James Burkhardt’s Techdirt Profile


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  • Mar 24th, 2021 @ 10:49am


    Subscription services are so 2010.

    No Trump's going F2P MMO Microtransactions. Think 2000's cell phone nickle and diming. X posts per day, par per post after. You can read, but that like or comment will cost you. You can pay for VIP, gives you unlimited posting, but likes are a different service, cause hes borrowing Korean MMO's overlapping VIP subscription model.

  • Mar 24th, 2021 @ 7:10am


    What the FUCK about this article describes "continued efforts to take control of the human supply chain further and further upstream"?

  • Mar 24th, 2021 @ 6:49am

    Re: haven't we seen this before?

    Kinda? Rachael Maddow disclosed true statements and then formed opinion based on those true statements. Her defense was that the facts were true and therefore not defamatory, and her conclusions were opinions reasonably reached by the disclosed facts and therefore not defamatory. She knew the reporter worked for Russian State Media (among other facts, this is off the top of my head) and so claiming the reporter was writing Russian State propaganda is a reasonable conclusion.

    In this case, Sydney Powell is not claiming an underlying factual basis for her opinions. The reason she is being sued is because her factual claims were false. Sydney is claiming that her factual inaccuracies were in fact rhetorical hyperbole and no one would assume her facts were indeed facts. That's why the lawsuits she filed are important - she made express statements under penalty of perjury that her facts, the basis for the lawsuits, were true.

    We have seen this behavior before - Alex Jones and Tucker Carlson have both made similar defenses for content they spewed on their shows. Focusing on tucker, he was sued for defamation by survivors of school shootings. Tucker had claimed they were lying and that those grieving the dead were crisis actors. Tucker argued that the contents of his show is opinion, and no one would believe what he says is factual. Tucker wasn't saying here is the company this parent works for, here is the kid alive and well, its all fake. He presented no facts, only assertions. That is a more dangerous territory. That is why he didn't rely on Maddow's defense that his work was reasonable opinion based on disclosed facts. Rather, he relied on a defense that his bullshit was so insane no one should have believed him.

    The differences between the defenses should be clear. but if not:

    1) I have evidence that X works for Y, and therefore it was reasonable to hold the opinion that he did Z

    2) I lied but my lies are so outrageous no one should believe me and you can't hold me accountable for the rubes who did.

  • Mar 19th, 2021 @ 9:26am

    Re: Re: Re: Re: Re: Re: Cricut?

    Except in that I never connected Cricut and Cricket until it was pointed out. The guy making a joke connected the two, suggesting they also knew there was no connection.

    No one here thought the 2 were connected, so much so I didn't understand the joke that required you to casually connect them.

  • Mar 19th, 2021 @ 9:00am

    Re: Re: Re: Re: Cricut?

    I'd also point out my confusion as to what the joke was might explain why the lawsuit was never filed.

  • Mar 19th, 2021 @ 8:58am

    Re: Re: Re: Cricut?

    Oh so it was a stupid joke in favor of more trademark stupidity.

    In that case, the answer is that Cricket saves money by having a competent legal team which knows that lawsuit only succeeds at burning money.

    Why aren't businesses asininely stupid isn't a joke.

  • Mar 19th, 2021 @ 8:27am

    Re: Cricut?

    The key question would be - over what?

    Imposing new restrictions on previously purchased machines could risk a class-action lawsuit, but for that reason that plan has been scrapped for a plan where they make a big announcement that if you buy it before the end of the year, you get unlimited free use is maintained.

    After the end of the year, buyers would theoretically be on notice that the restriction exists, and a lawsuit might be able to force a refund if that restriction is not clear, but the cost of that lawsuit would be a Pyrrhic victory. I'm not sure what other cause of action exists.

    Its anti-competitive operations might draw a suit, but again its an expensive suit that likely wont pay back its cost, particularly since they seem committed to burning the user base.

    So what did you expect a lawsuit to solve?

  • Mar 10th, 2021 @ 11:38am

    Re: Record High Revenue

    I'm really going to need to see a citation on that claim. Adjusted for inflation, 2018 revenues were lower than 2017 revenues. 2018 revenues were significantly below estimates made before the Tax Cuts and Jobs Act, indicating that growth did not replace lost revenue.

    The nature of our economy and its growth and inflation means that most years we will collect more taxes than the year prior, meaning most years more taxes are collected then had ever been collected before. That statistic means nothing.

    What we know is that we came in 8% short of projections for income tax collection made before the TCJA. The bulk of that shortfall came from a 40% shortfall in corporate income tax revenue compared to estimates.

    As was noted at the time, the tax cuts required super-charged economic growth to balance out, seen as highly unlikely for an economy that had already had one of the longest sustained periods of growth in american history. We did not see that growth and comparing Budget estimates to actual results shows that fact clearly.

  • Mar 10th, 2021 @ 10:34am

    Re: What is a Riot

    Me and my 5 buddies and our Proud boys flag are going to the same city as the proud boys so they are always participating in a riot and can't claim to be peaceful protestors.

  • Mar 4th, 2021 @ 4:52pm

    Re: Re: Re: Re: Re: So how does DMCA apply to contract disputes?

    I did. You ignored that post. So troll it is. But on the off chance you are just that thick:

    the DMCA provides a means of removal of digital files that infringe on copyright. You understand how copyright and the DMCA are connected? or do i need to explain what the DMCA is to you? I probably do.

    The Digital Millennium Copyright Act (The DMCA), is a law in the United States of America (The USA). It covers a lot of things, but its most commonly know provision is the "DMCA Takedown". This is a notice that provides "red flag knowledge" to a website or service like Steam that the person submitting the DMCA believes content is infringing on a copyright they hold or a copyright for which they represent the holder. This generally results in the takedown of the content in question.

    On the contract side: it is not uncommon for the creator of a work (like a video game) to not be the same person who distributes that content. But copyright restricts the ability to distribute content to the holder of a copyright.

    In video games a developer, Frogwares in the case in question, makes the game. They own the copyright. The publisher, Nacon in this case, distributes it to digital storefronts (and stores if it sees a physical release).

    In some fashion the right to disribute the game (exclusively allowed to Frogwares by law) was granted to Nacon by contract. If for some reason that contract was nullified, Nacon would have no right to distribute the game, and if they attempted to do so it would be copyright infringement.

    This is the copyright connection. 2 years ago a contract dispute pulled the game The Sinking City from Steam, because there was a dispute as to the validity of the contract, and therefore if Nacon was legally allowed to sell The Sinking City via steam. At this point, a DMCA might have been questionable. It would take a court to really establish if the infringement was "ripe" yet. But this contract dispute is not what actually spawned the DMCA.

    After 2 years it recently came back on steam. But it contained new content released by Frogwares in the interim that was legally a separate work under copyright law, covered by a different copyright. That new copyright, owned by Frogwares, was never licensed to Nacon. Therefore, the new release of The Sinking City on steam published by Nacon included what Frogwares' description would suggest is infringement, eligible for a DMCA takedown.

    It is true that without the contract dispute, Frogwares would likely have continued to provide to Nacon, and licenced the expanded content. But they did not.

    TL;DR contracts (licences) control who owns a copyright. When you don't have a license and don't own the copyright, you infringe on copyright***. When that infringement deals with digital goods, the DMCA is a proper tool to deal with it.

    ***This does not consider Fair Use, which is not infringement.

  • Mar 3rd, 2021 @ 10:09pm

    Re: So how does DMCA apply to contract disputes?

    Video games are covered under copyright. All copyright is contract disputes one way or another (you can phrase infringement as a dispute over if you need a contract and you don’t have one) the contract in question is the license between the developer, who owns the copyright, and the publisher who licenses the right to make copies and distribute them. the developer has specifically noted the copy available on steam contains content that has never been licensed to the publisher, and therefore in absence of a contract, is copyright infringement. The DmCA applies to a storefront selling infringing digital works.

    If you genuinely couldn’t figure out how the DMCA applies, maybe read the supplementary material. Techdirt substitutes citations for covering some background or context they have covered repeatedly. Also, learn to think beyond the most surface details.

    In the more likely case you are a troll, you are playing checkers right now dude. step it up.

  • Mar 2nd, 2021 @ 8:20am

    Re: "mandated fees"

    Federal copyright law requires a licence fee be paid to "publicly perform" a given work covered by copyright. In the case of music, there are 2 specific fees owed - the composition copyright which needs to be paid to the owner of the rights for writing the music, and the Performance fee, paid to the owner of the specific recording being used.

    Practically, you pay a bulk licence to a Performing Rights Organization (PRO), of which ASCAP and BMI are the major US orgs, and they are supposed to pay the rights holders in question. Taylor swift's music is licensed from BMI.

    These licensing fees are not explicitly required by law and some might consider the phrasing "Federally Mandated Licensing fees" a misnomer. However, the terms comes from a legal brief, made by a lawyer. So I pose that the statement Federally mandated modifies Licensing.

    So federal law mandates licensing, and they have not paid fees the rightsholder requires for federally mandated licensing. That's what Federally Mandated License fees are: Fees required to issue a federally mandated license for the public performance of a work covered by copyright.

    Also, when you quote the underlying legal brief and use a phrase not used in the commentary article you might want to clarify where you get it from.

  • Mar 2nd, 2021 @ 8:03am

    Re: Re:

    In this context "Hollywood" means I am virtue signaling hatred of of a perceived cultural evil and am exposing my understanding of that evil is thimble deep.

  • Feb 26th, 2021 @ 9:19am


    Honestly, the copyright claim is much worse.

  • Feb 9th, 2021 @ 12:43pm



    You are decades behind the discussion. Mergers happen all the time. You just only hear about the big ones, and only remember hearing about the bad ones that you keep hearing about because the process goes on as people challenge them. Anti-trust has never been about preventing mergers. Its about protecting the market from large actors using their money to dominate and control the market.

    Nuance is of course the important question. Its all this article discusses.

    But asking for a dollar amount is the antithesis of nuance. Its asking for a simple proxy to a nuanced issue. The issue isn't how much is being spent. The issue is the effects the merger will have on the market.

    It wouldn't have mattered if T-Mobile bought sprint for a Dollar. It still would have been a bad merger because historically that was expected to result in massive job losses and reduced competitive price pressures. But its not that simple, sprint has for years claimed imminent bankruptcy, but that is questionable as after the failed AT&T merger, Sprint had financials that showed it was in a recovering financial situation, potentially eliminating that excuse. Debt is a big factor. Because TMobile had to borrow to make that purchase, that means it needs immediate returns from the purchase that puts increased price pressure.

    You can't answer the question with dollars, you have to look at the industry and the market and assess complex questions of how the combined entity would effect the market and how the merger will effect the compined entity.

  • Feb 2nd, 2021 @ 10:39am

    Re: It's just Tech

    I am compelled to add to this discussion. I saw no tech people in court rooms. I saw tech people on cable news and in performative hearings. Those "tech people" were often unable to accurately describe the voting systems they were discussing, the phrase USB cards which came up several times being my go to example. They often conflated voting systems and counting systems, with no real clarity as to which they were referring which is a major mistake with dominion systems as these are fully separate, air gapped components which have different software and hardware. They did not, generally, appear to have the necessary technical literacy to be an election IT security expert, as opposed to the much wider pool of physical election security experts.

    Moreover, dominion is a good e-voting system that produces paper ballots, the type of e-voting system I have long advocated for. This allowed a hand-recount of ballots in Georgia proving that counting systems did not get "overwhelmed" and flip trump votes to Biden, nor did workers in Georgia double or triple count Biden ballots. Nor could hackers have influenced the hand recount, which means we need to see more than a general claim of fraud, we need specifics of a system that was hacked to take such claims seriously. At least one fraud claim boiled down to "I wasn't watching and a stack of rejected ballots was moved and so I think someone counted ineligible votes." Its all speculation. And you think with all the scrutiny we'd have more than speculation.

    There is no data or math. Not that a lawyer was willing to submit to a court.

  • Jan 27th, 2021 @ 8:50am


    Historically, even professional investors were no better than a coin flip when it comes to picking winners and losers in the stock market. Online trading only further exposed the lie that is the rational basis market.

  • Jan 25th, 2021 @ 12:07pm

    Re: Previously

    Tom cotton recommended that we go beyond the national guard, we mobilize the military, which are not supposed to be used for law enforcement. (his Specifically, he called on using the insurrection act and suspend local governance in favor of military rule. He claims that he did not call to suspend local governments, but he advocated going against the desires of local government to bring in the military. To do that they would have to operate the military outside any control by the local government (because they did not want a military response), which would undermine any actions the government would take (because the plan was to not take military action). Given that Trump's use of federal troops inflamed protesters, which local governance had already calmed to the point of non-violence, creating much higher levels of violence and property damage, that seems to have been a poor choice.

    This is not what was done at the capital. In response to the hostile takeover of the capital building the national guard, not the military, were called in to provide standard security at the request of DC and capital leaders, something that was denied before the protests on the 6th. The result of the calm reasoned use of the national guard as a defensive tool for was a lack of serious violent protest.

    If you want to establish hypocrisy, it might be helpful to know anything about the issues being discussed.

  • Jan 25th, 2021 @ 9:09am

    Re: Educational Program

    And what does this ad for Youth Crime Watch add to the discussion? Why should I care about the link in the context of the discussion being had?

  • Jan 22nd, 2021 @ 11:29am

    Re: Re: Re: Re: Re: Re:

    I would like to also accept your apology, recognize that you did re read and understand your mistakes. We all have had comments we misread, I've had to eat crow on more than one occasion myself. While we all might hope we see those mistakes earlier, what matters is that you took the time to understand the positions we were putting forward.

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