Funniest/Most Insightful Comments Of The Week At Techdirt

This week, our first place winner on the insightful side is Rico R., responding to an ultimately-unconvincing defense of the CASE act from a popular source:

As a regular Lawful Masses viewer (I even support Leonard on Patreon), I still strongly disagree with the CASE Act, regardless of whether or not there were changes made since then. (Based on the article, I’m inclined to say a little or nothing has changed, but that’s not my point.) Here are some of my problems with the law as written:

  • In California (where a majority of Hollywood studios are), the maximum amount you can sue in regular small claims court is $10,000 for individuals and $5000 for businesses, with even lower limits if you file more than one case in a given calendar year. That’s a far cry from the CASE Act’s limit of $30,000, with no lowering of the limit if you file more than one case.
  • As affirmed by the Supreme Court and even copyright maximalist RBG (and I’m saying that as someone politically liberal), if you file in “big boy court”, you are required to have registered the copyright on the work and wait for the certificate to come in the mail BEFORE you can sue. Yet, in the CASE Act, there is a mechanism that allows you to sue WITHOUT the work being properly registered. Meaning, cases can be brought under the CASE Act that would be dismissed in regular court for failure to state a claim (due to the work not being registered). If Congress wants to reverse course and allow you to bring claims without registration (which it shouldn’t), it should modify the rules for regular court and not set up a new tribunal for those who don’t meet the requirements to file a lawsuit.
  • Many people who support the CASE Act as an “Access to Justice issue” with regards to fair use and false DMCA takedowns are missing the point: The CASE Act sets up the tribunal at the US Copyright Office. If recent history indicates anything, the Copyright Office sees copyright owners as customers and cater to their needs. Every time Public Knowledge tries to push for a DMCA exception to allow format and space shift video content on DVDs and Blu-rays, it’s denied for various reasons, despite the DRM-free equivalent in music CDs being considered fair use. When they asked for public comments and held hearings over the effectiveness of DMCA Safe Harbor laws, those hearings showed they were leaning towards the industry’s demands and even considered notice-and-staydown procedures as opposed to the current notice-and-takedown procedure. And also, they have come against the right of digital first sale, despite the fact that consumers are only increasing the consumption of digital-only goods. Why would we trust the Copyright Office to handle fair use online well
  • Copyright law does need to be reformed, but THIS isn’t how it should be reformed. Copyright trolling is going to increase if the CASE Act becomes law, and it’s also going to result in worse consequences. Copyright law should be updated to curb the trend of copyright trolling. Other problems in copyright law need to be addressed as well.

The positive elements outlined by Lawful Masses are outweighed by the negatives. So, no, I’m not on board with the CASE Act.

In second place, we’ve got an anonymous commenter summing up the insanity of the war on Section 230:

No innovation will come from making platforms legally liable for all third-party content. Nothing good will come from making sure platforms for third-party speech either become cesspools of spam and bigotry and bullshit or cease to exist. CDA 230 is what allows Twitter, Facebook, Techdirt, YouTube, DeviantArt, and a whole bunch of other sites to keep on keepin’ on. Get rid of 230, and you get rid of all those sites. How eager are you to return to an Internet before such platforms existed?

For editor’s choice on the insightful side, we start out with Tanner Andrews discussing the point of trademark in response to McDonald’s bullying a Canadian restaurant:

moron in a hurry

Trademark is, first and foremost, a consumer protection mechanism. If there is a real risk that the consumer will be confused as to the origin of the goods or services, then there is likely a problem with infringement.

On the facts presented, I doubt there was real risk of confusion. A customer at the restaurant already knows he came to a food establishment rather than Mickey’s. He is likely to observe the Canadian flavor in the product name. And, assuming he is familiar with Mickey’s at all, he knows that a name like Effing Fillet would never be found there.

So, assuming our moron is familiar enough with Mickey’s for the trademark to register in his consciousness, he knows this is not it.

The problem, if anything, would have been the reverse. A Canadian wanting the Effing Fillet and asking for it by that name at Mickey’s might be disappointed by what he got. Of course, he is free to walk outside and observe that he is not at Woodshed Burgers.

Next, we’ve got James Burkhardt with a real response to an apparently facetious question about the limits of FCC authority:

The FCC only has authority to regulate under the laws which govern the FCC. So the answer to your question is that the limits are defined by the myriad Telecommunications Acts passed over the years. Under 10th amendment jurisprudence, if the FCC doesn’t have congressionally-granted authority to regulate a market, it also doesn’t have the authority to preempt state authority.

The Title II debate was about the classification of broadband, and existed because a court decision ruled the FCC could not implement the first set of Net Neutrality rules under Title I.

Over on the funny side, our first place winner is That Anonymous Coward with a response to Ajit Pai’s complaints about state-level net neutrality laws:

HOW DARE YOU MAKE ME LIE IN THE BED I MADE!!!!!

In second place, it’s an anonymous take on the customer-surveillance efforts of Outback restaurants:

Don’t give Outback such a hard time

Look, nothing about Outback is in any way Australian, so give them a break – at least they are trying in their own, small way to match the surveillance state the Aussie government is implementing.

For editor’s choice on the funny side, we’ve got two more anonymous comments. First up, it’s a response to our post suggesting it was “incredible” that a tabloid journalist would be hypocritical about free speech:

I think you mixed up “incredible” and “entirely predictable” in your analysis.

And finally, we’ve got a theory about the House’s approval of the CASE Act:

Well, that’s what happened to the Paul Hansmeier defense fund.

That’s all for this week, folks!

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Author: Leigh Beadon

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