Peter Friedman 's Techdirt Comments
Latest Comments (64)
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On the post: Supreme Court Says No Cameras In The Courtroom
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On the post: Supreme Court Says No Cameras In The Courtroom
Peter Friedman ( profile ), 14 Jan, 2010 @ 08:26ampublic access
Daniel: Big Brother? Courts are public; the issue is public access to matters the public has a right to have access to. Surveillance is a different issue altogether. Are we supposed to begin to act as if the police are watching us all the time? I suppose you think that's a good idea. Others, myself included, don't, and Mike's got a pretty good case that it's just plain stupid because those cameras make driving less, not more, safe. But there's a public trial going on about an issue of constitutional importance. Is it better that we not be able to see it if we want to? The Supreme Court concluded that the answer is yes, for one reason only: being broadcast would pose a real threat of harm to the proponents of Prop 8, who, it so happens, have already been quite visible on airwaves expressing their views on that subject.
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On the post: Supreme Court Says No Cameras In The Courtroom
Peter Friedman ( profile ), 14 Jan, 2010 @ 08:16amthat gay gang
Yeah, the witnesses in support of Prop 8, who have all been on the airwaves extensively spouting their venom, are being protected from those vicious gangs in support of equal rights for gays.
The entire basis of the decision is the genuine threat of irreparable harm to those witnesses. It's total b.s., as the 4 dissenters pointed out. -
On the post: Another Court Finds 'Browserwrap' Terms Are Enforceable
Peter Friedman ( profile ), 08 Jan, 2010 @ 09:27amwhat is and isn't enforceable online
I think what's notable about this new case is that the user could not complete the transaction without seeing a notice that if she completed it she would be bound to the terms and conditions that were available with the click of a button. Thus, this case is no different than when you rent a car and don't read the rental contract before you sign -- you're still bound. You have a "duty to read" -- you can't get out of a contract's terms if you've expressed agreement to a contract but not read it. In contrast, in the Specht case (which the user was trying to rely on), the most important fact was that the user could have downloaded software without knowing that in doing so he or she was entering into a contractual relationship (because the notice that the user was doing so was so far down on the page that he or she would have had to scroll down to even see it, and it's perfectly reasonable to believe the user would not do that and that the user would believe he or she was getting the downloaded program for free). Thus, the court in that case held that there was no contract. It wasn't merely that the user did not read the terms and conditions; the user had reason to believe there was no contract.
As to whether a unilateral right to change the terms of a contract is something a court will enforce, there is very little case law as yet, but at least one federal court has held that under California law those provisions are NOT enforceable. See http://www.karlbayer.com/blog/?p=3940 -
On the post: Where Not To Put Your Data Center
Peter Friedman ( profile ), 23 Dec, 2009 @ 05:40pmCleveland, Ohio
Cleveland is your place -- no natural disasters (you can find a place that doesn't experience tornadoes ever in the region), great source of local talent (great universities, huge corporate headquarter locale), outstanding culture. And even if you're in the Bay Area you can get here in 4 hours.
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On the post: Bow-Wow-Wow-Yippie-Yo-Yippie-Yea Is Infringing, And Fair Use Won't Save It
Peter Friedman ( profile ), 11 Dec, 2009 @ 05:37amno "Paul's Boutique" again?
What about Girl Talk? No one's sued Gillis yet, and they won't.
The 6th Circuit is all wrong on this stuff, and time will show the truth of that. -
On the post: If You Make A Mistake With A Paywall, It Can Linger For A Long Time
Peter Friedman ( profile ), 05 Dec, 2009 @ 05:27pmhey, Salon learned and corrected its mistake
I too was once a Salon subscriber, got turned off by the paywall, and stopped reading. But there's no paywall anymore. Ads may be a pain in the butt, but, hey, everyone's still looking for a way to support good writing, and Salon has some great writing. (Some awful stuff too, but who doesn't?).
In short, Mike, you ought to go back to reading Salon. Just a suggestion from a friend and fan. -
On the post: Why Is NY, Not The FTC Or DOJ, Filing Antitrust Claims Against Intel?
Peter Friedman ( profile ), 05 Nov, 2009 @ 11:52amit's federalism
I gotta disagree on this one with you, Mike, at least until the merits of the antitrust claims are better developed. This is the way federalism works. Federal antitrust law does not preempt state law (it could if Congress wanted it to), and NY State's move is something a state is entitled to pursue if it wants to in order to protect its legal and economic interests. So the suggestion (made explicit by wnyght) that Cuomo has no business filing this lawsuit because it ought to be up to the feds is entirely misguided.
And the feds have been notoriously uninterested in enforcing antitrust laws these past 20 years or so. It's all of a piece with the deregulation of our entire financial system. So I am just as prone to thinking Cuomo is jumping into an area in which Congress has been essentially bought off as much as you are ready to jump in and think it's merely Cuomo putting his name up in the lights.
Intel hasn't exactly been a gentle player in the marketplace. I'll wait and see how this plays out before I judge it. -
On the post: So What's Wrong With Transparency Again?
Peter Friedman ( profile ), 13 Oct, 2009 @ 09:18pmIt's not a question of incremental change vs. radical change. Sometimes transparency is useful change, and sometimes it does nothing but cause harm both by exposing stuff that has no business being exposed and by masking a need for change in the appearance of incremental change.
All those people in prison were enemies of the government? Weren't some of them our enemies too? Like the rapists, murderers, terrorists, inside traders . . . .
In order for government to operate, we necessarily have to entrust it with a lot of private information. Do you really want all that exposed? And, if not, who's going to draw the line between what's transparent and what's not?
Look, sunshine just does nothing sometimes. Take a look at Louis Brandeis, who is the author of that "sunshine is the best disinfectant" truism. He thought "Scientific Management" would make business more efficient, and the efficiencies would redound to the benefit of the working man. When corporate heads realized their workers could do ten times as much work for the same pay, do you think the result was 5 times more time off for the workers? That's what Brandeis thought would happen. Hah. See http://tiny.cc/ELOCf
Just giving everyone more information doesn't do a damn thing. Sometimes it helps. Sometimes it hurts. But if you can't accept that, then you just don't get Lessig. -
On the post: So What's Wrong With Transparency Again?
Peter Friedman ( profile ), 13 Oct, 2009 @ 07:57pmcampaign finance
Coward: you prove one of Lessig's points about the problem with transparency. He isn't suggesting transparency is a short-term fix for campaign finance problems that would be better fixed with a more profound overhaul. He's saying: It's no fix at all! And acting like it's even a short-term fix is doing nothing but perpetuating the ongoing state of things in which the common wisdom is that everyone is bought-and-paid-for and so nothing can get done. Is everyone bought and paid for? No, but many are. What good does it that I can trace who's paying what to whom? It doesn't stop the money from flowing, and if there's influence in the money, there's influence. Should a Senator refuse money? Yeah, and they guy who gets the money will be elected. A lot of good that does.
So the point is: transparency is not a goal! It's only a tool, good for some things and not good for others. When you start to treat it as an end in itself you aren't just being ineffective or less effective; you're actually screwing yourself. -
On the post: So What's Wrong With Transparency Again?
Peter Friedman ( profile ), 13 Oct, 2009 @ 07:43pmanonymity
and you think transparency in government doesn't threaten personal privacy? think police surveillance. think court documents. think IRS files. think customs records. think voting records. think creditor liens. think e-z pass records. think red light cameras (hi, mike!). . .
and if i want transparency, i want it from the corporate world! but Lessig's critique is applicable there too. It's easy: transparency isn't the issue. It's a tool that is sometimes useful, and sometimes a disaster. What you need to figure out is what you're trying to do and what tool will accomplish that purpose best. -
On the post: So What's Wrong With Transparency Again?
Peter Friedman ( profile ), 13 Oct, 2009 @ 07:42pmanonymity
and you think transparency in government doesn't threaten personal privacy? think police surveillance. think court documents. think IRS files. think customs records. think voting records. think creditor liens. think e-z pass records. think red light cameras (hi, mike!). . .
have you guys ever figured out that the government isn't the enemy? the government is us. oh, i forgot. we're all free and autonomous beings oppressed by the government (and liberated by markets!) -
On the post: So What's Wrong With Transparency Again?
Peter Friedman ( profile ), 13 Oct, 2009 @ 06:42pmanonymity
Coward - in a transparent world, we'd all easily be able to find out who you are and why you hang out here every moment of your life.
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On the post: So What's Wrong With Transparency Again?
Peter Friedman ( profile ), 13 Oct, 2009 @ 06:34pmMakes sense to me
er, that was "hundreds of thousands" of documents (not merely "hundreds") . . .
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On the post: So What's Wrong With Transparency Again?
Peter Friedman ( profile ), 13 Oct, 2009 @ 06:17pmMakes sense to me
What he's saying makes a lot of sense to me. First, transparency is not an end in itself. So when we're screaming for transparency, let's be clear on what we're seeking and why. Transparency attained without forethought to its purposes has 2 very bad effects: (1) it discloses stuff we really don't want disclosed. I myself, for example, am very torn about making public court files freely accessible online. They are public documents, and anyone can walk into a courthouse to see them. But availability online is a whole different matter. It makes available instantly to everyone all this nasty and stupid stuff that gets said and written in lawsuits and is understood by lawyers and judges in context as just so much b.s. Needless to say, the internets haven't shown themselves to be the best filters of nastiness. I think the example he gave about Peter Lewis and his daughter was a good one. Are we ready to have all the surveillance cameras in the country available to everyone online? Welcome to 1984, but instead of Big Brother watching it will be whatever nasty jerk wants to be digging up what seems like dirt to you.
(2) The flood of information released pursuant to calls for transparency obscures as much as it reveals. Maybe it takes a litigator to understand this. How do big corporations beat little guys? Not by hiding stuff (that could get them in real trouble) -- no, instead they release it along with hundreds of other documents so you can never find it.
In short, let's not just have transparency for its own sake (to the extent we can avoid it). Does that mean some arrangements for "top-down" filtering? Geez, maybe sometimes I'd rather some small group appointed to make the judgment decide which stupid little fact of my life gets released to the general public rather than, say, . . . (choose the nasty blogger of your choice). -
On the post: Sucks Site Lawsuits Move To Include Facebook As Well
Peter Friedman ( profile ), 25 Sep, 2009 @ 04:16pmthere is no ratchet effect
Don't worry - one bad decision does not create a new precedent that overturns what's come before unless it's a decision by the U.S. Supreme Court. Moreover, the trademark law and the freedom of speech law is so strong there's no real danger that legit suck sites are going to come to an end. Now, you've got a different story if someone tries genuinely to confuse users into thinking the suck site is genuinely a site sponsored by the copyright holder or says something genuinely defamatory (that is, something false as a factual matter and, if the plaintiff is a public figure, with a reckless disregard for the truth).
So stop worrying on this front. -
On the post: Oregon: You Have To Pay Us To Explain The Laws To You
Peter Friedman ( profile ), 18 Sep, 2009 @ 08:07pmthere's no copyright in documents produced by govt. employees in the course of their duties
At least the state AG said he'd have to review his policy. He'll come back and conclude that the state can't assert a copyright in the documents. It's really clear:
see http://tiny.cc/8CL3S
What drives me crazy is reputedly intelligent law professors like Eugene Volokh posting on this point without giving any real thought to it, much less doing any research, and suggesting that there might be room to argue that state documents other than court decisions MIGHT be entitled to copyright protection.
(http://www.volokh.com/posts/1253220102.shtml) the worst kind of law professor (as opposed to lawyer) behavior -- stretching impractical thoughts and irrelevant distinctions into something they tout as potentially having legal significance.
If I start spouting opinions without any persuasive reasoning or authority, please let me know. -
On the post: Is It Too Much To Expect Judges In Tech Related Cases To Understand Tech?
Peter Friedman ( profile ), 18 Sep, 2009 @ 01:39pmtechnical ignorance
I think this post relates to the point about TV shows connecting to their fans. Technical ignorance breeds technical incompetence. TV shows don't know how to connect to their fans because the producers are ignorant of methods they might use, just as judges are ignorant of the technical realities of the internet. My son and I laughed at a recent Cleveland Browns game when the crowd was asked in the 2d quarter to text their vote on the best photo of 3 posted on the scoreboard. The prize for those who chose the photo chosen by a plurality? You'd get texted that winning photo. We both thought it a really pathetic attempt by someone with little understanding to "connect" to the "wired generation." It reminds me of IT people about 15 years ago -- there were a lot of people who held themselves out as experts, but most of those people were incompetent hacks who could get away with it because their employers were so ignorant of what to expect. Technical illiteracy is bad enough. Not even knowing you're technically illiterate is truly sad.
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On the post: Why Do Content Creators Get Control Over Derivative Works?
Peter Friedman ( profile ), 15 Sep, 2009 @ 04:41amwhat is a derivative work?
The author's exclusive rights over "derivative works" never makes sense to me for this reason: any coherent definition of a derivative work includes any work that appropriates all or part of the original work. If the author has exclusive rights over all such works, then there can be no non-infringing work that appropriates all or part of the infringing work.
But there plainly are non-infringing works that appropriate all or part of the original work. There's collage incoroporating copyrighted photos (Blanch v. Koons). There's the use of thumbnails of copyrighted photos in an online image index (Perfect 10). There's 2 Live Crew's appropriation of Roy Orbison's "Oh, Pretty Woman." etc. etc. etc.
There is fair use. And a derivative use that's a fair use is non-infringing. So what the heck is this "exclusive right" over derivative works? As far as I can tell, it's meaningless. The operative legal question is whether a use is fair use, not whether the use is a derivative one. -
On the post: Tenenbaum Dinged $22,500 Per Song; $675,000 Total
Peter Friedman ( profile ), 01 Aug, 2009 @ 09:07amhow out of sync law is with reality?
Paul Brinker - The problem with your supposition that Tenenbaum's case is akin, with respect to copyright infringement, to a "sexting" case with respect to child pornography is that there are much better cases to show the disparity between law and reality than Tenenbaum's. That's Mike's point -- this was a stupid case for Nesson to make into a show trial. To test the law, you take a case with the most innocent, remorseful, and sympathetic client. That's why Jammie Thomas's case is a much better one for challenging the constitutionality of the statutory damages -- her damages are much, much higher than Tenenbaum's.
Tenenbaum had no defense other than this one: the whole system is stupid. That's not a good defense in any legal case, even where the system is stupid. To establish the system is stupid, you use the case where the stupidity is plain to EVERYONE.
Coward -- the ruling wasn't that there will be no cameras in the courtroom because of the risk that in a gang trial the witnesses would be intimidated. The ruling was that THIS TRIAL would not be televised because of the threat of harm to the witnesses who will testify in favor of Prop 8.