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Comment Re:Same old song and dance (Score 2) 332

you seem to not understand how constitutional law actually works or what freedom of speech actually means. Tons of laws have been passed and held constitutional that restrict speech. Laws against inciting violence or physical harm, defamation, fighting words, and obscenity. The first amendment was written and ratified by men not that far removed from ancestors in England who were clapped in irons and literally branded, on the face, a seditious libeler for vocally disagreeing with the government. It is first and foremost a protection against tyranny. It is not a protection from any private action that limits your speech that would not otherwise be a crime or actionable as a civil matter.

I also don't see the relevance of contracts law, except insofar as Verizon would like the ability to force its customers to sign contracts allowing them to shape bandwidth and determine what sites customers may and may not visit, etc.. Which is, of course, a bullshit move. But it is bullshit not because the contract would be held void for violating the constitution (it wouldn't) but because the FCC is totally within its powers to regulate the internet. It is bullshit because ISPs should be reclassified as common carriers, as they clearly provide a public necessity.

The thing is, this is enough of a reason to despise them and their corporate greed. This is enough reason to enact legislation limiting their ability to control the way their customers access information. I'm in no way disagreeing with your general sentiment, just pointing out that you don't know your ass from your elbow when it comes to the law and the constitution.

Comment Re:Same old song and dance (Score 2) 332

while you are correct that verizon's free speech argument is bullshit, net neutrality is not a free speech issue as such. Freedom of speech is a freedom from government interference with speech. Net neutrality certainly promotes speech that is already free, but its absence would not constitute government censorship.

Comment Re:second hand e-smoke (Score 2) 314

Yeah, I was curious about that too. I feel inclined to go with the lancet over a french consumers group.

I'm also kindof sick of all e-cigs being grouped together as if its a monolithic and uniform product. It's not. I could give two shits about what eliquid producers in france are doing. Or all that shit made in china. eLiquid i buy from a retailer trusted by the eliquid geeks on the e-cig forums is not the same product as whatever they 'tested' in that 'study.'

I'd be very interested to read a proper scientific survey of major eliquid producers, controlled across different atomizer/battery setups. And if the FDA wants to regulate eliquid composition, I'd be ok with knowing that what i buy is pure. But if they bring down a banhammer over underage sales i for one will be raising a fuss. I smoked my first cigarette at 13. Purchased by a 15 year-old. Its not like the tobacco age restrictions are fucking foolproof. And can you imagine being a teenager illicitly buying ecig gear online, coming home to your mom asking why you just got a bunch of packages from sellers with Vape in the title?

Comment Re:Huh? (Score 1) 246

I dont think that's necessarily true. Once the DOJ had the drives with the files from carpathia, there is no evidentiary reason for mega to maintain the files. This is the real problem people have in understanding what mega is trying to do here. They were not told to maintain the files. They were told about a search warrant served on their server hosts, and told that they could not tell anyone else about it. Once carpathia rendered the drives to the DOJ, Mega's only obligations under the warrant was not to blab about it.

And dealing with carpathia was not a way of getting cake and eating it too, it was the proper way of obtaining the evidence the DOJ needed. Mega may have had copies of the server logs detailing the info about the ninja users the DOJ wanted, but the originals were on the servers at carpathia, as were the allegedly infringing files in question. As far as evidence goes, getting it closer to the source is better, and the server hosts here are clearly the source of server traffic logs and files hosted on the servers. There's really nothing shifty about dealing only with carpathia, as they were the people in immediate possession of the evidence the DOJ was seeking.

Comment Re:Huh? (Score 4, Informative) 246

my reading of mega's brief and the government's response, is that the government did not ask mega to preserve any data. Rather, the warrant, served against carpathia, was sealed, with exception for disclosure to mega for compliance with keeping the existence of the warrant secret. Mega's brief includes the original email from one of carpathia's directors, which states that the government wants the files themselves to be turned over, and recommends that they be aggregated onto one or more drives from the server, then those drives be handed over. It also recommends that mega not start an 'E7 ticket.' I have no idea what that is, but the implication is that opening one would alert the ninja users as to the reason for the unavailability of files.

The brief says that mega maintained the files publicly available in keeping with the government's express desires, but the document they offer in support shows no such government request. In fact, the government did not interact directly with mega, as the warrant was being served directly against carpathia, as the actual hosts of the files. There seems to be a lot of 'the government request is well documented' going on in the comments here, but its not evident even in mega's own supporting documentation. The government seems to have gone out of its way to preclude such a claim simply by not interacting directly with mega.

Furthermore, the affidavit supporting the domain seizures in early 2012 was not, as one might infer from mega's rhetoric, based exclusively on the files at issue in the ninjavideo case. In fact, one of the two infringing files specifically named, with URL, in the affidavit was twilight breaking dawn pt 1, which had not been released in 2010 when the gov was pursuing ninja.

The problem with the whole thing, in my opinion, is that mega could have made a decent argument that they couldnt remove the specified files from public availability without giving the ninja users cause to ask why, and that in order to comply with the spirit of the seal on the warrant, keeping the files up and available was the only real option. The main weakness in this is that for only 39 files, 'random server shenanigans' would be totally par for the course if they'd just taken the files down with no explanation. Server errors happen. This argument also only goes so far without either a very official letter of understanding from the DOJ that mega would not be held liable for infringing copyrights while complying with the warrant, or even better, an injunction mandating that they keep the files up and remain silent as to why. But that's not what happened. A sealed warrant was served on mega's host, carpathia, apparently seizing the files and compelling the disclosure of identifying information on the ninja users. That's not really the same thing as 'complying with a documented request by the DOJ to keep breaking the law.'

I'm sure there's a bunch of stuff i'm missing, the suit is pretty complex at this point. Even just mega's brief includes both mega's action as well as a third party action to compel the DOJ to release private, non-infringing data back to private mega users. But the entrapment claim seems kinda stupid. Copyright law needs some major reform, but in the statutes. Letting Mega off will accomplish as little as convicting them, imo. Either way, a bunch of other file lockers stepped in to fill the void, and the copyright system will still be a statutory nightmare essentially legislating the corporate content creation model of 20 years ago. Oh, last note, Wired's story has good links to the briefs, affidavits and warrants discussed above, much better than TFA linked above.

Comment Re:Huh? (Score 2) 246

My understanding, from reading both Mega's brief and the DOJ response, is that Mega is grasping at straws, but judging by the comments here, is doing so rather effectively. The point of the 'keep things secret' instructions from the DOJ actually only go so far as sealing the search warrant. They were not seeking cooperation from mega or carpathia, they had a court order compelling it. Cooperation was neither here nor there. The point was that they couldn't disclose the existence of the search warrant, as that was sealed to only carpathia, with exception to mega.

Furthermore, the only communication they submitted in support of the brief was an email from a director of carpathia to the mega directors. (there was a link to it in the Wired coverage of this) It states that the government wants the files themselves, and the director suggests aggregating them on to however many drives from the servers it would take, removing and replacing them, then sending those drives to the government. It then recommends not setting up an 'E7 ticket' whatever the hell that is, which would presumably alert the users in question that the files had been removed for a specific reason, rather than simply being unavailable because of server shenanigans. Far from producing a communication from the government saying 'please keep these files up and publicly available' they've produced an email that seems to indicate the government wants the physical drives from the servers on which the files reside. On the one hand, its not exactly fair to go to mega with this search warrant, and say, we're taking these thigns, but you cant let the people who use them know. On the other, i doubt that 'take down 39 of the however many millions of files you host and dont publicly post that they were removed in response to a court order' is really an undue burden. File lockers have server issues all the time.

I'm personally of the opinion that this whole clusterfuck is pointless, given the way the other file lockers filled the void mega left, and is ultimately a losing proposition by supporters of terribly written copyright laws. But without a document showing a governmental request that mega maintain those files publicly, this seems like dotcom's 'fuck'em we'll just do it anyway' business strategy biting him on the ass.

Comment Re:Not legal here. (Score 1) 286

I was living in seattle when they first started installing red-light cameras on denny. I cant speak to whether or not it made it safer for pedestrians, but it certainly made it more... predictable at least, once everyone realized that just drifting through intersections and maybe getting stranded in the middle when the next light didnt turn green in time would get you a big ticket. Now, in my neighborhood in chicago, there's a bunch of no turn on red cameras, which i assume also snap people running the light straight through. This really pissed me off the first time i came upon it, but not once i came through those same intersections not at 10 at night. When there's actual traffic, there is literally no way someone could turn right through the flow of cars, and letting them even try would just let a car try to drift through a busy crosswalk. Again, i have no idea if this actually reduced injuries or accidents, but it certainly makes the traffic patterns more predictable.

Comment Re:Shrug (Score 1) 424

Well, with regards defamation, in the US, while the defendant has no burden to prove that the defamatory statements were true, they do have the burden of proving that they had no actual knowledge they were false, and did not negligently (or recklessly in the case of public figures) publish them without regards to truth. This is a sortof compromise between making the plaintiff carry their case, and not putting a chilling effect on freedom of the press. In practice it basically means that if one has a reasonably trustworthy source for some information, you can publish it without too much fear of being successfully sued for libel.

The 'how do you prove a negative' complaint is often raised on /. but in practice its not the challenge you might think. To use your donkey-fellating example, while it may be difficult to prove that one has never blown a donkey, its less difficult to prove that the story either came unsubstantiated, which would be negligence with regards to truth, or came with specific instances of of donkey-sucking, which could be verified. If not attempt to verify was made, again, negligence with regards to truth. If reporter chooses to guard their source, the court holds them in contempt.

This case, however, is an example of an even less troublesome 'proving a negative' situation. Allegations of theft are pretty easy to disprove. Some, at least, of the jewelry was later found misplaced by the defendant, because she'd done a shoddy job packing. Her statements that plaintiff was under investigation by the bbb were demonstrably untrue. Her statements that the police were investigation him for the theft of the jewelry would be verifiable by asking the police. Her statements that his collections case had been dismissed for cause was demonstrably untrue. Rather, it was dismissed on procedural grounds because he had missed a filing deadline. She made all these statements about things that are readily verifiable independently. So really, the proving a negative thing would be no problem.

Another justification for holding defendants responsible only to a negligence standard for doing their due diligence regarding truth, is that truth has always been an absolute defense against defamation charges. Defendants will always make the strongest case they possibly can, so if an argument can be made that something is true, they will make that case, regardless of whether or not the plaintiff has made the case that the statements are false.

Comment Re:Shrug (Score 1) 424

well, as it turns out, i clearly should have gone to bed rather than try to explain anything. the way that plaintiff's burdens of proof work with defamation, and veracity and fault, have evolved more out of the ways that media reports news than interpersonal relations between two people that spill out to 3rd parties. The burden of the plaintiff as to fault is determined by whether they are a public or private figure. The one requiring actual malice, the other merely a negligence standard. In both cases, the issue is whether or not the defendant knew, or should have known that the statements were false. Actual malice being knowledge that the statements were false, or reckless disregard for whether they were true or false - negligence being whether or not defendant exercised a reasonable level of care in determining that the statements were true before making/publishing them.

This all becomes much more murky when applied to the modern era where statements can be disseminated by a single person wide enough to have a sever impact on someone else's reputation without the intervention of the media. Basically, the requirement that the statements be false and that they be made 'with fault' get sortof commingled. you're right, the burden of proving the truth of the statements is on the defendant. However, in cases such as this, where the defendant made statements concerning matters in which she was a participant, or of which she had firsthand knowledge, the notion of establishing her negligence in failing to check the veracity of her claims (spoken with fault), and establishing that her statements were false are basically the same thing. When the events which are the subject of her statements are events about which she has firsthand knowledge, there is no question of negligence in ascertaining the veracity of her claims. She has actual knowledge that some of the pieces of jewelry were simply misplaced when she moved. she has actual knowledge that his collections action against her was not dismissed for cause, but because he failed to file a timely response to a motion. from reading the complaint, the list could go on for a while. Saying that the plaintiff has the burden of showing that defendant failed to show reasonable care in making sure that statements she made concerning her own actions were true, but not the burden of proof for the veracity of the statements themselves is a meaningless distinction. This is why Virginia is a state where plaintiffs can simply foreclose truth as a positive defense by showing falsehood. 30 years ago, this would have been a word of mouth situation, and would likely never get this far. It would be much harder to have and show damages this great from one lady running her mouth off at the coffee shop, and were it a subject of defamation per se, it would be less likely that the speaker would have first-hand knowledge (and still be talking about it in public anyways) and thus the question of reasonable care in ascertaining veracity makes much more sense.

Now, since you went ahead and made it personal, why dont you just go and fuck right off. I'm hardly the first person to go off on /. half-cocked in the middle of the night. my media law class was several years ago, and that's obviously not my practice area. Also, i'd just point out that if you read the whole sentence you quoted from the PA newspaper thingie, the defendant's burden to prove truth only comes in when the plaintiff has made their case, and truth as an affirmative defense is being asserted.

Comment Re:Shrug (Score 1) 424

Basically, one need not prove anything, but rather show by a preponderance of the evidence. I know what you're getting at, though. However, because the standard is lower than what the criminal standard of 'beyond a reasonable doubt,' a similar plaintiff would go about demonstrating rather that there is no proof that he stole anything. Particularly with an accusation of theft, this can be done without seeming as wishy-washy as that makes it seem. When something is stolen, something worth smearing it all over the internet, you should probably have gotten the police involved. did defendant report the item stolen to the police? did they pursue the matter? was the item really missing? if not reported, why not? There are also means by which parties in civil cases can execute searches against each other for discovery purposes. The real smoking gun would be finding that the item was never stolen. Or stolen by someone else.

In this case specifically, however, according to Dietz' complaint (linked through the huffpo article), its clear that by her own words, Perez did not think Dietz was involved with the jewelry going missing until the collections proceeding Dietz brought against her when she refused to pay. And that she'd told the police she did not suspect him. And that she had just moved cross country, and later found at least some of the supposedly stolen pieces mixed in amongst other belongings. So, some of the items in question were demonstrably not stolen and there is a suspicious alignment between the collections case and her allegations of theft where before she had informed the police otherwise. Its not beyond a reasonable doubt, but taken with everything else detailed in the complaint, it paints a pretty vivid picture.

Comment Re:Shrug (Score 2) 424

You are mistaken as regards libel. If she made an allegation on a matter of fact, she has to be able to show it is true. It's not up to him to show it was false.


well, no. the plaintiff in a civil suit has the burden of proving his case. that the statements in question are false is one of the elements of defamation, and therefore the plaintiff must, in fact, be able to show that the statements were false. He cant just stand up and say 'Nuh-UH' and mysteriously shift the burden of proof to the defendant.

'allegations on matters of fact' are all that defamation is concerned with. if its not an assertion of fact, its an opinion, and therefore protected as free speech. And as to the great civil versus criminal distinction, well that's not terribly relevant. just replace innocent with not liable and guilty with liable, and you're good. The point is that the person asserting the legal claim (plaintiff in a civil case, the state in a criminal case) has the burden of proving their case, regardless of defenses offered by respondent/defendant. If a plaintiff can't show by a preponderance of the evidence that the supposedly defamatory statements were false, then his case fails, even if the respondent offers no evidence on the subject at all.

Comment Re:FREEZE! (Score 5, Interesting) 770

I have two problems with this argument.

First, it seems to me to be a rather narrow reading of of the federalist papers to validate current concerns, rather than a reading of them in the context of the general concerns of the populace a the time they were written. In doing so it glosses over the true purpose of No. 46, which was to calm fears regarding Madison's proposal that the federal government keep a standing army. Madison was the Big Government Guy in historical context, arguing against the anti-federalists who desired to keep the Articles of Confederation, a weaker federal government, and no standing army, which was obviously seen as a tool of governmental oppression. Madison was simply reminding the people that A. they had already handled that situation before, and B. that the basic federal structure of the states precluded the type of tyranny they most feared. I see No. 46 speaking more about the power of local political organization than about the right to bear arms.

Second, it strikes me as ridiculous to treat the federalist papers as some kind of authority over the constitution. They were pieces of propaganda. This is not to discount their value in framing the political debate in its context or in getting inside the minds of Hamilton and Madison. It is simply a fact. They were written to persuade the populace to support the Constitution. They were propaganda. While they may give insight, they are still advertising. And they certainly do not trump the fact that Article I Section 8 vests the power to organize the militia in Congress, not in the States. Whether or not an armed populace was, in the minds of our founders, provided for the purpose of overthrowing the federal government they were founding, in the Constitution it is tied to the militia, and the militia is explicitly created as a function of the federal government.

Comment Re:Actually... (Score 2) 180

With PDAnet at least, the http only limitation is only for the free version of the app, not anything to do with the tethering functionality itself. drop $15 on the full versio of the app and have full functionality. I'm personally just fine with paying $15 to a dev then having free service, rather than nothing to the dev and $20 a month service.

Comment Re:A logo is a trade mark (Score 1) 544

I didn't say that it would never be registrable. Rather, what I said was that you'd have a tough time because the consuming public doesn't know who you are. If EA spun off a subsidiary with the same name, their marketing budget would dwarf yours and very quickly, the public would recognize "Drinkbox" as part of EA. Remember, in trademark and trade dress, until a mark is incontestible and has been on the principal register for three years, your ownership can be challenged by others who have obtained wider recognition by using the mark.

i dont think you'd have a tough time at all. Drinkbox, as it relates to videogames would clearly be an arbitrary mark (unless the games themselves were actually drinkboxes) and therefore inherently distinctive and elegible for immediate registration. the period of time a mark must remain on the principle register before becoming incontestable is 5 not 3 years, but in the case of a registered mark, owned by a senior user (DB Studios) against a junior, if larger user (EA) incontestability would not really add much unless Drinkbox Studios fails to defend their mark. Registration confers national priority in use of the mark to the registrant. So even if EA starts trying to outmarket Drinkbox Studios, their larger market will be irrelevant because, all other things being equal (such as registration obtained through fraud, mark used to violate antitrust laws, and other things clearly outside this discussion) the junior user of a registered mark's only defense is not their own larger use - admitting infringement is a poor defense to alleged infringement - but rather to attack the validity of the registered mark. And given the basic prompt of Drinkbox Studios vs EA, EA would have no hope unless drinkbox seriously fucked up.

incontestability really only bars challenges to non-functionality and distinctiveness of a mark. this would of course be of central importance to the case of trade dress in a product, where distinctiveness comes only through secondary meaning, and therefore a larger firm out-marketing a smaller firm before such meaning could be attained would certainly be an issue. I think this is really a matter of when the lawsuits are filed. Trademark and dress are rights that exist only through their active defense. Asserting that right starts the clock on what facts will be considered and the smaller firm would have a much better chance of obtaining an order restraining the larger firm from further marketing.

Comment Re:Poor understanding of IP categories (Score 1) 544

Ah, but people do make that mistake. Samsung's lawyers famously made that mistake when they couldn't tell apart the Galaxy Tab and an iPad

well, yeah, that attorney kinda fucked up a bit. at the same time, it was at a distance. *shrug* my take on it is that if you put the two in a situation where the distinguishing features are minimized (home button vs android soft buttons, thickness, trim, the whole back) are minimized, then, yeah, they're going to look similar. but if that similarity is basically 'rectangular tablet with rounded corners,' then so what?

Conversely, if you're a small and new video game developer - say, Drinkbox Studios - you probably can't get trade dress protection because the consuming public doesn't recognize you. Hell, most of them probably haven't even heard of you. So if a big developer like EA wanted to spin off their "Drinkbox Games" division, you wouldn't have much recourse. But you could get a design patent on your new, nonobvious logo.

So, basically, yes, they overlap, but trade dress protects well established brands (and is part of the reason why it lasts forever),

i understand your point as to the acquisition of secondary meaning favoring established products, but your analysis rather confuses trade dress, trade name, and trademark. Your example of corning insulation is on point because it is only trade dress in products that requires secondary meaning in order to establish distinctiveness. Drinkbox Studios doesn't strike me as being relevant. First, Drinkbox would be protectable under trademark. If Drinkbox Studios registered the name with their trademark, rather than simply the trade name with their state of incorporation, and used it in trade before EA tried to spin off a Drinkbox Games, then EA trying to use Drinkbox games could be nothing but confusingly similar. Second, most of the ip in a video game is copyright. The story, the artwork, the code - all copyright. characters, if they are sufficiently unique, too. Third, the visual aspect of trademarks, logos, are almost always inherently distinctive, in fact are much stronger when they are. that is why when we say 'logo' we think of some distinctive graphic, not just a block of text with a business name. While a mark is even stronger with secondary meaning, nothing is preventing Drinkbox Studios from having an ironclad mark simply by designing and registering an inherently distinctive logo with the USPTO.

but i do take your point with regards to product trade dress. if some small company spent a whole bunch of their budget making their product super cool, then a larger company came along and copied those non-functional design elements that made it cool, then sold it to a larger market, before the smaller company's product had time for those elements to become identified with it - that would indeed be unfair, and outside the protection of trade dress. but i really dont think that that translates into the need for an intellectual property right in creating a market for cool.

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