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Court Rules That “Patent Troll” Is Opinion, Not Defamation (eff.org)
162 points by glitcher 60 days ago | hide | past | web | favorite | 41 comments

Shame! I was hoping for some detailed analysis of what constitutes a troll.

For example, from Oxford I see "(in folklore) an ugly creature depicted as either a giant or a dwarf." Well, which is it?

Further to that, is Troll always a derogatory term? Some think of them as ugly, but apparently in Scandinavian folklore, trolls may be ugly and slow-witted, or look and behave exactly like human beings, with no particularly grotesque characteristic about them.

Again, these important issues are left unresolved by the New Hampshire Supreme Court. Truly an opportunity lost.

I believe the etymology is from the verb troll, "carefully and systematically search an area for something" "fish by trailing a baited line along behind a boat."

The word that you are describing here is trawling, not trolling.

I admit though, that trolling does admit some sense of what trawling defines.

Etymonline suggests it might be a combination of both definitions: https://www.etymonline.com/word/troll

TIL. That makes a defamation lawsuit seen even more farcical.

Of course etymology is not meaning. While the origin of the term is neutral, there is no doubt that "patent troll" is used as a derogatory term. But in order to count as defamation it also have to be false.

But since there is no clear agreed-upon definition of "patent troll", it is impossible to prove whether it is a false statement or not.

> Further to that, is Troll always a derogatory term?

In Master of Magic, Trolls are the physically strongest race, with high hit points and attack strength as well as regeneration. A band of War Trolls led by a clever Warlord will bring glorious conquest to the worlds of Arcanus and Myrror. Derogatory, forsooth!


Isn't a troll, regardless of what they look like, an entity that hides under bridges, and jumps out to demand a toll?

That's apparently how the Court understands it.

A troll is someone who employs a strategy analogous to this one:


Or fly fishing, right?

No, https://www.imdb.com/title/tt1740707/ (Trollhunter, 2010.)

OK, I see:

> In Scandinavian mythology, trolls are large, ugly, unfriendly, brutish, slow-witted, anti-Christian creatures said to dwell in isolated rocks, mountains, or caves. In the movie, there are two main types of trolls: mountain trolls and woodland trolls. Subtypes include Ringlefinch, Tosserlad, Rimetosser, Mountain Kings, the Harding, and Jotnar.

But it doesn't say what they do, in addition to dwelling.

See https://tvtropes.org/pmwiki/pmwiki.php/Main/TrollBridge

I'm familiar with the trop and I have no justification for this but it feels like maybe a later medieval invention.

I don't know that they essentially do anything. There are many stories... they kind of just do unfriendly people things? mostly... they guard treasure and sleep for thousands of years sometimes?

OK, but the judge here is unlikely some expert in Scandinavian mythology. And it's pretty clear that they understand troll as someone who guards something valuable, and demands payment from those who want it.

And then there's online trolling: https://gizmodo.com/the-first-internet-troll-1652485292

True. What do online trolls guard? haha I think it might be just that trolls are unfriendly harassers. It's not universal but common enough since Christian times.

> What do online trolls guard?

They guard whatever it is that they're trying to dominate :)

This movie specifically has trolls under bridges, although no tolls of course.

A robust win for freedom of expression, and expected insofar as American jurisprudence takes an atypically narrow view of what constitutes "defamation". This was a last gasp for this odious business, they couldn't have thought the odds were good that this would be upheld.

A patent troll is as a patent troll does.

Good. It's an accurate opinion most of the time too.

In a country that protects money transfers as speech, shouldn't this be obvious?

The US doesn’t protect “money transfers” as speech as such. Buckley v. Valeo upheld limits on campaign contributions, for example. What that and Citizens United struck down was restrictions on using money to pay for political expression. If you want to spend $500 billion to put a sign on the moon that says “vote for Biden” you can do that. That’s not protecting “money transfers as speech,” it’s striking down restrictions on speech and political expression disguised as restrictions on money transfers.

Of course that makes sense. If the government can stop you from spending $500 billion to put a sign on the moon, “because money isn’t speech,” then the government can stop you from spending $500 at Kinkos to print signs for a protest, for the exact same reason. If the government can use control of money to control speech, it has vast powers over speech because huge amounts of speech involves the expenditure of money. You pay AWS to host your political site? If Citizens United went the other way, the government could control that! Indeed, during oral argument in the Supreme Court, the lawyer for the government defending the campaign finance law was forced to admit that under the government’s view, Congress could ban books by controlling corporate expenditures: https://www.supremecourt.gov/oral_arguments/argument_transcr... (pp. 26-30). (It’s one of the most devastating concessions in a Supreme Court oral argument I’ve ever read.)

Haven't limits effectively been removed by permitting super PACs that aren't directly tied to the candidate?

In practice, I don't see real limits on campaign contributions, only limits on the amounts a candidate can control him/herself. Maybe that's enough, I don't know.

> That’s not protecting “money transfers as speech,” it’s striking down restrictions on speech and political expression disguised as restrictions on money transfers.

More like it legitimizes bribery as a "campaign contribution".

It's... not like that at all. Did you read the comment you replied to?

Citizens United? It in essence is. One of the worst outcomes when it comes to legitimized political corruption.

Bribery would be giving money to the politician, yes? Citizens United doesn't address such contributions.

If I can pay for the sign on a boat instead of the moon, and it just says that politician's name, and the politician gets the boat, the difference is negligible.

The politician doesn't get the boat though.

Politician gets the power, bought with money. How more corrupt than that it can be?

The politician gets whatever benefit the advertising produced in the minds of the voters. That's it. He doesn't get to keep the boat, the corporation isn't giving him money, etc.

> He doesn't get to keep the boat,

He doesn't keep the title, but otherwise he keeps the boat. It's in his slip, it's maintained by his crew (well a company he pays to crew it). That's how it is, today. You can see this in harbors around the US.

The public is in the EXACT same denial about the politicians reading the laws they pass. It's fantasy to think that the corruption isn't blatant.

I admit I don’t understand what you’re talking about. Some corporation pays to put an advertisement for a politician on the corporation’s boat. Citizens United says the corporation is allowed to do so.

How does that translate into the politician getting the boat?

Politicians get the power, those who paid for it will ask for favors in return. If you don't see this as corrupt, not sure anything would count as corrupt then.

You're mashing together two different things: helping someone get elected, and getting special "favors" in return for helping someone get elected. What the Supreme Court has said is that the first thing, by itself, is not corruption, whether or not you use money to accomplish that. (And everyone uses money to help politicians get elected, from gross-roots organizations to newspapers who print endorsements. If merely using money to help someone get elected could be regulated as "corruption" the government would have vast powers over political speech.)

The second thing, giving special favors to people who helped you get elected, can be corruption, whether or not money is involved, as long as a quid pro quo arrangement can be shown. For example, few people would disagree that its core free speech for newspapers to be able to endorse candidates. (Even the government in Citizens United suggested that the freedom of the press clause might protect newspapers separately from general speech protections.) But if the Washington Post entered into a quid pro quo arrangement with Joe Biden to endorse him in return for favorable legislation that specifically benefited the newspaper, that might be prosecuted as a corrupt quid pro quo arrangement even though no money changed hands. The quid pro quo arrangement in your hypothetical--which Citizens United does not address--is what makes the corruption, not spending money to get someone elected.

Problem is that first thing directly leads to corruption, so it's a rather poor excuse, and in practice simply legitimizes it.

By the logic this tossed-off comment employs, deploying any money whatsoever to help someone get elected, even paying Kinkos for signs, or a website hosted out of an S3 bucket, even for a grassroots reformer underdog candidate, "directly leads to corruption".

Do you have an argument that would be persuasive to someone who didn't think the entire concept of a market economy leads inexorably to political corruption?

I'm not looking to persuade those, who think that buying power is good for society, they pretty much support corruption by design. This is addressed to those who oppose corruption, but didn't realize, Citizens United enables it on huge scale.

That's fine and coherent, but we should recognize that there are two wildly different conversations happening here, because the users of this site broadly favor the notion of market economies --- if not for, like, health care, then at least things like "sign printing" --- and most of them will not read your argument in the "markets are inherently corrupt" frame you intend them.

Please describe for me what your ideal rules would be for political contributions and/or expenditures.

Are all political contributions corrupt? If so, would we be better off banning them altogether? (Of course, then the only people who could afford to run successful campaigns would be the independently wealthy...)

If not, where’s the line? Citizens United was a case about a relatively narrow question, and the opinion was well reasoned. I believe it was correct. If you think it was wrongly decided, where’s the flaw in its logic?

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