Particle Debris (week ending 3/27) Twitters, Shudders and Shivers

| Particle Debris

On Monday, I saw an article that questioned the Wall Street Journal's take on Netflix. The WSJ thinks that the studios will negotiate tougher deals with Netflix and that could cause margins to drop. That's because streaming movies, so far, have been catalog items that have low value. As Netflix seeks to modernize its streaming content, studios will charge more and Netflix will make less money. No so fast, says Dan Frommer at Silicon Valley Insider, and I tend to agree with Dan.

Also on Monday, Seth Weintraub delved into some of the things that Apple didn't talk about at the iPhone 3.0 event, but which various developers have discovered. More disclosures like these are likely to emerge as developers dig into the new SDK.

On Tuesday, I read about a new competitor to boxee called ZeeVee. For now, it's PC only, but the developers are promising a Mac version. (Heard that before?) Personally, I'm finding these kinds of apps unfocused and explained why earlier in the week. Too much flexibility and not enough focus -- and focus brings value.

The next item is not something I usually talk about, but it does indirectly affect all of us on the Web and in print. Sen. Benjamin L. Cardin (D., MD) has proposed that, because we are losing our print newspaper industry, that they be allowed to operate as non-profit organizations. Well and good. The public's interest might be served by that. Be he has a catch in mind. Forewarned is forearmed.

Blockbuster, asleep at the wheel for the past few years, has finally emerged from its sleepy time and now plans to rent and sell movies in partnership with TiVo. Too little, too late? But, hey, we'll see how it goes.

In the "so what did we expect" department from Car Talk Plaza, politics and money are starting to play a role in Twitter, according to the L.A. Times midweek. Leo Laporte was immersed in it, and Dave Winer thinks that Twitter is now too important to be left to its creators. Fun reading, even for non twitter fans.

Meanwhile, the ever productive Dan Frommer reported on the six features Twitter users would be willing to pay for. They're all very good ideas. It's a sign Twitter has really taken off when discussions like this get started. I'm betting Twitter won't look at all like it does now in 12-18 months.

On Thursday, Wendy Davis at Online Media Daily summarized he legal situation regarding commenters to articles and other electronic posts. The issue is whether anonymous commenters can be unmasked and held responsible for their possibly libelous remarks. Ms. Davis noted that "Arizona, California, Delaware, New Jersey, New York, Tennessee, Texas and the District of Columbia -- have said that online commenters are entitled to safeguards before being unmasked." Other states have yet to weigh in.

John Dvorak, the tech writer some love to hate, has come up with a sober, intelligent commentary on the uses of Twitter. His column was posted at PC Magazine earlier in the week, but I didn't log it until later. Those who are still skeptical about the utility of Twitter should read "Nine Ways to Use Twitter."

The good news is that the RIAA has halted new lawsuits against individuals, saying it's not good for their image. (Why this didn't occur to them years ago, no one knows.) The bad news is that they want to work through ISPs to identify and possibly suspend accounts of users who download music illegally. That's put some ISPs, like Comcast, on the firing line, and the company recently had to squirm out of a misunderstanding.

On Thursday, Tom Yager wrote a review of the new Nehalem powered Mac Pro that will have you drooling and shivering with anticipation. I mean, seriously, if one is going to buy a desktop computer, shouldn't it have more processing punch than a notebook computer? Mr. Yager is most persuasive. If you've been toying with the idea of settling for a new iMac with a Core 2 Duo, you won't after you read this review.

Finally, as I heard it, Sony executives were exposed to this video at an executive conference to gear them up for the next few years. As Mac users, we believe we are on the cutting edge. However, the challenge of exponential growth in knowledge and technology must leave some executives shaking and shuddering in disbelief. This is a fabulous video for all of us.

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Somehow, that video (and the 2 others like it), did not make me feel so good.  In fact, it kind of creeped me out.  Our huge, lumbering, myopic governments and civil institutions are nowhere ready to deal with this kind of technical and human growth.

What is to become of my kids?


While I am sympathetic to protecting anonymity for statements of opinion, simply calling something opinion should not and, I believe, does not take it outside the scope of actionable defamation, be it libel or slander.  As I was taught before the age of the Internet, defamation is the publication of any false statement that a reasonable person under the circumstances of the publication would credit and that would cause that person to hold the victim of the defamation in disrepute.  The standard for pleading defamation is to plead allegations of fact that are sufficient to prove, if not rebutted, that a person has been defamed.  I don’t see why the arrival of the Internet should change this traditional understanding of what should constitute defamation and the sufficient pleading of defamation.

Reputation is at least as precious now in the age of the Internet, as it was before.  The difference that the Internet brings is that it is not possible for anonymous defamation to do much greater damage to a person’s reputation and for that damage to last until that person’s death.  In balancing the everyone’s need to protect his reputation and the ability to offer opinion anonymously, the courts should be no less solicitous of protecting a persons reputation than they are in fostering open discussion and opinion.  I believe that the traditional rules of pleading and the penalties for filing a frivolous lawsuit do that in most cases, because it affords full scope for truthful statements, whether or not they damage a person’s reputation, provide they do not violate the dignity torts (false light, invasion of privacy, et al.), and for statements that are innocuous with respect to reputation.  For special cases, such as whistleblowers, the courts could require a plaintiff to plead particular facts that prove defamation.  But in no case should we leave those who have been defamed without an adequate remedy for damages that fully compensates them for the harm of the defamatory statements. 

To this end the Illinois Supreme Court should hold that traditional notice pleading is sufficient to alleged defamation.  And federal law should be changed so that an Internet website that publishes defamation will be held liable for that defamation, if it continues to publish the alleged defamatory statements after receiving notice of the possible defamation from the putative victim.  Website should also be subject to the normal process of compulsory discovery to compel revealing the identity of an alleged defamer, and if a website, fails to maintain identifying information on those who publish statements on its website, then that website should be held liable for the defamation, as if it were the author of the defamation.


So, if a said you are an idiot, that would be actionable? 

Just kidding. 

This is a thorny one, but I suspect the First Amendment will prevail, given the long and honorable tradition of Anonymous print and voice, especially for political and Social dissent.  Is calling President Omaba a Socialist actionable?  Several have done so, and not anonymously.

Yes, it’s gotten more personal over the last few years, and perhaps The (Ottawa) Times should have been more circumspect about publishing some of these comments, but slander is a bunch harder to prove than liable.  The comments “Money under the table..” “The Maxons haven’t played it straight ... ” and “The bribe has continued ...” aren’t really either, IMO.

OTOH, if they are found to be defamation, maybe some of the Sports blogs, and Fan forums can be cleaned up.


The United States Supreme Court has consistently held that defamation is not protected under the First Amendment, so the First Amendment is never at issue in a defamation, except to that a court must categorize an instance of speech as either defamatory or not.  Also, remember that the First Amendment applies only against state and federal government.  There is no First Amendment, when dealing with private, non-government, parties to a lawsuit for defamation.

Finally, the U.S. Supreme Court has set a much higher standard for defaming a government official, such as the President.  In addition to being a false statement that brings one into disrepute, political comments about government officials is given greater but not unlimited scope and would arguably come within the ambit of the First Amendment to the extent that a reasonable person should understand that the content of even an insulting statement was an opinion that is not to be credited as statement of fact.  However, per se defamatory statement—for example, the President is a child molester—would be actionable even under the higher standard for defaming a government official.

News organizations are also protected by a higher standard for proving defamation, which has to do with the legal definition of the word malice.  The legal definition does not conform to the colloquial definition.

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