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  • Jan 16th, 2013 @ 1:47pm

    My comment about this article over on the "Opposing Views" website

    This article also appeared over on the "Opposing Views" website, with the byline "TechDirt" (rather than Mike Masnick's name). Here's the comment I posted there:

    I'm now pushing 60 years old (to my chagrin, it's probably worth adding); and I've been an IT professional and high-tech & general management consultant for going on 40 years (though my current thing in life is my now-nearly-full-time ministry of agency/advocacy to/for the homeless, disabled vets, the indigent elderly, the prostituted, recent parolees and others similarly in need). I was using what has become today's Internet since before it was, technically, that; and I was right in the middle of alpha and beta testing stuff during the pioneering of what is, today, the "worldwide web" part of the Internet in the early 1990's. And so I not only know Swartz's kind, but have both worked with them, and had them work for me. I'm also, for whatever it's worth, a fairly-far-left-leaning both socio-politically and theologically liberal/progressive lifelong Democrat; but I'm nevertheless assiduously law-abiding. I write all that, simply, to establish that I might actually know a teenie, tiny thing or two about all this -- but, as my ex-wife would attest, probably ONLY a thing or two -- to give what I write next a bit of context.

    What Swartz did, bottom line, was unambiguously wrong. There's just no question or doubt about that, and there's no point in trying to sugar coat it or torture it to fit some open-source/hacker-type agenda. However, it's all a very tricky thing, really; an example, if ever there were one, of how our laws, today, haven't yet caught-up with the realities of an increasingly Internet/online-centric world; and how those who technically own all the intellectual property aren't adjusting thereto with a reasonable operational model. And the whole thing gets exacerbated and the opposite site get their backs all up because the open-sourcers/hacker and the intellectual property owners, both, use take-no-prisoners, scorched-earth tactics which just make both sides dig-in their heels and want to draw blood from their opponents...

    ...hence, at least in part, the intransigence of the federal prosecutor. It says, here, that the article is by "TechDirt," but, of course, it's actually Mike Masnick, on that website, who wrote the piece; and though I don't agree with EVERTHING he writes, he sure does know what he's talking about, and I have utmost respect for him. The most cogent thing he wrote in this article was this:

    "To argue that the prosecution was fair because they offered him a 6 month plea deal is complete and utter hogwash. As many have pointed out, it doesn't appear that Aaron should have been facing any federal charges at all. The 35 years is completely relevant, because that's part of the hammer that his wife was using to pressure him into taking the 6 month plea deal so that she and her assistant could get a big headline about another 'guilty' plea. To act like the 6 month offer is some sort of 'leniency' is insane when you know the details of the case and everything else that came with it."

    Amen! Swartz, I'm sorry, had become, as my ol man would have said, "too big for his britches" in any number of ways, as is common among child prodigies. The kid was beyond brilliant... the word "genius" doesn't even cover it; but, sadly, he knew and understood that, and didn't yet have the age, maturity and wisdom to properly parse and put into perspective what was going on. His lawyer probabaly tried to give Swartz the kind of perspective he needed to negotiate this mess, and maybe could have been better at it, who knows; but there is absolutely no question that the prosecutor, like most federal prosecutors (except, at least, my good buddy whom I won't name but who's a deputy US attorney in Indiana, and who's deeply moral and ethical and is on the side of the angels; and whom I wish like hell had been the prosecutor in Swartz's case) went too far; treated Swartz like she absolutely SHOULD treat some really egregious bad actor who really and truly DOES commit serious crimes that really and truly do harm people. Swartz was not such a criminal... and just how much of a criminal he ever really was is reasonably debatable.

    Given those kinds of realities, the very least this prosecutor could have done is pause and reflect and research and learn; and consult with really smart people like, for example, Mike Masnick, just to name one, and try to get a feel for the realities of Swartz's kind of acts in the context of a truly complex modern world where such as intellectual property rights, and Internet freedoms and access, are struggling against one another based on laws which, seriously, need to be updated. Even the argument is complicated, to wit: While it could, of course, be argued that if the open-sourcer/hackers, like Swartz, would just stop taking things, just because they can, then maybe the intellectual property owners would be more amenable to discussion; but the hard reality is that unless Swartz, et al, force the hand of said owners the way they do, then said owners won't even come to the table. So, then, what to do, what to do. The prosecutor, et al, say that what to do is follow the law; but even some intellectual property rights owners say that said law needs updating to reflect the realities of the world in which we now actually find ourselves.

    Oy. [sighs and shakes head in frustrated disappointment] It's a mess. One thing's for absolutey certain, though, and that's that Aaron Swartz didn't need to die for any of this. One of the greatest young minds in this nation -- yes, you read that right -- is now gone. Those of us who've been trained in suicide prevention and counseling know that no one -- and I mean NO ONE -- can ever be responsible for another person's suicide; however, young Mr. Swartz had only BEGUN to contribute and innovate and, yes, knock the status quo back on its heels a bit along the way in order to disabuse it of its inherent misguidedness. So young! His contributions, by the time he finished his life, however many years from now would, I promise, have been downright legendary. The sheer and unmitigated tragedy of his death cannot be underestimated; and the prosecutor's both ignorance of, and arrogance about that cannot be over-stated. Masnick really did say it best, to wit: "'s a bit simplistic to place the 'blame' for Aaron Swartz's suicide on the federal prosecutors..." but, "it is still quite reasonable to question their activities," yet "suicide is a complex thing and going all the way there may be going too far," too.

    Amen, again.

    It's very sad. I hope that, somehow, something good ultimately comes from all this. I won't hold my breath, of course, but I'm just sayin'. And almost greater tragedy would be if the prosecutors, Ms Ortiz and Mr. Heymann, never even pause to rethink any of this... which, sadly, is the way it'll likely be.


    Gregg L. DesElms
    Napa, California USA
    gregg at
  • Apr 29th, 2011 @ 3:33pm

    A copy of what I just wrote to Mr. Gannon

    Dear Mr. Gannon,

    I read on the TechDirt web site about the whole business of whether or not Mr. Masnick should have first sought your permission to link to your site from his; and I wanted to share some thinking about it with you, if you'll permit me (and I'll bet you're getting all kinds of hate email over it, so I hope you don't think this is yet another bit of that).

    First, I should tell you that I find disconcerting much of what Mr. Masnick writes; and I'm generally speaking, far more supportive of IP rights than he. I don't post much on his site, but I have several posts there which take strong issue with some of his positions (as well as several which don't, mind you).

    I've also been some 35 years in IT and have been on the Internet since MANY years before the Worldwide Web part of it even existed. And I've taken a keen interest, just generally, in IP law (albeit from a lay perspective) such that I probably know more about it than the average guy walkin' down the street (though, of course, I'd never dare take-on someone with YOUR kind of expertise).

    I'm also rather schooled in "netiquette," just generally. I've been around since the very beginning of chat rooms, USENET, forums, etc.; and I participated in some of the Internet's earliest discussions about what "netiquette" even was. And there's no shortage, out there, of postings and other writings by me trying to take others to school over their bad netiquette.

    I've also run some fairly large and popular web sites to which many wanted to link... the biggest and most famous of them being the LACI PETERSON web site (the family-owned and -opearated site which kept the world informed during the tragic missing person case of the pregnant Modesto, California woman who disappeared on Christmas Eve 2002, and whose body, and that of her unborn fetus, washed-up in the San Francisco Bay about three months later; and whose husband was later convicted of her murder and now sits on death row). I ask, by the way, that no one judge my web work by that site, as it is today. Whomever took it over after I left has fairly ruined it.

    On every site I've ever run, there have always been a relatively small percentage of people who email and ask permission before they link to the site. I mention the LACI PETERSON site, though, in part, because with a site getting as many thousands of hits per minute as it was getting back then (and the number of emails that I ask you to imagine), even a so-called "small percentage" was a whole lotta' permission requests.

    I've never really understood it, though, because if one goes back and reads about what the creators of the Worldwide Web part of the Internet had in mind in terms of hyperlinking and how it was all supposed to work, one can see, clearly and unambiguously, (and I was around, back then, so I also remember) that unlimited hyperlinking -- and not only without first securing anyone's permssion to so do, but, even more importantly, without anyone even giving it a second thought -- was the whole POINT of it all.

    The very notion of asking permission to link flies in the face of why the Worldwide Web part of the Internet was conceived during the late 1980s and early 1990s, and then finally brought online in 1994, in the first place. The notion of evan asking is a throwback to an earllier way of thinking about the entirely different paradigm of the printed word... only on PAPER.

    Given the very nature and logistics of the web, presuming that Able should have to ask for Baker's permission in order for Able to link to Baker's site is counterintuitive; so much so, in fact, that I know many webmasters (especially those who run BIG sites... like, for example, the LACI PETERSON site that I ran) who get really irritated by even being asked.

    "Why are you even ASKING me this," they think to themselves. "Just do it, and stop bothering me about it. You don't need my permission, for godsake! Geez." That, I think, is kinda' the point, albeit less directly, that Nina Paley makes in that to which Mr. Masnick links, above.

    Believe me when I tell you that the vast majority of those on the Internet think as I'm describing... hence the reason Mr. Masnick is now making such a big deal about it, now, on his site. Er... well... maybe that, plus he admittedly doesn't have much respect for some of your (and many other IP lawyers') legal positions, and so he's kinda' pokin' at you a little... which is understandable, you have to admit.

    And, seriously, Mr. Gannon, I'm not simply agreeing with Mr. Masnic, here, as a means of taking sides or anything like that. I'm not one of his minions (which it might surprise him to learn that he even had, if he actually has any) who's now bothering you about it as a means of also kinda' pokin' at you. I remind that I often don't agree with Mr. Masnick; and would never blindly follow him -- or anyone else, for that matter -- and so, I assure you that what I'm writing to you, here, really from my heart; and is the way it is, to wit:

    It is simply not generally considered necessary (and some even consider it an inconvenience and/or imposition) for one web site owner to ask the owner of a different web site for permission to link thereto. It is not only NOT a breach of netiquette to just go ahead and link, but the asking actually shows things down and kinda' goofs-up very POINT of the hyperlinking nature of the Internet's Worldwide Web.

    Therefore, it's debatable whether or not someone taking the time to email you and ask you is really being considerate. It's actually being a little bit inconsiderate, considering how everything's supposed to work. While it might seem like they've making a nice gesture, they're actually mucking-up the works, in a way.

    It's worthy of note, too, that all the major search engines clearly get this concept, as evidenced by how they rank a given web site higher in search results based, in part, on how many OTHER web sites link to it... other words, the more popular is a site, based on how many other sties link to it, the higher its search engine rankings. If a site owner wants his/her site to rank more highly in search results, then it is in his/her interest to have literally millions of other sites out there linking back to his/her site. Eventually, literally millions of sites linked-back to the LACI PETERSON site; and we calculated, one day, that if only a tiny fraction of those sites cause a linkback per hour, we'd be getting more visits in a morning than what vast majority of other web sites get in a year.

    And in the case of a site with literally millions of other sites linking back to it, it would take said site's owner literally YEARS just to read and respond to all the email link requests even if only a tiny fraction of them had the "courtesy" to ask.

    Think of it this way: Imagine that you print (or XEROX) a bunch of one-page fliers of some kind... oh... say... fliers which announce some talk that you're giving at a local law library or bookstore or something. When you printed them, you obviously expected that as many people as possible would see and read them.

    Assuming that people should ask permission first before linking to your web site would be approximately equivalent to assuming that people with your flier in their hands should call and ask your permission first before showing it to someone standing next to them. It's just silly and unnecessary. And, in fact, I'll bet you'd be irritated with anyone who bothered you with it.

    This is simply a situation where you, obviously, have not connected the flier analogy with the very nature of the Worldwide Web part of the Internet. Only if the web content were behind some kind of paywall or other construct which required that the reader have (or acquire) an account and then login in order to read said content might your permission presumption make at least a LITTLE philosophical sense, but only if the link somehow bypassed the login. However, even in THAT case, the registration and/or login process, itself, provides all the IP-related safeguards that would be necessary.

    I fear that Mr. Masnick's having called you on your IP-related opinions is what was REALLY gnawing at you (and I can understand that... his points can sometimes sting), but instead of arguing them on their merits, I fear that you deflected to what was actually a non-issue. This is a common thing, by the way, which all humans do; so no shame, there. We've all done it, and I'm sure we'll all do it again. It's just the way humans are.

    Anyway, I just wanted to share these thoughts with you. From my reading of your stuff, you seem like a good enough guy, good at what he does, works really hard at it, cares very much about it, and is out there sharing his notions about it with whomever will read it...

    ...which is the whole reason you even HAVE a site... no? If you wanted to control who saw it, you'd have a registration/login thing going on, no? And since you don't, are you saying that you don't appreciate the additional visits to your site that Mr. Masnick, whether or not welcome, is sending you?

    Any serious, experienced, professional web designer in the world will say that when it comes to site visits, it's a little like the ol' "I don't care what they say, as long as they spell my name right" sort of thing. A visitor is a visitor, regardless whether friend or foe. The whole point of having a web page is to have visitors to read what's on it. Period. It doesn't matter, an experienced webmaster will tell you, from whence they came.

    And a key tool in driving more visitors to a site is to have lots of others link back to it. Those are what are called "viral marketing" events; and there's nary a webmaster on the planet who wouldn't almost give a right arm for tons and tons of linkbacks -- with not a request for permission among 'em -- of the type that I suspect Mr. Masnick's site is now giving yours.

    Demanding that others first get your permission stands in the way of how all that works; and the solution, in any case, given the technology of the intended paradigm, is not to chide Mr. Masnick and his readers but, rather, to just assume that they'll link, and so, then, to put your words behind a login/password barrier of some kind if you don't want them read. Then, it wouldn't matter who links to your site; and, in fact, in that circumstance, said linking without your permission would, at worst, cause more people to register on your site so they could read your words.

    Again, that's how it all works. That was the design plan, from the very beginning. It's hyperlinking at its intended finest.

    I know this is flip, and I'm just kidding of course, but if I were in your shoes, knowing how many readers Mr. Masnick has, and how many visitors to your site he's likely now sent you, you should be pulling out your checkbook. Again, I'm just kidding... er... well... you know... sorta'.

    Hope that helps! Keep-up the good work.


    Gregg L. DesElms
    Napa, California USA
    gregg at greggdeselms dot com
  • Mar 26th, 2011 @ 10:17am

    The NY Times is obviously reading this web site

    Today, the NY Times has added the following beneath the
    China story:

    Editors' Note: March 26, 2011

    An article on Tuesday about Chinese censorship of digital communications began with a description of two interrupted cellphone calls, which were cited as possible examples of “a host of evidence over the past several weeks” that the authorities were increasing their efforts out of concern that antigovernment sentiment might spread from Arab countries. In one call, a Beijing entrepreneur lost his cellphone connection after he used the English word “protest” twice. In the second, a call was lost after the speaker twice used the Chinese term for protest.

    The article did not point out that in both cases, the recipients of the calls were in the Beijing bureau of The New York Times. Because scrutiny of press communications could easily be higher than for those of the public at large, the calls could not be assumed to represent a broader trend; therefore, those examples should not have been given such prominence in the article.
  • Mar 18th, 2011 @ 10:38am

    Excellent! And to think... from a mere Canadian!

    Ha! Ohmygod, that's funny.

    Mr. Carab was truly inspired.

    Gregg DesElms
    Napa, California USA
    gregg at greggdeselms dot com
  • Nov 4th, 2010 @ 12:30pm

    Missing the obvious, once again

    Yes, it's true that the bomber on the plane could employ a wireless trigger of some kind, without the aid of WIFI or cell phone connectivity...

    ...but good luck getting the triggering device, at least, past security. Cell phones, on the other hand, routinely and effortlessly clear security.

    As for the cell phone signal only being useful up to 500 or so feet: If you stop and think about it, the best moment (from a knucklehead terrorist's point of view) to trigger the bomb is just before the landing gear is retracted, just after the wheels are off the ground. Any pilot will attest that the plane is most vulnerable at that moment, when it is just becoming airborne... far more so, seemingly counter-intuitively, than while the plane's trying to land.

    If the plane explodes at that moment, it's not only going to kill everyone on board, but it will also more effectively rain the fiery mess down onto (and so, therefore, maim and kill) more people on the ground...

    ...and it's the NUMBER of people maimed or killed which most interests terrorists. That's why terrorist suicide bombers need rarely be feared when s/he's in the company of only a person or two... or even a crowd, as long as it's very small. Terrorists are interested in NUMBERS...

    ...and the greatest kill numbers can be achieved by blowing-up the plane when it's between 100 and 500 feet off the ground... at which there is plenty of cell phone signal.

    As far as confiscating cell phones, there's an easier way: Just have cell phone jamming circuitry in the ceiling of the plane along its entire length.

    WIFI is even easier to stop on a plane.

    Whether or not airlines should do it, I don't know. I both understand and appreciate the argument against it; I might even share it if I thought about it long enough.

    But make no mistake about the pure technology of it (and I say this from the position of someone with 33 years in IT and other forms of high-tech): Having the ability to communicate with the WIFI or cell phone receiver on a bomb trigger via a cell phone or smartphone or notebook/netbook computer -- all of which can get through security without a problem, where some kind of odd-looking wireless device with a button on it would likely not -- would be convenient, indeed, and invaluable, in fact, for any suicide bomber...

    ...or even for a bomber on the ground who simply found a way to get the WIFI or cell phone receiver controlled trigger and bomb onto the plane by some means.

    And though I understand the comments here regarding the unlikelihood of that given that the idiot terrorists, up 'til recently, couldn't even figure out how to explode their tennis shoes or underwear...

    ...only temporary sense of safety, at best, may be derived from them. There are many capable engineers who are either terrorists, or who are at least sympathetic. It's ridiculous to assume that they're all a bunch of Middle-Eastern equivalents of some dysfunctional character from an old episode of Green Acres... the most recent events in the news clearly demonstrate.

    Don't make the fatal mistake of underestimating this enemy. I'm not saying, as those on the socio-political right are saying, that terrorists are everywhere, or that it's a Muslim thing or anything like that. That's not what I'm talking about. As it is foolish to underestimate the ability of terrorists to finally learn how to get it right, it's equally foolish to believe that all -- or even most -- Arab-Americans (or even non-American Arabs) and/or Muslims are terrorists or even sympathizers. The VAST (and I strees the word) majority of Arabs and other Muslims are as alarmed and upset by knucklehead terrorists as anyone else.

    So I don't want to come across as though I agree with the alarmists. I'm simply saying that the technology required to connect a WIFI or cell phone controlled trigger to a bomb in a suitcase or piece of cargo in the hold of an airplane, and then to detonate it via either WIFI or the cell phone network as the aircraft's wheels clear the ground, but before it reaches an altitude of 500 feet, is easy. Scary easy, in fact. Getting it on the plane, though, would be not-so-easy... which, of course, means that the whole thing's not as easy, after all. But my point is that the pure technology of it, were airport security not a factor, is a no-brainer.

    And, by the way, for the record, I've gotten five bars of AT&T cell phone signal WAY higher than 500 feet in my life. So I'm only saying 500 feet elsewhere in this posting because another commenter suggested that cell phone signals above that altitude are essentially non-existent or are of such sub-standard quality as if to be effectively so.

    The comment about the solution being just banning all airplanes was kinda' funny, though. [grin]

    Gregg L. DesElms
    Napa, California USA
    gregg at greggdeselms dot com
  • Nov 4th, 2010 @ 11:24am

    The sheer numbers is the elephant in the room

    I agree that it seems, at least superficially, somewhat silly to blur a Google Street View image of a house when anyone can just walk or drive past in the real world and both see it just fine, and look at it all they want... you know... at least until someone in the neighborhood starts getting creeped out by their just standing there and staring at it. Still, given that, I completely understand why it's so difficult for so many people to understand what is the big deal about someone's home be viewable in Google's Street View.

    However, the thing that those very people seem to either forget, or not grasp, or maybe even just choose to not consider (which I've noticed is often true about young people who've grown-up in a high-tech world where privacy and other rights are rapidly disappearing) is the SHEER NUMBERS aspect of the Internet, and how that fundamentally changes the entire dynamic.

    In the real world, mostly only those who live in the neighborhood, and/or work there, and/or who visit the neighborhood for some other reason would likely ever see the home; and the knowledge of that -- the relatively small numbers of persons included in that -- affords the homeowner at least a SENSE of relative privacy... much the same manner as one can derive a relative sense of privacy even when on a public street in a crowd because, though it's right out in the open where everyone can see, all the other people around make it so that no one person is likely to be noticed all that much by anyone omnisciently observing the entire street. You know... a "hide in plane site" sort of notion. That same person walking down that same street would feel considerably less private if either the crowd were smaller, or s/he were completely alone.

    Granted, anyone from anywhere in the world -- and any number of them, to boot -- could physically travel to wherever is the blurred house and walk or drive past it unimpeded...

    ...but part of the homeowner's sense of relative privacy rests in his/her knowledge that most people won't go to that kind of trouble.

    Google's Street View robs them of that sense. And some people find that so disconcerting that they just can't live with it. Maybe -- in fact, I'd guess that -- a lot of them are a little older and aren't really that much a part of the whole Internet thing, and so are just too freaked-out by the notion of it. Who knows.

    In any case, I think it's very understandable that some people who live their lives more in the brick and mortar world than in the virtual one would be uncomfortable with potentially BILLIONS of people from outside their neighborhood being able to view their home as if they were, in fact, in their neighborhood.

    And there could be any number of other reasons, too..., for example, that they just don't want the ENTIRE world, beyond those in their neighborhoods, to know that... I dunno... to know that their house maybe isn't as nice as they wish it was, or that the don't maintain it as well as they wish they could afford to do.

    Granted, some of the reasons why they'd want the image of their home blurred might be nefarious. A jerk operating a degree mill from his home would obviously not want the world to know that his mill's "campus" is just a 4th Street townhouse... or worse.

    But I'm not talking about people trying to pull a fast one. Rather, I'm simply talking about people who've lived their entire lives in a brick-and-mortar world, who maybe use the Internet, or maybe don't (and if they do, it's just to look stuff up, maybe pay bills, maybe use email), and who have learned to live with those physically in their neighborhods (and those living close enough thereto to drive to them) being able to stare at their houses; but who just can't get their minds or emotions wrapped around the notion of even someone in Beijing being able to stare at it online.

    It just gives them the willies, even though they have a difficult time articulating precisely why. It just does, and they know it, and that's all there is to it.

    Does the advent of the Internet have the right to rob them of the difficult-to-articulate sense of relative privacy that they've enjoyed all their lives just so a new generation of youngsters who are rapidly devaluing and trading-away certain elements of their privacy in order to avail themselves of the new world of technology which now dominates their lives?

    I don't know. I say, probably not. I say that that new world should maybe have a little respect for the old one; and should at least wait until those of us in that old one have died-off first before finally denuding whatever world is left of all sense of relative privacy... is, clearly, the direction in which we're all headed.

    Friends and family tell me it's morbid, but at age 54, and with maybe 20 to 30 years left on this spinning rock, I've been saying, alot, lately, that I'm kinda' glad I wont' be around to see what becomes of this place... nearly complete loss of privacy, loss of certain civil rights, global warming and concomitant climate change and rise in sea levels, corporations with the same rights as people, the complete extinction of the middle class and the gaping maw that will become the gap between the rich and the poor (and all which naturally attends that)...

    ...and more. Indeed, I'm glad I won't be around to see the apex of THAT trend's curve. Though I do feel sorry for the young. They will have really missed something; and I fear that the quality of their lives will be gravely diminished, yet they won't even realize it... as most of them have no idea what they're both ignoring, devaluing and trading away.


    Gregg L. DesElms
    Napa, California USA
    gregg at greggdeselms dot com
  • Oct 27th, 2010 @ 10:42am

    Oy... this should all not be taken so seriously

    Of course the story needed to be told, and so thanks, Mike, for so doing. And you're right about how silly it is, and how the paper would likely not have a foot on which to stand in court.

    But this little "newspaper" is a joke... and I don't mean just for its silly notices and threats.

    It's an ultra-conservative rag that's not only so amateurish as a rag, but is also so disconnected from how the Internet works, that's it's not even worth reading or even taking seriously as a "publication."

    It's a joke. Just ignore it.
  • Oct 27th, 2010 @ 10:35am


    ...these things involve the use of x-rays, right?

    And x-rays accumulate in our bodies throughout our lives, hence the reason persons who work in radiology departments must wear lifetime badges which measure their accumulated rads and tell them when it has built-up to the point that they can't take anymore without risking things like cancer, or flat-out radiation sickness... right?

    If so, then, how is pointing one of these things at me on the street not assualt with a deadly weapon?
  • Oct 13th, 2010 @ 10:40am

    (untitled comment)

    What the school did was abominable; and I've never been able to understand why no criminal charges were filed. If an individual male teacher did, on his own, precisely the same thing, he'd be called a pedophile... or at least an attempted one; and would likely be arrested (and rightly so). This whole thing was just unconscionable... is the lawyers getting most of the settlement.

    Hmm. Couldn't we just drag both the school officials, and the lawyers, behind an old Dodge pick-up for a few blocks... you know... just to get their attention? (Kidding, of course... but, hey... one can dream, can't one?)
  • Oct 13th, 2010 @ 10:29am

    (untitled comment)

    One time I saw a motorcycle officer in a gas station lot using the radar gun, and I pulled-in and boldly asked him if he'd help me figure out how accurate was my car's speedometer. To my surprise, he agreed. Pretty nice guy, actually. More on that in a second.

    So we agreed that I'd approach him going precisely 30 MPH (according to my speedometer); and that I'd make a couple of passes and we'd compare the results.

    His radar gun said I was doing 28 MPH both passes. And on both passes I had managed to by-golly set the needle right on 30 MPH.

    This result squared with one of those automated, lighted speed warning signs that I knew of where the digital display thingy tells you how fast you're going as you approach the sign. It, too, said that I was going 28 MPH when my speedometer said 30 MPH.

    And as expected, one day when I found one of those lighted digital sign thingies on a street with a 50 MPH limit, my speedometer was about 4 MPH off when I pegged the needle at 60 MPH (in other words the digital sign said I was going 56 MPH.

    So then I repeated the entire process with my wife's car... and it, too, had around a 2 MPH speedometer error at around 40 MPH, and around a 3 MPH error at 60 MPH... in both cases, she was actually going slower than the speedometer said she was going.

    Three or four miles per hour error at 60 MPH is not insignificant. Assuming that most cars have a minimum of that level of error, and others are even a little bit worse, then it seems only fair that there should be around a 10% allowance.

    And, indeed, that's what the motorcycle cop said was his policy... though he confessed to just making it 5 MPH rather that calculating things in his head. He said that anyone going up to 5 MPH over or under was fine with him; but that anyone going over 5 MPH faster than the limit earned them, at minimum, a written warning; and depending on how fast they were actually going, whether or not they were staying with traffic, and what was their driving history, he'd either give them a written warning or a ticket, at his discretion...

    ...which is exactly as it should be. Cops should (and in most jurisdictions, do) have that discretion, and that they actually use it does not make anything "arbitrary."

    There must be lines drawn somewhere, so there will always be someone who isn't punished on one side of a line, and someone who is on the other. That's just the way of things. How else can it be handled? It's the way in court, too. It's one level of severity for a speeding ticket up to 15 MPH over the limit, and an entirely different (and higher) level of severity for driving more than 15 MPH over the limit. And at some point (I think, in most jurisdictions, it's 25 MPH over the limit and higher), the becomes, categorically, "reckless driving."

    Those demarcation points aren't "arbitrary." They're just demarcation points... because the lines have to be drawn SOMEWHERE... and, again, there will always be people on either side of those lines who get, because of that, treated differently.

    I suppose a more fair way would be to have some kind of point system so for each MPH over the limit, the severity is increased by one point; and points convert into fines or jail time or whatever. But that's not how most states do it. And I don't think any of them are going to change how they do it anytime soon.

    It seems to me that Garfield Heights was kinda' silly, in this case, though. Had I been running that show, here's how I would have done it...

    Anyone going from zero to five MPH over the limit gets a letter explaining that up to five MPH falls within typical speedometer error, and so there will be no consequences; but please slow down and try to do better.

    Anyone going six to ten MPH over the limit gets a written warning if they haven't had a ticket in... oh... I suppose five years would be a good number; and anyone who has had one or more tickets in that time period get a ticket.

    Anyone going 11 MPH or faster over the limit gets a ticket; and the severity of the ticket would, of course, increase as the number of MPH over the limit increased, per state law.

    As far as the refund, had it been set up the way I just described, they'd not have had to have refunded very much; and I don't believe I'd have refunded anything at all.

    The police saying that they'd only cite for 11 MPH or more over the limit was not legally binding, and I believe I'd have just shrugged my shoulders and said, had I been the police chief, "oh, well." And the reason I'd be unapologetic for it would be because, no matter what, those going up to 10 MPH over the limit were speeding. Not citing them would have been a gift; and so the police ended-up not giving that gift after all. So, what: They were still speeding.

    Proper policy for ANY jurisdiction should be to allow up to 5 MPH over the limit, with verbal or written warnings at the officer's option for those drivers; written warning or citation for 6 to 10 MPH over the limit (at the officer's discretion); and then pretty much (but not necessarily) mandatory citations for 11 MPH or more over the limit, again at the officer's discretion.

    One time my car's speedometer cable broke, and I was literally on the way to the ARCO station where the mechanic I liked said he had just received the one he ordered for me, and was waiting for me to arrive so he could install it. I went with traffic on the way there, and got stopped by a police officer for speeding. He said I was going 12 MPH over the limit..., even he admitted, was everyone else. When I told him about the cable, and offered to have him follow me just three more blocks to the station so he could confirm that, indeed, that's where I was headed, and that there was a new cable awaiting me there, he balanced that against that I hadn't had a ticket in something like 17 years, and he let me go without even a verbal warning. Even told me to have a nice day.

    Every moment of any situation has context; and reason and fairness should rule such moments. Sadly or not, sometimes there are demarcation points involved, and those on one side get treated one way, and those on the other get treated a different way, and we rely on the fairness, reason and mercy of cops and prosecutors and judges to mete out justice. It is what it is, and I'm not sure there's any one right or wrong way to do it.

    What more or less can anyone say?

    Gregg L. DesElms
    Napa, California USA
    gregg at greggdeselms dot com
  • Oct 9th, 2010 @ 3:13pm

    (untitled comment)

    From the article: EU's ACTA negotiators apparently held a briefing about the latest draft, and apparently they ordered the WiFi in the room turned off, to stop real time reports from "leaking" to sites like le quadrature and Wikileaks. Apparently, EU negotiators are unfamiliar with mobile data and sites like Twitter, where reports of the meeting were posted in real time by folks like David Hammerstein.

    Gregg's respone: Well, shame on any reporters harmed by the WIFI being manipulatively turned off. Any reporter during the briefing who sat with a notebook/netbook on his/her lap, or who sat or stood with a smartphone in his/her hand, either of which relied on WIFI, ultimately gets exactly what s/he deserves.

    At bare minimum, a reporter's Internet connectivity should be by his/her own provision by whatever means which no one (except by unintentional/unplanned ISP system failure) could manipulatively turn off. Any reporter's computer or smartphone should have its Internet connectivity be only via a mobile data 3G/4G internal card or external USB dongle whenever s/he's not in his/her own controlled environment (home, or work... or at least someplace where no one's likely to have a stake in stopping him/her fromm connecting).


    Any reporter not so equipped is a doofus.

    Gregg L. DesElms
    Napa, California USA
    gregg at greggdeselms dot com

  • Oct 9th, 2010 @ 2:34pm

    When Mike's right, he's REALLY right

    I come in here now and then and take issue with Mike, and it sometimes makes me feel bad...

    ...and so when I so 100% agree, it seems only fair that I'd get in here and say that, too.

    Paywalls, when it comes to newspapers (and other forms of news dissemination) don't work. In fact, they harm. It's a faulty business model which has been tried over and over, and which always ultimately fails.

    What I despise most, though, is newspaper web sites which post free content, but then it expires behind the paywall after a couple of weeks... what I call the "crack dealer on the corner" approach to news dissemination.

    Mike, on this (and so many other subject, truth be known) could not be more right.

    Gregg L. DesElms
    Napa, California USA
    gregg at greggdeselms dot com
  • Oct 5th, 2010 @ 11:35am

    What the...

    Why are we even having this discussion?

    The Starbucks should simply use OpenDNS, and invoke the porn filter. Simple as that. Shame on it for putting the employee in that position.

    The employee should not have been fired, though. He should simply have been told to just report the problem to management. If management allowed it after that, then the employee would have to decide if that's the environment in which he wanted to work; and the employer would need to think about whether it was creating a hostile work environment. It seems to me that employees of a coffee shop should be able to have a reasonable expectation of not having to be exposed to pruient materials in such a workplace.

    If I operated a Starbucks (or any similar business), I'd not want people sitting at my tables watching porn, either. If each customer were in his/her own little cubicle or something, with headphones, and no one could casually see what was on their screen... well, then, that might be a different matter.

    I hate porn, but there are some free speech issues which trump the morals and so it is what it is. If people want to watch it, fine.

    But others in places like coffee shops where children are often present should be able to have the same expectations as employees: That they should not have to be exposed to others' pruient materials and habits in such places. While those watching have the right to so do, others should not be forced to watch them watch it; or to have to avert their eyes to keep from accidentally seeing it, or having their children see it. That, were it MY business, would trump all.

    And I won't even venture into how easily I'll bet I could make a case, were I the prosecutor, for sexual abuse of a minor against the adult who neglegently allowed children to see his porn in a public place where there should normally be a reasonable expectation of such a thing not being possible.

    This, as earlier-stated, is a silly conversation. Complex legal and/or technical arguments need not be made nor analyzed. This is freshman-level, "logic" and "reasonableness" 101.

    Gregg L. DesElms
    Napa, California USA
    gregg at greggdeselms dot com

  • Oct 2nd, 2010 @ 12:20pm

    (untitled comment)

    The "Update" contained: "In the comments, it's been pointed out that Uteck has now backed down and is saying she'll start ignoring the fake tweets now saying 'I don't want the police to waste any more precious resources on it.' Seems kind of a shame they had to waste any resources on it, doesn't it?"

    Ah, such wisdom in hindsight. Indeed, she probably overreacted. But some people take their reputation and the sole use of their identity kinda'... oh... I dunno... seriously. Silly them.

    She cannot be blamed for availing herself, until she better understood the bigger picture, of the resources she perceived appropriate. After all, it does say "to protect and SERVE" on the sides of their patrol cars.

    Gregg L. DesElms
    Napa, California USA
    gregg at greggdeselms dot com

  • Oct 1st, 2010 @ 11:12am

    Once again, I must respectfully disagree

    I agree with so much written on this web site that it always pains me a little to disagree; but, then again, that whole back-and-forth is what America is all about.

    The article contained: "I'm not familiar enough with Canadian trademark law to know how this works, but it does seem pretty silly either way. It's not as if anyone seeing the magazine would think that the carnival endorsed the magazine or anything. The illustration seems like a clever way to graphically illustrate the province of Quebec by using a symbol closely associated with it."

    I cound not more strongly disagree. And except for the accurate slander correction in Mr. Masnick's response to the "IP is a funny thing" posting, I disagree with most of that, too.

    There is a long history of case law which finds that the purpose of copyright and trademark amount to a whole lot more than that. One of the things I find irritating about some of what's posted around here is that it is often about how the writer wishes things were, and not so much about how they actually are.

    And I would argue that if the holder of a trademark can't use the law to keep his/her trademark (an image in which s/he has invested huge amounts of money to be used by only him/her, and only in ways which benefit him/her) from being misappropriated and misused by others for their purposes (which may be directly in opposition to those of the trademark's rightful owner), then of what value is it?

    Trademarks are about image as much as anything else, and those who own them naturally do not want that image sullied by having them used by others in ways which somehow associate them, in the minds of those who see them so used, with controversy or negativity. In fact, most trademark holders don't want them used by others at all... for any reason. And that's their right. It's part of what trademark protection affords them. And while those specific protections may or may not appear in the original trademakr statutory language, the volumes of case law since have clearly and unambiguously established them.

    I, for example, had (and still kinda' have) a web site planned for a religious organization I'll likely be creating which involves a mascot-like cartoon character. If I develop it and the site and the organization, I can assure you that its image will be almost as important as anything else it does. And as "love your fellow man" as the organization will be, I can promise you that upon the first misappropriation of the cartoon-like character mascot by anyone else for any reason, I and the organization's law firm will fall on the misappropriator like an old building. I'll make Islam's being upset about anyone showing an image of Muhammad look like a bunch of children playing jumprope.

    And part of the reason I'll be able to sleep at night after having forced the misappropriator to sell his house, his car and his Webber Kettle in order to pay me is because in multiple places on the web site will be my contact information, and notices that all one has to do to freely use anything on the web site is contact me and seek my permission; and I will assure (and my track record in life suggests that said assurance will not be empty words) that I will nearly always grant said permission as long as the intended use is fair... even if it's critical... just as long as it's fair (and balanced, and all that kinda' stuff).

    But use my trademarked image without having first obtained permission -- no matter the use -- and just watch what happens. It's either permission in advance, or nothing. End of discussion.

    Any operator of any entity which owns a logo, or an image of a mascot, or anything similar which conveys said entity's image and unique identifiability would be in gross breach of his/her fiduciary responsibilities to said entity if s/he did not vigorously protect said logo, or mascot image, under any and all circumstances.

    I'm happy for Mr. Masnick that he wants to (and clearly seems to sometimes believe that he actually does) live in a world where things are more relaxed, and more "live and let live," where everyone can get along, and where no one does anything which results -- either overtly or covertly -- in real harm to others; and I'd characterize that, here, as but a fairy tale world...

    ...except that even Mother Goose and the Brothers Grimm recognized evildoers when they saw them.

    Gregg L. DesElms
    Napa, California USA
    gregg at greggdeselms dot com
  • Sep 8th, 2010 @ 9:07pm

    Fair use, anyone?

    It sounds like the candidate only used parts of LVRJ's content, no?

    If so, then why isn't "fair use" anywhere in the discussion? Did her use of just parts of LVRJ content constitute "fair use?"

    If so, then the candidate should let it go to trial and send out a message of her own.

    Gregg L. DesElms
    Napa, California USA
    gregg at greggdeselms dot com
  • Sep 8th, 2010 @ 8:41pm

    Re: Re: Hmmm. I think maybe I don't completely get it

    @abc gum wrote: "Maybe you will see what's wrong with it after you start getting two or three pre-settlement letters in the mail every week."

    Gregg DesElms's response: Please don't misunderstand me. I agree that the tactics of LVRJ, et al, would at least appear to be over the top.... probably, in fact, are. Who knows.

    But we seem to have two different issues, here. One is how abominably LVRJ, et al, would seem to be behaving; and the other is LVRJ's right to use copyright law to keep others from capturing its pageviews which contain its advertising from which it rightfully derives revenue.

    I'm a socio-political progressive... a lifelong Democrat... a so-called "bleeding-heart liberal." It sometimes surprises people, then, that I can be so pro-business under certain circumstances. And one of those circumstances is when it comes to something so basic to our capitalist system as a business's right to exist and thrive by means of its receipt of a fair price in exchange for its provision of goods and/or services. My concern about the complaints against LVRJ, et al, is that at least SOME of them would seem to wish to deny LVRJ, et al, its most basic right to a fair price in exchange for its product... in this case, its copyrighted materials to which US copyright law -- flawed though it may be for the time being -- allows to be assigned a value.

    For LVRJ, et al's aforementioned abominable behavior, I personally believe that it should be sanctioned if, in fact, it turns out that it has done the bad things that are alleged around here. I can think of SEVERAL states where the Court would simply not tolerate such shenanigans.

    But LVRJ has the absolute right to use copyright law to keep others from publishing substantially all of its content on their own web sites, thereby depriving LVRJ of the revenues which it would have derived from the page views resulting from said content being viewed on LVRJ's own web site, alone. A link-back from the offending web site to the content on LVRJ's web site is simply not adequate; and I'm astonished, frankly, to read here that anyone thinks it is.

    Do I really need to make the any-dope-can-intuit point that few (if any) who read the content on the offending site will then click on its link back to the source LVRJ site (one source of revenues to LVRJ: the pageviews or impressions); and/or the other c'mon-who-can't-figure-out point that even those who do click back are unlikely to spend enough time there to be sufficiently rapt by its ads to then click on any of them (the other source of revenue to LVRJ: the clicks-thru)?

    Obviously, LVRJ can't control what people publish of its content on their own sites pursuant to "fair use." And if LVRJ, et al, is disingenuously pursuing people for that, then that's over the top, too; and, if so, then there should, again, be sanctions... at least once the Court is able to see the abusive pattern.

    I'm also not wild about the letters LVRJ, et al, sends out, knowing that most people will settle; and the settlement amount intentionally being just less than what it would cost the recipient to defend himself/herself, thereby making settlement all the more attractive. That's a tactic not dissimilar to what domain name squatters use. They know the minimum which must be invested to win a WIPO hearing, and the cost to actually pursue it, and so they routinely ask for a little less than all that in exchange for the domain name right after getting the first threatening letter... and they usually get it.

    Either thing is despicable. No argument here.

    I also appreciate how despised LVRJ, et al, has become for suing first and asking questions later. That's also just not the right approach. It's expedient, though... and, like it or not, the law clearly allows it. But it's still not right... not if being reasonable and humane is on anyone's agenda.

    But the reason Righthaven is doing it is clear. It's intending to not merely trouble those whom LVRJ, et al, have caught purloining its content; rather, it's bygod intending to be the freakin' angel of freakin' darkness to them...

    ...with the obvious intend of the word spreading across the Internet about it, and thereby intimidating others from even THINKING of doing it. It's called making an example.

    I'm afraid that if I were counsel for LVRJ, and it asked me if that was a strategy worth considering, I'd have to answer that it technically was, but that I wouldn't recommend it on all manner of general, overall fairness and reasonableness grounds. But if my client directed me to do it, and so doing was lawful, then I'd have to either vigorously comply, or equally vigorously return my client's retainer so he can give it to some other lawyer.

    Even the criticism around here of Righthaven for purchasing the rights to something which had had its copyright violated by someone BEFORE said purchase; and then Righthaving going after said someone for its copyright violation AFTER said purchase, is simply flawed thinking.

    If the Court deprived LVRJ and Righthaven of its ability to conduct such a transaction, then the said Court would be flying in the very face of both the letter and spirit of both copyright law, and the Uniform Commercial Code (UCC).

    Part of the value to a buyer of LVRJ's content is not just what could be earned through advertising from publishing it (or whatever other obvious uses the buyer can think-up for it), but also the value of what could be derived from judgements or settlements payable to the content's new owner resulting from others having violated its copyright, even prior to its sale. The potential "asset" which is what could be derived from copyright violation judgements transfers from the seller to the buyer along with the content itself.

    C'mon, folks: A community college sophomore taking a 200-level business law course learns that.

    Let's say, hypothetically, that Able wishes to purchase a retail business from Baker; and let's say that Able and Baker agree that a fair price for said business is three times its annual revenues.

    Let's say, though, that Chase had recently accidentally driven his car through Baker's front window and had caused $100,000 in real damage, plus the loss to Baker of some not precisely known, but nevertheless estimable amount in revenues lost during repairs (plus whatever else for things like duress, inconvenience, attorney fees, court costs, etc.).

    In such case, would not the true value of Baker's business for purposes of selling it to Able be not only thrice its annual revenues, as Able and Baker had already agreed; but also the $100K in actual damages plus whatever else the Court decides (or is settled upon) between Baker and Chase?

    For a judge to deny Righthaven the ability to purchase the rights to LVRJ's content even AFTER its copyright had been violated, and then to sue pursuant to said violation and derive value therefrom once Righthave owns said rights, would be the same as a judge ordering in our hypothetical that Baker could not consider the amount that Chase will ultimately be paying to Baker's business as part of the net value of said business for purposes of selling it to Able.

    The UCC is clear: Unless otherwise agreed to, when one buys a thing, one buys, along with it, its both assets and liabilities. If said thing is a business, then a pending judgement in said business's favor is as much an asset as its payables are liabilities; and so the potential value of said judgement factors-in to said business's net value... and, more importantly, may be transferred as part of a sale of said business.

    That's why the UCC prohibits one from selling either a business, or substantially all of its assets, without first notifying one's creditors of one's intent to so do, so that said creditors may protest if they believe that either the assets, or the buyer, would not satisfy the debt owed to the creditor which either the buyer would then owe if its the entire business and all its both assets and liabilities are being transferred to said buyer, or which the seller would then owe if it's only substantially all the assets (but not any of the liabilities) being transferred to said buyer.

    When LVRJ sells the rights to its content, the same rules apply. Unless otherwise agreed to by the parties, the value of the content includes any potential (or actual) judgements in its favor which exist at the time of its sale, as well as any potential (or actual) judgements against it at that time.

    If the content's copyright had been violated prior to its sale, then the potential value of whatever judgement may be ultimately won as a result transfers with the sale of the content to its new owner... just like any other, in effect, receivable. Granted, said "receivable," if it can even be called that at that point, is speculative, and so doesn't really become a receivable, from an accounting standpoint, until there's a judgement in the content's favor. But, still, in terms of the seller's and buyer's agreement as to the value of the content, for sales purposes, the UCC says that the potential of the judgement amount resulting from the content's copyright having been violated even BEFORE the sale has transferable value. Period.

    Moreover, to complicate things, in most states, the buyer's payment to the seller of the not-quite-yet-an-asset part or aspect of the transferred goods (the potential income from suing for copyright violations against the content, in this case) can be conditioned on the buyr's ultimately actually receiving any income therefrom...

    ...and right there is where the APPEARANCE (and I stress that word) of LVRJ taking some kind of cut from Righthaven's suit proceeds could happen. The parties can agree that the seller can transfer the content to the buyer, and accept only its value sans potential lawsuit income; and then, by agreement, the value of the lawsuit part of the sale price can be paid by the buyer to the seller if the buyer, in fact, ultimately succeeds at obtaining revenue from a lawsuit related to the content's having had its copyright violated.

    No on has the right, in any case, to stop the new owner of the content from then going out and trying to convert that potential judgement amount into some kind of actuality... otherwise, it was never potential value in the first place... and that would be contrary to the UCC's both spirit AND letter. Forget copyright for a moment: What can be transferred as part of the sale of something, including revenue not yet earned (or liabilities not yet paid) is clear and unambiguous in the UCC.

    Again, I realize that there are more issues than that; and that Righthaven has acted, apparently, disingenuously in several cases along the way; and that there are other troubling concerns. But those are separate issues from the parties' rights under copyright law and the UCC.

    Look, just because one (LVRJ, et al, in this case) can do a thing doesn't mean that one should. Yet, that said, the fact that one could if one wanted to (and was willing to endure the criticism) means that one bygod ultimately can... no matter who hates it (or one) for so doing. In this case, LVRJ, et al, is willing to endure the criticism, and the law says it can behave as it has, and so it's so doing. And there's nothing anyone can do about it.

    Perhaps what we should be talking about, here, then, is how the web site owners may comply with the law, and so will be less likely to run afoul of LVRJ, et al -- or any OTHER copyright holder, for that matter -- in the future.

    Publishing substantially all of a copyrighted work is both wrong and actionable, under the law. Period. A mere link-back to the source of the copyrighted material won't feed the bulldog...

    ...and, by the way, this web site's turning around and then characterizing that as that LVRJ, et al, "doesn't like link backs" is also disingenuous. LVRJ, et al, unless I'm mistaken in my having figured this all out, isn't saying that it doesn't like link-backs, categorically. Rather, it's saying that link-backs are insufficient to cure the harm caused by someone publishing substantially all of its copyrighted content on any web site other than its own; and so, therefore, it doesn't like link-backs not categorically but, rather, as a means of the offender trying to somehow make it it alright.

    Framing it as though LVRJ, et al, doesn't like link-backs, just categorically, bereft of context, is punching below the belt. It's the rough analog of saying that Hitler didn't like people who wore yellow six-pointed stars on their clothes. Everything -- and I mean EVERYTHING -- has context. The characterization of LVRJ, et al, simply not categorically liking link-backs was intentionally misleading. Shame.

    The bottom line is that one may, on one's web site (or blog or whatever) only publish what is "fair use" under copyright law... a snippet... a small amount to make a point or to refer, or to educate, etc. That's it.

    If a blogger publishes substantially all of the LVRJ's content -- even with a link-back -- which is far in excess of what "fair use" would allow, then said blogger should not be surprised to ultimately learn that there are consequences to that kind of bad behavior.

    That's the point that LVRJ, et al, is trying to drive home, and it has simply chosen to do it like a bull in a china shop instead of deftly and fairly and what most people would consider more reasonably and humanely. LVRJ, et al, has decided to take no prisoners as a means of warning those who are considering violating its copyright to think twice.

    Similarly, the Hun chopped off the heads of its conquered infantry and put them at the top of acres of pointed stakes at the outskirts of its conquered territories to dissuade those contemplating coming after them. LVRJ, et al's is a Hun-like "fall on 'em like an old building" approach, clearly intended to slam-shut the sphincters of bloggers and web site owners everywhere.

    And, oh, look: It would certainly appear to have intimidated @abc gum, for one.

    I'm not saying that copyright law isn't screwed-up. There are issues. But the law, UNTIL AND/OR UNLESS IT'S CHANGED, is the law. Web site owners, bloggers, etc., need to be mindful of that; and the need to FOLLOW the law.

    Life, I tell you, is just so much easier when you simply follow the law. If the law's wrong, then don't break it, for godsake; rather, CHANGE it.

    The way our system is structured, you can only just up and ignore/break a given law if it is facially (and that's the operative word: prima facie) unconstitutional; and you also have the time, energy and money to fight in court your having run afoul of it until you get it in front the Supreme Court to have it DECLARED unconstitutional (and so, then, your having originally run afoul of it also declared inconsequential).

    @abc gum wrote: "It's not a matter of if, it is a matter of when."

    Gregg DesElms's reply: Maybe for you... I dunno. But I, for one, FOLLOW THE LAW. See above. The only people who should be worried about it being a matter of "when," and not "if," are those who tempt fate by breaking the law...

    ...or, in fairness, perhaps by only APPEARING to have so done if it's, in fact, true that Righthaven has been reckeless about whom it pursues.

    I'm sorry to take this position where I know it is so unwelcome. But it's time the entire situation is seen for what it actually is, and not what some around here wishes it were. I'm not saying the LVRJ, et al, is blameless or innocent or isn't behaving badly. All I'm saying is that... well... maybe this joint should develop a little more respect for the law, no matter how much it disagrees with it. If it spent as much energy on getting the law changed as it does whining about it, maybe something good could happen.

    And, by the way, by way of disclosure: I have never even read the LVRJ, much less know anyone there, or have anything to do with it. Ditto Righthaven. Nor am I a plaintiff's attorney. I'm not expressing these opinions because I have some kind of vested interested. I'm expressing them because right is right, and wrong is wrong, and fair is fair...

    ...and at least SOME folks around here would at least SEEM to have gotten all confused about that.

    Sorry to have raised anyone's hackles.

    Gregg L. DesElms
    Napa, California USA
    gregg at greggdeselms dot com
  • Sep 8th, 2010 @ 5:02pm

    (untitled comment)

    Though at this writing it is still awaiting moderation (but should appear there soon), here is what I posted as comment beneath the Ms Boyd's Huffinton Post article:

    It would probably help for anyone wishing to more fully grasp where I stand on all this to read my recent Facebook posting at

    To Ms Boyd: Thank you for your thoughtful and skillfully-crafted article. You clearly mean well; and to the depths of my soul, I know that you are, indeed, the passionate (and compassionate) activist for women's rights and protection that you claim. But, godloveya', that you clearly believe there can be such a thing as "consentual prostitution" (as may be intuited from your stated belief there can be such a thing as the nonconsentual kind) conveys to me -- who has spent many more years than you (and far deeper in the trenches while) understanding prostitution, and helping those victimized by it -- that your grasp of it all is intellectual, at best... and sorely misguided and flawed, in any case.

    I would give almost anything for the chance to help you see prostitution, and all which surrounds it, as I have... so that perhaps you would stop both believing and writing such as you've written here.
    I'll probably write a fully-developed rebuttal, but at the moment I'm so exhausted from processing all the ways that you're just... I'm sorry... just WRONG in this piece, that...

    ...well... I honestly barely know where to begin.

    [sigh] We'll see.


    Gregg L. DesElms
    Napa, California USA
    gregg at greggdeselms dot com
  • Sep 3rd, 2010 @ 3:57pm

    Hmmm. I think maybe I don't completely get it

    Linking back to this article, I just posted the following on my Facebook wall...

    Mike Masnick over at TECH DIRThas been making a lot of noise lately about the Las Vegas Review Journal's (LVJR's) use of a law firm (of seemingly its at least partial creation) called "Righthaven" to go after those who purloin its web site's content.


    I'm having increasing difficulty seeing Mike's point, though. He decries in this article LVJR's interest in getting advertising content in front of its readers, which is ultimately a huge reason why LVJR doesn't want others reprinting its peices in whole or in part... even with linkbacks.

    Granted, many of Mike's arguments against the current state of the US copyright system are spot on. And LVJR's and Righthaven's overboard guerrilla tactics are probably far beyond what the framers of copyright law ever envisioned.

    But beyond just and legitimate "fair use," over which LVJR correctly has no control, I'm having trouble seeing what's wrong with LVJR's vigorous attempts to control its property as a means of ensuring more ad views.
  • Aug 19th, 2010 @ 10:44am

    The mall's right to be private, notwithstanding its public nature

    From the article in chief: "However, in the end, I still find this troubling. If the mall wants to have such a ridiculous policy, with such ridiculous results, why should the government stop them from doing so? I would imagine the mall has other rules for determining who is and who is not allowed to patronize the mall. What's wrong with letting the mall create such a silly policy?"

    GREGG DesELMS's RESPONSE: Nothing's wrong with it as long as the mall is considered -- not only as a matter of law, but as a practical matter, as well -- a completely private place. But with the ubiquity of mall space in America has come its transformation, albeit involuntary, into a part of the public town square. And in THAT place, protected speech may not be silenced. As a PRACTICAL matter, the Court was correct.

    Gregg L. DesElms
    Napa, California USA
    gregg at greggdeselms dot com

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