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  • Dec 17th, 2019 @ 7:52pm


    How is it obvious that an oversight mechanism is insufficient?

    Because the oversight mechanism, being automated, is designed to allow some infringement to occur.

    But that's not the right question. The right question is whether the internet, which allows things at a scale that would seem impossible if using analog technologies, means that we apply different standards.

    Yes, human review is impossible at internet scale. Does that mean that we must allow business models where human review is impossible, or is it just legally impossible to do certain things at internet scale (at least until we change the law)?

  • Dec 17th, 2019 @ 7:35pm

    Law is, or law ought?

    This is one of those Techdirt arguments that lets the policy argument bleed into the legal argument.

    My legal position is always that the Constitution allows for statutory law to take new technologies that 9 out of 10 economists and philosophers agree are a societal good and if allowed bring a new age of utopia to man and curb stomp the hell out of them unless and until the law is changed by the legislature.

    It's a perfectly reasonable legal argument that, if you are a producer of physical goods, those goods can't be infringing. The legal argument doesn't have to take into account how innovative or convenient or otherwise beneficial to society automating the production of goods at the cost of some small amount of infringement could be. Unless that balance is explicitly in the statute, the statute can demand zero infringement even if that kills off the business model.

    So I wish there was more of a textualist argument as to why the exclusion of physical goods from the DMCA is legally wrong, as opposed to "this leads to ridiculous policy results." Lots of Supreme Court justices are very happy to say, "your elected representatives passed that stupid law, now you have to live with it; don't come to us to save you."

  • Jul 17th, 2019 @ 7:44am

    Re: Re: Re: Re:

    So, two things:

    First, this is always true for sellers. You can be in New York, Hawaii, China, whatever, and if you sell something that hurts someone in Kentucky, or is illegal in Kentucky, there's a possibility that you'll be liable in Kentucky or under Kentucky law. I remember writing a choice of law brief way back when where I argued that New York courts would apply California law to a products personal injury in California.

    So, let me restate that: if you were a small business pre-internet, and you sold something, and hurt someone in another state, it was entirely possible you could be sued in your own state's court under the law of a state that your product went to. Just because this seems new and weird to you doesn't mean it hasn't been how products law has worked for nearly 100 years.

    As a result, you're arguing that there shouldn't be local products liability law for the internet, despite it being the case for businesses that can't or won't be on the internet.

  • Jul 17th, 2019 @ 7:38am

    Re: Re: Re: Store Liability

    Way back when I did products liability law. In a number of the jurisdictions I had cases in, it didn't matter where the court was, but where the person was injured. For example, if you're a manufacturer in New York and somebody gets hurt by your product in Kentucky, and that person goes all the way to sue you in New York, the courts of New York may very well apply Kentucky law, even if Kentucky law would reach a different outcome than New York law.

    Once again, this is not a new development; it predates the internet by decades. Anyone, big or small, who has done mail order or sells to national retailers has had to deal with this. There are cases from 50 years ago or more about businesses on one side of the country having to do with product liability law on the other side of the country, sometimes in their "home courts."

    What you're doing is arguing against federalism for the internet, basically. That the United States is too big to maintain individual states' police powers over anything that travels in interstate commerce.

    This is, politically, a giant non-starter.

  • Jul 16th, 2019 @ 4:02pm

    Re: Re:

    This is a general argument against state and local law. It's true on the internet or off.

    Are you arguing that companies that make or facilitate multijurisdictional transactions should be generally exempt from local law, regardless of the reasons for the local law?

  • Jul 16th, 2019 @ 2:33pm

    (untitled comment)

    Disagree with this premise:

    The problem is that all sorts of state tort law could reach the Internet, and
    strangle it, if state tort law could reach platforms. And here is a court saying
    it can, despite the existence of Section 230 generally saying that it can't.

    First, Section 230 is about "publishers." Now a lot of what goes on with the internet is "publishing," but there are many businesses that call themselves "publishers" when they're really in the business of market-making or being a middleman or otherwise introducing two parties that, if it happened with 20th Century technology, you wouldn't call it "publishing."

    Next, there is no reason why state tort law shouldn't, generally, reach the internet. Why can't a state decide what the rules are inside its own borders and remove too-clever internet loopholes?

    For example, if Texas decides widgets are a threat to public health and passes a law saying, "no one shall sell, or give the name and address of interested Texans to others to sell, widgets within the State of Texas," that I think covers Amazon selling widgets without being a CDA 230 violation.

    Why shouldn't Texas be allowed to ban widgets like this?

  • Jul 16th, 2019 @ 2:11pm

    Re: Those who are ignorant of history are doomed to repeat it

    I'd read the comment above yours by Careful Reader, which says that conceded to the court (so it wasn't an issue) that the "assumption of the liability for sending a letter" claim was not covered by the Communications Decency Act.

    Page 16, Footnote 8: "Defendant concedes that the Communications Decency Act, 47 U.S.C § 230, does not grant it immunity from Plaintiffs’ Tennessee tort law claim. "

  • Jul 16th, 2019 @ 2:08pm

    Re: Re:

    The answer is, this is a defense to the actual suit at trial, but not at summary judgment.

    If the farmer's market had a responsibility, or took on the responsibility, as a matter of law, to warn people about the bad lettuce, unless the farmer's market can provide evidence almost to the level of a video showing the plaintiff reading the warning out loud, saying "screw it, I'm eating that lettuce anyway," and then chomping down, the case goes to trial.

    A trial that the plaintiff will almost certainly lose, but it will go to trial.

  • Jul 16th, 2019 @ 11:17am

    Re: Re: Re: You can't touch the money

    When I go to Sunglass Hut at the mall, I do not make a purchase by giving the real estate firm that owns the mall my money, have them take some off the top for their fee, then point a Sunglass Hut employee in my direction so that Sunglass Hut can give me, a person they had no direct business contact with, my sunglasses.

  • Jul 16th, 2019 @ 7:39am

    Re: Store Liability

    You don't have a better case, you have the same case. Whatever you collect from Home Depot would be subtracted from any case you might bring against the manufacturer.

    The general case (this is a Restatement, so it's not "the law," but it's a pretty good summary of what the law more or less is in most places) is Restatement 2d of Torts 402A ( As you can see, the rule is, if it comes off your real or virtual shelf, you're liable for it as if you were the manufacturer unless you go out of your way to separately check its condition.

    So, yeah, Home Depot is liable. The Restatement's been around in more or less this form for a long time.

    Now, let's talk about Amazon. What makes Amazon not a payment processor, and not Ebay, is that it is in the business of selling things. While it didn't sell this particular thing in the traditional way, it didn't make you go over somewhere else and use the "things not directly sold by" site, with different terms and conditions. You went to the same site under the same rules, with the same method you would have used to buy something directly from Amazon's warehouses if you'd just clicked a different product.

    And so it's not really a "marketplace," but it's just one step beyond supermarkets selling their shelf space to manufacturers for whatever the manufacturer is making at the time: they're outsourcing. Outsourcing does not reduce your liability; it just gives you someone else to blame.

  • Jul 15th, 2019 @ 2:46pm

    Re: Re: Re: You can't touch the money

    NOT a legal impossibility. Need to proofread better.

  • Jul 15th, 2019 @ 2:45pm

    Re: Re: You can't touch the money

    Payment systems are already liable for all sorts of things (I've heard stories of Venmo rejecting payments for "Cuban sandwiches" because they were worried it was an embargo violating payment), so it's a legal impossibility, just a practical one.

    Also, there is an obvious difference between "one stop shops" such as Amazon with payment processors, or at least one easily enough definable that a court could draw the line.

    I'm probably going to mention it a couple times during this thread, but I'll mention it here: what I don't intend to argue is whether Amazon should be liable.

    What I want to argue is the point that the government has a lot of leeway to take an axe to what you might think is a perfectly reasonable, society-benefiting business, and there's no rule stopping them. That's "legally sound."

  • Jul 15th, 2019 @ 2:33pm

    Re: Re: You can't touch the money

    I don't think the question's relevant.

    I mean, I know what you're getting at. You think the Pennsylvania decision is bad policy and will lead to unintended bad results.

    But neither the Constitution nor CDA 230 prevent a municipality from saying (expressly or impliedly), "we think some action or principle is more important than economic prosperity or any other objective measure, so we're going to take that hit."

  • Jul 15th, 2019 @ 2:25pm


    Yes, Home Depot is totally liable for selling you an explosive grill. Both under tort law and probably under an implied warranty for fitness for a particular use under the Uniform Commercial Code.

    This has been true for decades.

  • Jul 15th, 2019 @ 12:45pm

    You can't touch the money

    I think the Pennsylvania Court's decision, as well as a bunch like it (e.g. AirBnB), are legally sound. I would describe the reasoning as, "they touched the money."

    If you touch the money as it travels from purchaser to the end pocket, it's very easy to say that your act in touching that money is completely separate from your speech rights under the First Amendment and CDA 230.

    To restate: if you take money for a thing, that taking of money can be regulated.

    Armslist? Backpage? Didn't take money for the things they advertised. But Amazon did.

  • Mar 29th, 2019 @ 1:43pm

    Why money matters

    Even assuming everything the post's author says is true about the malign effects of Santa Monica's law, I don't think Section 230 allows a company to accept money for a transaction a municipality doesn't want to take place.

    The statute's more complicated, but what if the Santa Monica law said, "you can't be part of any payment flow where someone purchases a rental illegal under our laws. Once it leaves the illegal guest's hands, it's illegal for you to touch that money."

    I don't think Section 230 applies to that. I think Santa Monica can basically jump on payment processing and choke the life out of a business it doesn't like on the money side.

    Now, as the author says, there are good policy reasons not to want to do that. But bad economic regulation is not unconstitutional or preempted in America.

  • Feb 5th, 2019 @ 1:54pm

    Re: Sham Exception

    I disagree with you on the breadth of the definition of "bullshit lawsuit."

    Noerr-Pennington, like 28 U.S.C. 1927's sanctions for vexatious litigation, is a constitutionally-permissible way to smack down an abusive lawsuit. But is an "abusive lawsuit" a "bullshit lawsuit"?

    I don't think it is. I think "bullshit lawsuits" may be stupid and wrong-headed, but if a lawsuit crosses into sanctionable territory, it's something beyond a "bullshit lawsuit."

  • Sep 16th, 2017 @ 9:11am

    Re: Re: Manning is not Snowden

    I read that Buzzfeed link, and I can't see what the assessment was of the diplomatic (not military/national security) cost of the release was regarding the State Department cables, because those were redacted.

    I know a guy who ended up in the Wikileaks dump because he did democracy promotion in east Africa, and he felt that, while no one was going to get killed because his name or what he was doing was out there, things the United States was trying to do to make the world a better place, was made more difficult because it became harder for the U.S. to do it without scrutiny. Now the government knows that so-and-so of the opposition is getting visited by some proxy for the U.S. government, so his house arrest will be adjusted, or more U.S. employees will be watched, so folks who aren't already on the government's radar won't meet with them.

    From a DoD standpoint, that's "no damage," because frankly an autocratic government in a country tends to be just as good if not better for helping kill threats to the U.S. than a democracy. But for values promotion, for the stuff that the U.S. does that's actually laudatory and doesn't just help our bottom line, it's a problem.
  • Sep 16th, 2017 @ 9:01am

    Re: Re:

    We do not recognize "motive" in most other cases at criminal law.

    The element of "intent" is whether someone did the criminal act on purpose, not as an accident or mistake. To the extent that some intentions are defended at law, they're specific exceptions like insanity or self-defense. There is no general "meant well" defense to intent.

    If I'm a dealer in illegal contraband, be it drugs, arms, products made from endangered species, etc., it doesn't matter to the guilty verdict whether I'm using the money to pay for an orphanage full of chemotherapy patients. Or if every endangered animal product I sell for a Third World warlord means that he lets 100 political prisoners seek refuge in a neighboring country. These are not defenses to whether I did the crime because they're not on the list.

    They should matter to sentencing, but that's not what we're talking about. We're talking about conviction.

  • Sep 12th, 2017 @ 1:16pm

    What's Wrong With Scan Ballots?

    In my Virginia municipality, you mark in dark ink on an electronically-scanned paper ballot, then feed it into the machine. The convenience of electronic counting with the security of paper ballots. What's not to like?

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