pay up front to create something in Unreal Engine, either. But if your studio is a year into development into its game, having paid thousands of dollars to employees, freelancers, and software licensers, only to have Epic turn around and revoke your ability to use Unreal for no reason and with no warning, you'd rightfully be pissed. You could technically go write your own engine, or use another one, but both of those options would involve a truckload of extra time and expense.
No one here is saying Twitch doesn't have the right to do this. They have the right to make whatever moderation decisions they please. Just like the community has the right to pillory those decisions when they're objectionable.
(untitled comment)
The big problem with government in the modern age is that a majority of career politicians (at least in my anecdotal experience in the US, I’d love to see to see data on the subject) have degrees in non-technical fields like history, law, political “science,” etc. The closest they might get to a field that would give them even a solid background in math is economics.
This is all fine and dandy in 1890 or 1950, but in our increasingly technological society where math, computers, and science have become so ubiquitous, government is increasingly incapable of responding to modern challenges because politicians are woefully unprepared to even understand the problem, let alone solve it. They don’t understand the concept of something being mathematically impossible (just like they didn’t a century ago in Indiana during the Pi bill debacle), so to them tech people “just aren’t trying hard enough to find an answer, and if we legislate enough, they’ll be forced to work harder and they’ll find an answer for us.”
Re: I bite!
"There is a difference between 'laws I dislike' and 'laws that raise serious constitutional issues'. The Texas abortion law is one of the latter."
Absolutely this! Even the most violent pro-lifer/anti-choicer should be terrified of this law. It's the blueprint for the erosion of any civil right that the government decides that it wants to get rid of.
Freedom of the press no longer useful? Write a law letting anyone sue without standing over any potential liability from published material and immunize the plaintiff from potential damages even if they lose.
Want to get rid of gun rights? Let anyone sue a gun manufacturer or gun store for any connection to any violent shooting and immunize the plaintiff from potential damages.
Want to crack down on anti-vaccers? Write a law letting anyone sue without standing if they ever transmit the disease they refuse to be vaccinated against, and, you guessed, immunize the plaintiff from potential damages even if they lose.
Want to get rid of freedom of religion? Let anyone sue over any crime committed by someone who professes to have the same religion. Without standing and immunized against potential damages, of course!
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