Friday, November 30, 2007

How to access blocked web sites

This video shows you some great tricks for accessing blocked websites.If you ever have problems with blocked sites at work, college or university this video is the perfect solutions.

read more | digg story

Roget:

This is a good read ... its what I have to do to leave a comment on Bill Palmer sites.

My girlfriend has been having a lot sites blocked at work so I wanted to post this as a quick FYI to her as well.

Last Day To Submit For $100 Early Adopter iPhone Credit

For early buyers of Apple's iPhone in the U.S., today is the last day to submit a claim for the $100 store credit made available after the unexpected price drop on the 8GB iPhone. Users can redeem their credit via Apple's website. Note that while today is the last day to submit a request for the coupon; the coupon itself does not expire.

read more | digg story

Thursday, November 29, 2007

An analogy

Microsoft makes noodles by machine

Apple makes noodles this way ...

Report: EMI looking to slash funding for RIAA, IFPI

EMI is reportedly preparing to significantly cut its funding to trade groups like the RIAA and IFPI. If true, it may force the RIAA to reassess its commitment to its ongoing legal campaign against P2P users.

read more | digg story

Wednesday, November 28, 2007

USA Today / Gannet NewsWire covers Bidzirk vs Smith

Gannet Writer; Barbara Wall Says Bidzirk vs Smith Has Immense Political Implications


A blogger who wrote for the purpose of conveying information to the public is a journalist under federal trademark law, a South Carolina federal court recently ruled. (BidZirk, LLC v. Smith, Oct. 22, 2007.) This issue before the court parallels a similar question currently faced by Congress in deciding who should be protected by a federal shield law.
The case decided last month arose from a four-part article posted by Philip Smith on his blog in 2005. Smith wrote about his experience using BidZirk, a company that takes items on consignment and sells them on eBay.

In the articles, Smith discussed the positive and negative aspects of using eBay auction companies and voiced some complaints about BidZirk and its president. Smith illustrated the articles with BidZirk's logo.

The company sued Smith for defamation, invasion of privacy and violating a federal law that protects trademarks from being used in a misleading way.

The federal law, however, does not apply to most forms of "news reporting and news commentary." Smith argued that his blog fell under the exception, and the court agreed.

The court applied a "functional analysis" to the question and based its decision on the "content of the material, not the format" in which it is presented to the public.

... The issue of who the law considers to be a journalist also is facing Congress in its efforts to pass a federal shield law.

The original versions of the bills introduced in the House and the Senate contained broad definitions of “journalist” and “journalism” which would have covered almost all bloggers and non-traditional journalists.


She erred with this statement though:

The federal law, however, does not apply to most forms of "news reporting and news commentary." Smith argued that his blog fell under the exception, and the court agreed.


The court was forced to agree ... the Lanham Act which is a clarification of copyright and trademark law states exactly:

Directly as stated on The Cornell Law Website:

The Lanham Act defines the statutory and common law boundaries to trademarks and service marks. Trademarks (and service marks) are words or designs used in the advertising of goods and services. Rights to use a trademark are defined by the class(es) for which the trademark is used. Therefore, it is possible for different parties to use the same trademark in different classes. The Lanham Act defines the scope of a trademark, the process by which a federal registration can be obtained from the Patent and Trademark Office for a trademark, and penalties for trademark infringement.

The following shall not be actionable under this section:

(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.

(B) Noncommercial use of a mark.

(C) All forms of news reporting and news commentary.


NOTE: IT doesn't say MOST - it says ALL

Also note that text only has to meet ONE of these stipulations. The Plaintiff attorney stubbornly tried to claim otherwise in my case. He also claimed that my article fit none of the three - when in fact I was able to argue successfully within the summary judgement that my article fit all three. The Magistrate Judge had bought into the Plaintiff attorney's argument of my article not qualifying because it was used commercially. The District Judge however, understood that this was a misinterpretation as I was not specifically benefitting from Bidzirk's logo nor was I specifically pointing out their logo to bring commerce or click through ad revenue to my site.

...

Tuesday, November 27, 2007

Desperate to grab a headline; Verizon announces "something"



Verizon announces "any app, any device" program


---------- FIX YOUR THINKING COMMENTARY ----------


After a very ho hum launch of the supposed "iPhone Killer" - the LG voyager - it looks like Verizon is looking desperately to make a headline that gets DUGG more than a few 100 times. In the meantime ... the iPhone makes headlines on a daily basis.

Some things you'll be noticing ...

Over the past few weeks I've been updating this site quite a bit. I've been trying experiments with various blog widgets and tools and I think I've almost got everything honed and ready for a new Mid-January redesign of this site.

As you can see ... I've started a new poll. I'm going to place three polls each month on the site that all relate to each other topically. Then, I'll post an analysis of the three polls with some commentary.

If you'll notice, I'm forcing answers. I don't like polls that give the option of "undecided". Answers such as this skew poll results and frankly, I think, make them meaningless.

You may have also noticed this little paragraph break over the last month:

---------- FIX YOUR THINKING COMMENTARY ----------


or:

---------- FIX YOUR THINKING NEWS ----------


or this one:

---------- FIX YOUR THINKING PERSPECTIVE ----------


Why am I doing that? One of the things that saved my critical article about Bidzirk in a recent legal battle was that I reported it ... I didn't just blast off a bunch of looney criticism without any background. Judge Catoe, Judge Herlong, and the 4th Circuit UNITED STATES COURT OF APPEALS affirmed,

[Smith's article] was in the context of "news reporting and news commentary."


So, just in case it isn't clear that I report news, fact, and opinion here - I've started to place these page breaks within my posts here. It also helps to separate my commentary from the commentary I'm agreeing with or critiquing.

I would strongly encourage you to do something similar on your blog to avoid any legal entanglements.

I've also re-implemented a donation button (look at the right side column to donate):



I used to have a donate button on my website, but for a while I was in protest of Paypal. The crazy Bidzirk attorney also tried to make the case that my website was not allowed to report the news because this was a commercial venture. The argument was shot down by the court with a comparison to newspapers ... "aren't newspapers in it for the money?" I've realized that I may be missing out on a bit of potential revenue. While this site has never been about money ... I do have bills to pay and sometimes my phone bill (verifying information) can be quite high. It also costs roughly $120 a year to host this site and belong to the various analytic / traffic measurement "clubs".

Apple settles Burst.com patent infringement case for a (relative) pittance

Apple and Burst.com have agreed on a settlement in the Apple v. Burst.com case, which involves Apple paying a one-time, $10 million licensing fee. Sound like a lot? Microsoft paid 5 times that amount. Patent troll or not, Burst will bother Apple no more.

read more | digg story

The Small Wave has a terrific in depth commentary about this.

...

Apple Acknowledges Reports Of MacBook Hard Drive Failures

Apple has acknowledged to InformationWeek that it has received reports of MacBook hard drive failures and is looking into the problem.Seagate was not immediately available for comment, but Apple spokesman Cameron Craig said the company was aware that there might be a problem. "We've received a few r...

read more | digg story



---------- FIX YOUR THINKING COMMENTARY ----------


I strongly believe there is something related to these two stories and that it will be discovered that Seagate is the one at fault here and not Apple.

Seagate offers refund to 6.2 million customers

Mac Data Loss Vulnerabilities Discovered
...

The Macintosh Mail - in - box?

I have local searches set up for eBay to tell me when someone within a 40 mile radius lists something "Apple Computer" ...

Here's an interesting auction listed last night:

The Macintosh Mail-in-box:



Click here to see the auction


[UPDATE] Apparently this guy is just copying this idea that was on DIGG a few days ago:

Mac Fanboy Dream Mailbox

...

Monday, November 26, 2007

CNet rates Vista one of "worst products in history"

CNet has named what they claim are the worst technology products in history. Probably the most controversial is the inclusion of Windows Vista which sits alongside the Sinclair C5, the Gizmondo and the Tamagotchi.

read more | digg story

A moderated comment on this topic:

I just hope Paul Thurrot reads this. I would love to hear his comments on it, even though I'm sure I know what it would be. No doubt he would just claim it was written by a Mac fan-boy who was paid by Apple to infiltrate Cnet.

USB To Ethernet Adapter For Macs



EXCLUSIVE USB To Ethernet Adapter

Save a costly motherboard repair for your Apple All In One iMac or eMac Mac Mini or your iBook & Powerbook, MacBook or MacBook Pro

I personally use this adapter on my MacBook so I don't have to plug in my ethernet cable ... I just use a USB hub with two of these adapters so one can be hooked to the internet and one cable can be hooked to a network printer. I don't have to worry about IP addresses or the constant plugging and unplugging ruining my laptop's broadband connection. The USB also stands an intermediary for surges from the network as well.

EXCLUSIVE - I also offer this adapter for OS 9 (Classic) * PLEASE email me for details

This is for your surged ethernet/broadband port on your Apple computer

USB 2.0 ... backwards compatible with USB 1.1

Another great use is for network printers and NAS storage - have this plugged into a free USB port while accessing your network or broadband connection on your Ethernet port.

Your ethernet port does not have to be bad to use this adapter.

Get this in case of an emergency!

Comes complete with drivers in pack with manual/instructions

PLEASE EMAIL ME with any questions or for OS 9 compatibility ...

This adapter ONLY works with all updates applied on Mac OS 10.3 (Panther) or Mac OS 10.4 (Tiger) Mac OS 10.5 (Leopard) and All versions of Windows that support USB

Note: this adapter does not work with OS 8.6 - 9.2.2 or 10 , or 10.1 , or 10.2

Best compatibility and guaranteed to work with Panther, Tiger, Leopard, and Windows 2000, Windows Millenium, and Windows XP ... all other operating systems are not guaranteed ... but please email me for details.

I am the EXCLUSIVE eBay seller of this item! Look at my feedback (I have each item labelled). I have sold nearly 1500 of these over the last year!

* Item may vary slightly in appearance, but warranted for functionality

I now also warrant this to work with the Playstation 2 and Tivo! (you MUST mention that you need this function when ordering)

These adapters are BRAND NEW

Poll results




Here are the results from my first blog poll. Very interesting. I'll have more to say about these results when I post a new poll. I'm going to try to relate the polls and write an article from the results.

AT&T and Samsung quietly recalling Blackjacks?



According to users on AT&T's official support forums, Samsung Blackjacks manufactured between November 2006 - February 2007 are the subject of a quiet recall due to a antenna issue. Apparently certain internal components are wearing oddly over time & causing the antenna to loosen & disengage, causing dropped calls & poor signal strength.

I had blogged about this previously. While I worked for AT&T, I noticed that the Samsung Blackjack was one of the most "switched from" phones (to the iPhone).



read more | digg story

[UPDATE] Not sure one can believe a Samsung press release (it sounds like PR speak to me) ... but crunchgear scooped a statement from Samsung ... found here

...

Quote O' The Week



Steve Jobs (as revealed by Ralph De La Vega: CEO of AT&T in an ENgadget interview):

I think when we started negotiating with Apple and working, Steve's quote was, and I think it was a very smart one:

"This is such new territory for both of us, that we are both going to feel uncomfortable after we get this deal done."


---------- FIX YOUR THINKING COMMENTARY ----------


Ladies and gentlemen ... there's a lot to learn from that quote. That was pure genius to say that. Steve Jobs most certainly owns the title "greatest CEO of any company ever".

That was part reverse psychology - part truth and part hype; all without using any buzz words, catch phrases, or cliches.

...

Apple Secretly Tracking iPhone IMEI & Usage / But Not Really

Hidden in the code of the “Stocks” and “Weather” widgets is a string that sends the IMEI of your phone to a specialized URL that Apple collects. Time to put on the tinfoil hats.

read more | digg story

German site Heise Online has tested Hackint0sh user XianLi's claims about the iPhone sending its IMEI to Apple while accessing the web. According to Heise and other sources, this is not true:

read more | digg story

---------- FIX YOUR THINKING COMMENTARY ----------


Yet another instance where a retarded "I need attention" dweeb completely fabricated a story to get hits on his website. Like I've said before ... I could easily make up a story that would bring blogger (Google blogs) to it's knees I'd get so many hits. (Although this site held up very well under pressure when my court ruling hit 3 weeks ago)

I wanted to report this when it first came out but I wanted to see it verified by other websites first. I had a strange feeling about this story ... so I waited ... glad I did.

Forget MTV - Apple's iPod ads are the new music-star makers

Nick Haley, 18, took just 30 minutes to pluck the Brazilian band CSS from obscurity and hurl it into the national spotlight. Marketers at Apple headquarters in Cupertino were so impressed with the song selection and YouTube video, they arranged for Haley to travel from England to Los Angeles, where he helped advertising executives at TBWA/Chiat/Day.

---------- FIX YOUR THINKING COMMENTARY ----------



I've personally purchased 3 songs I have seen in Apple advertisements - Technologic by Daft Punk / Dance Tonight by Paul McCartney / 1234 by Feist . I never would have even heard these songs otherwise.

read more | digg story

How addicted to Apple are you?

My 2 Cents 4 the Day links to a nifty poll:

How addicted to Apple are you?


I scored a 94%.

I wrote to Apple in 1982 at Age 8 and was able to help score our school district some Apple IIe's. I went to an after school program where I learned to program in something called Turtle. I then helped my school district get Macs in 1984 and 1985. My dad got a Mac Plus in early 1985. I've been using Macs ever since. I now service Macs and have worked for Apple computer.

In the quiz, I answered the question (YES) ... Have you ever waited in line for Apple product?

94%How Addicted to Apple Are You?

Wednesday, November 21, 2007

Happy Thanksgiving!

Happy Thanksgiving!


Readers,

I am very thankful for you. Without you I wouldn't really want to type here ... I'd be satisfied just talking about all this stuff to my girlfriend, best friends, and family. I really appreciate getting to share everything I love in life with you.

I feel as if we have built a community here and shared in the harvest just like the settlers did way back when.

Roget - thank you for providing me with ongoing tabs on Bill Palmer and your occasional spell catch / fact checking on my site

Tom - wow, your site is awesome. I'm looking to you as the next John Gruber ... I am especially thankful for your comments here and your insight in your articles

I Am A Lover Of Children's Literature - thank you so much for all your kind words and your contributions to this website. I am also appreciative of your commentary on your site.

Buzmania/Middle Aged Man - I sincerely appreciate all your proofreading and behind the scenes support of my website. This has been a tough year and I doubt I could have made it without your ongoing ego boosts you give me.

JensonB - thank you for providing the UK perspective with your comments and thank you for all your kind words of support and love for my website. I promise to make the next year better as I gather myself back some courage and spirit from the past tough year.

Blogdog - thanks for giving me email advice on the technical side of things - and helping me research some of my articles here

Kindle should have shot for an iPhone Killer not an iPod Killer

Craig Hunter on his blog posits:

Everybody is talking about how Kindle is the 'iPod of Books' or something like that, but the iPod is so yesterday (even Apple knows it). If Amazon really wanted a breakthrough, they should have aimed for the 'iPhone of Books'. That's a better way to out-book a book.


* Link credit to Daring Fireball

USB to Ethernet Adapters For Macs



EXCLUSIVE USB To Ethernet Adapter
Save a costly motherboard repair for your Apple All In One iMac or eMac Mac Mini or your iBook & Powerbook, MacBook or MacBook Pro

I personally use this adapter on my MacBook so I don't have to plug in my ethernet cable ... I just use a USB hub with two of these adapters so one can be hooked to the internet and one cable can be hooked to a network printer. I don't have to worry about IP addresses or the constant plugging and unplugging ruining my laptop's broadband connection. The USB also stands an intermediary for surges from the network as well.

EXCLUSIVE - I also offer this adapter for OS 9 (Classic) * PLEASE email me for details

This is for your surged ethernet/broadband port on your Apple computer

USB 2.0 ... backwards compatible with USB 1.1

Another great use is for network printers and NAS storage - have this plugged into a free USB port while accessing your network or broadband connection on your Ethernet port.

Your ethernet port does not have to be bad to use this adapter.

Get this in case of an emergency!

Comes complete with drivers in pack with manual/instructions

PLEASE EMAIL ME with any questions or for OS 9 compatibility ...

This adapter ONLY works with all updates applied on Mac OS 10.3 (Panther) or Mac OS 10.4 (Tiger) Mac OS 10.5 (Leopard) and All versions of Windows that support USB

Note: this adapter does not work with OS 8.6 - 9.2.2 or 10 , or 10.1 , or 10.2

Best compatibility and guaranteed to work with Panther, Tiger, Leopard, and Windows 2000, Windows Millenium, and Windows XP ... all other operating systems are not guaranteed ... but please email me for details.

I am the EXCLUSIVE eBay seller of this item! Look at my feedback (I have each item labelled). I have sold nearly 1500 of these over the last year!

* Item may vary slightly in appearance, but warranted for functionality

I now also warrant this to work with the Playstation 2 and Tivo! (you MUST mention that you need this function when ordering)

These adapters are BRAND NEW

T-Mobile responds to Vodafone iPhone injunction

T-Mobile just issued a press release in response to Vodafone's efforts to unravel the iPhone exclusive offering in Germany. They've decided to offer a $1500 Unlocked iPhone.


I wonder if they are giving Apple any of the extra $1100?



read more | digg story

The Kindle Will Be Kindling In A Few Short Months



Tom over at The Small Wave says:

I wanted something analogous to an “iPod for books.” The idea that I could buy books and store hundreds on one device is great. Going on a trip? Don’t worry about what book to bring; grab the device and go. Waiting at the Dr.’s office? Don’t read that six-month old magazine; you have everything with you. The idea of a portable reader is a good one to me.

Unfortunately, the Kindle is so badly implemented I’m not sure I can say anything good about it. Amazon’s mistakes (along with the obvious stupidity and paranoia of the publishers) is apparent everywhere.


Read his full commentary here

---------- FIX YOUR THINKING COMMENTARY ----------


If the patent industry has an antichrist - it is Jeff Bezos. This is the silliest thing since ... [insert failed product here].

A revolutionary idea would have been a free subscription EVDO iPod attachment that allows eBook delivery. This is forcing a cumbersome 80's looking device on people that no one wants.

When pitching an invention of my own I got one comment from a very well known company in the Mac Space:

"Looks like you have a solution to a problem no one has" - I think that statement applies to the Kindle.

Does any one have difficulty getting books? With Amazon and eBay for the people with no book stores near them? What about us city folk - do you not enjoy going to the book store? Do you not love showing off a book collection? Do you not enjoy letting friends borrow books? (Something you can't do with Kindle)

I would call this device Kindling - it will be in the fire in less than 1 year. Bezos will pour (and lose) millions first though.

Tuesday, November 20, 2007

I knew you guys would try to mess it up ... you always do!!

As reported by MacRumors

The Wall Street Journal reports that Vodafone has succesfully won a temporary injunction against Deutsch Telekom from selling the iPhone tied to their network and with a 2 year contract.

The court has temporarily prohibited T-Mobile Deutschland GmbH from continuing to sell the iPhone only in combination with a two-year service contract. The court also demanded that the product be allowed to function on other cellphone networks, and not just T-Mobile's.


The injunction reportedly stands until another hearing in Hamburg in two weeks. Vodafone reportedly took action only in Germany due to local laws favoring the ruling and does not plan to seek a similar suit in the U.K.


Here's where I had predicted this.

Please don't mess it up!


VodaPhone US or VodaPhone UK ARE the same company ... It's really lame that a competitor loses and then resorts to suing it's competitors in a "whiney legal battle" like this.

Just so you can note: This is one reason Apple never releases things worldwide and why it takes so long to release Apple products internationally. There are so many restrictions that it's next to impossible for Apple to predict the legal cost impact.

Monday, November 19, 2007

Posting will be light this week as I do family things, celebrate Thanksgiving (There's a lot to be thankful for this year), and tidy up a bit.

If you're going shopping on Black Friday ... maybe you'll find a sale as good as this. This is a REAL sale sign inside a Toys R Us - a great Flikr find.


Friday, November 16, 2007

AT&T Program Change: Dropping EDGE from your iPhone plan now allowed

As of yesterday, AT&T allows you to drop the $20/month data/EDGE feature from your iPhone plan. If your EDGE coverage is poor or you work around WiFi, keep your minutes and ditch the data. You lose Visual Voice Mail but you still qualify for Apple tech support and 2-Year warranty coverage.

read more | digg story

---------- FIX YOUR THINKING COMMENTARY ----------


Dropping Visual Voicemail is a big deal, it's my second most favorite feature of the iPhone next to Google Maps.

Judge dismisses shareholder backdating suit against Apple execs



A California judge on Wednesday granted Apple's motion for dismissal in a stock options backdating lawsuit brought against chief executive Steve Jobs and thirteen other current and former members of the company's leadership, but is allowing the investors to refile an amended complaint as part of a derivative suit.

read more | digg story

---------- FIX YOUR THINKING COMMENTARY ----------


Apple's stock price didn't fall as a result of the backdating, which is what these shareholders claims were about.

In fact, with the news of this dismissal, I would venture to say that Apple will see a small uptick ... maybe the shareholders should be investigated for bringing up a scandal so as to worry investors knowing the case would be dismissed and therefore inflating the stock price. Hmmmmmmm

Thursday, November 15, 2007

EFF: Fight For Blogger's Rights

Bloggers' Rights at EFF


I have a new "sticker" on the front page of this website.

I have to admit I don't agree with the majority of what the EFF fights for. I do understand though that what they fight for must be fought for; equality.

In my recent court decision the District Judge used a "functional analysis" proposed by the EFF in another case. Thus my decision, made the "proposed analysis" precedent. The EFF also assisted me in finding attorneys to consult with about my case. While it was difficult to manage the case Pro Se I was instructed that my case was so strong that I didn't need legal assistance to fight it. While it lasted 1.5 years and cost me 10's of 1000's of dollars in lost income and 100's of hours of prep time, not to mention the extreme embarrassment - this turned out to be the best move and actually made my case stronger.

The Plaintiff attorney's goal was to prove I was not a journalist; rather your typical blogger who cares not for fact or punctuation. He tried to assert that I was an unintelligent dolt who defamed his client. What he ended up proving is that I didn't have to pass the state bar to beat a lawyer or defend my cause in court - thus he proved just the opposite. Now I have to admit that I stink as an attorney. The legalspeak of the court was nauseating. I can see why so many bloggers have given up.

Wednesday, November 14, 2007

Way Cool! Solar Powered Bluetooth Headset

ENgadget: Solar Powered Bluetooth Headset

From ENgadget
Incoming from the ridiculously obvious department: Iqua's solar-powered Bluetooth headset. We're not sure how much solar charging [ it will need versus energy drain from use ] (or whether this thing for sure has a battery -- although we can't imagine why it wouldn't), but one less minuscule gadget to worry about charging is just fine by us.


------ V-- FIX YOUR THINKING PERSPECTIVE -- V ------



It hasn't been released yet and there's no set price, but it is about to go in production. I don't see why one of the big names Motorola, Nokia, Jabra, Sony) won't pick this up and rebrand it. I have to admit - charging my BT headset is one of the most annoying things about my iPhone (or any cellphone I have owned in the last 6 years).

I'm covered since I have short hair, but I wonder how this will affect women or men with mullets (and ear cover).

Low Self Esteem & Materialism Go Together Scientists Say

The Consumer Paradox: Scientists Find that Low Self-Esteem and Materialism Goes Hand in Hand


From the article:

Mad Magazine summed it up with the statement, “The only reason a great many [people] don't own an elephant is that they have never been offered an elephant for a dollar down and easy weekly payments.


I'll also make that my quote of the week. I had never heard that.

* Found via DIGG

Tuesday, November 13, 2007

This is an apology? This is an outrage!



Look how he has his face in a shadow as though evil


As some of you may know, I recently won a landmark decison that determined three things concretely for blogs:

1) The format does not determine the content - professionalism and intent of criticism does. (Not all blogs are diaries, not all blogs are news;some are though. Some contain news. Some do not.)

2) The intent detrmines defamation. If constructed as a news story that is well researched and contains substantial fact OVER opinion - the criticism can not be considered defamation.

3) If a picture is posted on a public website, invasion of privacy can't be claimed if a site links to the picture with criticism. The court essentially said, "The Plaintiffs undoubtly would NOT have filed suit had my article been praise for Bidzirk or its owners"

So that the page can make some search engine ranking, Kevin Elwell has posted a half hearted smug apology of sorts on his website; called Bidzirk vs Smith. This is an effort to further demean, demoralize, and trivialize my writing and to play down a major loss that he knows will become part of journalism legal history. His loss is mostly due to his improper conduct and his client's malicious intent behind the litigation.

I've held off writing about his blog for some time now mostly because it was intentionally started to trash the things I write about here.

• 30% of the news on this website has been about the iPhone over the last year.

• The opposing attorney also knew that I had taken a job with AT&T as an iPhone rep (Probably because I mentioned it here.)

Earlier in the year, the plaintiff attorney for Bidzirk started a blog on his website:

He wrote two trolling entries filled with misstated facts:

Other Things You Can Do With $600

Guess he didn't hear all the rave reviews the iPhone was getting as the most revolutionary phone ever released, somewhat justifying a premium. I will be honest and say the iPhone has changed my life. I mean that. I am much more organized, have my music everywhere I go ... before I never carried my iPod and phone together. I also have easy access to the internet which I use a lot ... I mean a whole lot ... I mean like way more than I ever used the internet on a daily basis before. I'm always verifying things I see and facts I state, I'm constantly referring to diagrams of Apple computers that I don't have to bring out a bulky laptop to see, I use Google Maps on a daily basis, I enjoy being able to tell anyone what the weather is going to be.

Second, guess he also didn't care to mention the $200 price drop.

Third, he mentions getting a Samsung Blackjack instead for $79 and then mentions a contract tie down for the iPhone. The Samsung Blackjack is a very difficult phone to get used to, it doesn't have nearly the quality internet experience, and doesn't hold even 1/4 the songs with the highest media card available for it (that you must purchase separately for around $60-$80). The Samsung Blackjack is ONLY $79 if you take a 2 year contract. Otherwise it's a recently reduced to $299 price. At the time he wrote the piece the Blackjack was $349 without contract.

He wrote another troll piece entitled, iPhone Mania: Lemming Alert

There's no need for my commentary on this piece I'll let you read it on your own:

The iPhone is released today - so what? Does this device have what practitioners need to stay in touch with the office? Absolutely not. Will this device help you control overhead and communications costs? Absolutely not. Will it allow web surfing as fast as depicted in television advertisements? Absolutely not. Any lawyer that utilizes one of these phones as a business contact solution is nothing but a victim of advertising. The iPhone does not support synchronization with Outlook or Windows Server applications. You can’t receive your office email on this thing - a fact which by itself makes the phone useless to attorneys. It costs about $600, which is roughly eight times the price of Samsung’s BlackJack through AT&T - and the BlackJack handles Windows applications, office email, plays songs (a 2GB microSD card will hold about 800 songs which, let’s be reasonable, is all that decent people need anyway), works on the 3G network, supports bluetooth, calendars, stores photos and, oh, makes and receives phone calls as well. Save your money, and get something with some utility for your law practice. The iPhone is neither helpful nor necessary.


Who are "decent people"? The iPhone "works" on 3G networks, just not at 3G speeds. Using the Samsung Blackjack Ars Technica determined that 3G drained the battery 15% to 20% faster. It's also hypocritical to say this when; Greenville, where this attorney and I live and do business - THERE CURRENTLY IS NO 3G NETWORK FOR AT&T!


Here's his latest entry which is nothing more of an attempt to save face, belittle me further, and be belligerent to the court. I say this pretty much seals up the "grossly improper conduct" that Judge Herlong mentioned in my ruling.


It’s been a while since I posted here; I have simply been too busy to spend time blogging. Lately, however, my silence has been interpreted by some as unprofessional, and so if for no other reason than that, it’s time to post again. As many already know, I represented the plaintiffs in BidZirk v. Smith, a case in which my clients sued Philip Smith, a blogger. BidZirk is an eBay dropoff store, and Mr. Smith had an unpleasant experience with the company. He posted a story in which he described his experience with BidZirk, which was fine. What wasn’t fine was Mr. Smith’s use of BidZirk’s logo in his blog. BidZirk asserted a claim for trademark dilution under the Lanham Act, and BidZirk’s principals asserted claims for defamation and invasion of privacy.

During the course of the litigation, Mr. Smith either neglected or ignored deadline after deadline, and was given second, third and fourth chances by the Court. At one point in the case, Mr. Smith had failed to respond to certain requests for admission, which under normal circumstances would have resulted in the facts contained in those requests being admitted for purposes of the case. These admissions would have normally had the effect of sealing Mr. Smith’s fate, because the facts thus admitted would have established his liability. BidZirk moved for summary judgment on this basis. Then, I made a serious error. I filed a notice of lis pendens on Mr. Smith’s condominium, for the purpose of preserving the availability of that asset to satisfy BidZirk’s expected judgment. This was an aggressive move, and in hindsight was too much so. Arguing that an expectation of judgment equates to a claim directly involving the title to real property took the lis pendens statute beyond its intended use. The lis pendens was on the books for approximately six months, when it was withdrawn pursuant to the Court’s instructions. The Court denied BidZirk’s motion for summary judgment.

The Court was hostile to BidZirk’s claims from the beginning. The case was referred for pretrial handling to a federal magistrate, who attempted to be fair to Mr. Smith, but also understood that the rules apply evenly to both sides, represented or not. Mr. Smith failed to respond to BidZirk’s written discovery requests, and the magistrate eventually granted a motion to compel, with specific instructions to Mr. Smith to answer certain interrogatories, RPODs and requests for admission. Mr. Smith did not serve responses as ordered, but instead sought an extension of time to answer, which was granted. The Court’s order relating to this extension of time stated clearly that if Mr. Smith did not respond as ordered in the additional time allowed, he would be sanctioned.

Instead, Mr. Smith filed a paper in which he stated “I deny and defy the Court’s order,” usually a sure-fire way to earn the Court’s contempt. The Court ordered a status conference not with the magistrate, but with the district judge himself. I assumed that the district judge had gotten wind of Mr. Smith’s in-your-face refusal to obey a Court order, and that the matter had been ‘kicked upstairs’ for resolution. On the appointed day, I appeared in the courtroom fully expecting to be witness to the district judge’s bollocking of Mr. Smith. Instead, I was excoriated for the better part of 90 minutes, while the judge excused every bit of Mr. Smith’s conduct, overruled the magistrate’s discovery orders and suggested to Mr. Smith that he make an oral motion for summary judgment. The Court granted the motion, and sanctioned me for filing the notice of lis pendens.

The Court wrote that “in essence, this is a case in which the plaintiffs have sued Smith because he published articles on the internet critical of the plaintiffs’ business.” This is not what the case was about. BidZirk’s claim was for trademark dilution; specifically, the negative association BidZirk’s trademarks acquired through their connection with Mr. Smith’s blog. There are three defenses to infringement liability under the Lanham Act - (1) non-commercial use; (2) comparative advertising; and (3) use of trademarks in “news reporting or news commentary.” There is a 4th Circuit case directly on point (PETA v. Doughney, 263 F.3d 359 (4th Cir. 2001)) regarding the unavailability of the non-commercial use defense on websites that include any connection to commerce, such as click-through ads. Mr. Smith’s website includes click-through ads. Respecting the comparative advertising defense, Mr. Smith’s posting on BidZirk was not comparative advertising, and he never claimed that it was.

Accordingly, Mr. Smith’s only defense to infringement was the argument that his posting was “news reporting or news commentary.” The Court found that Mr. Smith’s piece was news, arriving at that decision by reviewing the content of the posting. The Court also said that Mr. Smith’s intent in posting the article was revealed in the article itself. BidZirk contended all along that determining whether Mr. Smith’s posting was news requires an examination of his intent in publishing the piece. BidZirk contended, and the record supported, the notion that Mr. Smith did not set out to write an informative piece on BidZirk - rather, he attacked BidZirk after he had a bad experience with the company as a customer, not as a newsgatherer.
The problem with the Court’s approach is that it involves judges in the critical evaluation of what is published, when the only proper inquiry is why it was published. We cannot allow the ‘bloggers as journalists’ debate to devolve into a situation in which courts weigh whether certain published information is newsworthy. Such is not the function of the courts. BidZirk proposed a test (set forth in its brief to the 4th Circuit) pursuant to which the putative news reporter’s intent at the beginning of the newsgathering process is evaluated. If the blogger’s intent is to gather facts and compile a story for the purpose of informing readers, it is news. If a story is compiled using facts that were gathered for a purpose other than news reporting, it is not news for purposes of 15 U.S.C. 1125(c)(4)(C). Remember that the context in which this test would be employed is extremely limited - the only question presented in BidZirk v. Smith was whether Mr. Smith’s infringement of BidZirk’s trademarks was excused by the character of the posting as news, a term which the Lanham Act does not define.
Several commentators have cited BidZirk v. Smith as a triumph of free speech over evil corporations concerned only with their reputations. However, the case was not about free speech, it was about trademark infringement. Had Mr. Smith published the same story, not using BidZirk’s trademarks, BidZirk would not have sued Mr. Smith. BidZirk’s issue with Mr. Smith was never about what he said on his blog, it was about his insistence on publishing BidZirk’s logo. This may seem like a small thing, but it is the difference between lawful and unlawful use of another’s property. If you owned a 20-acre yard, and a stranger insisted on standing on a six-inch wide spot at the very edge of your land, you would probably initially say to yourself that it’s no big deal. If you looked out your kitchen window every morning and saw the same fellow standing there, trespassing on your six inches of grass, day after day, you would eventually say to yourself that enough was enough. After all, whether you own 20 acres or just the small space where the stranger is standing, a trespass is a trespass, and property owners are entitled to exclusive use of their property.

The same is true here. Mr. Smith’s infringement continues every day that the posting is available on the internet. Infringement is infringement, whether it’s the Nike swoosh on 1000 billboards or Philip Smith publishing BidZirk’s logo on his blog. The net effect of BidZirk v. Smith, aside from the comment mill’s First Amendment high-fiving, is to weaken trademark protection in this country. The stage is now set for the next incremental diminishment of property rights, with the test to be applied tasking judges to review the content of stories to determine whether they are newsworthy enough to be entitled to infringe their subjects’ trademarks. This thought should give pause to anyone who writes a blog.
I learned two things in this case. First, don’t try to expand the limits of the lis pendens statute in South Carolina. Second, don’t ever try to tell a judge what s/he should be angry about. I pursued what I believed to be a plausible theory of the case. The Court didn’t see it BidZirk’s way. Time to pick up the next file and continue doing my work. I had hoped to get through my entire career without being sanctioned, and I am upset with myself that I failed in that regard.
I did not know Mr. Smith prior to the BidZirk v. Smith case, and I still do not know him. I respect Mr. Smith’s tenacity in publishing his views. This case was about BidZirk’s trademark. It was not about muzzling Mr. Smith. Congratulations to Mr. Smith for surviving a tough lawsuit. I apologize to him here, publicly, for filing the notice of lis pendens; it is a mistake that I shall not repeat. I wish Mr. Smith luck in the future, and hope that I, he and my clients can move on to better and more productive things.


I'm moving on with a lawsuit for harassment, breach of contract, defamation, and malicious litigation.

I want to assure everyone reading this that:

This is no apology especially after costing me 10’s of thousands of dollars in lost income, 100’s of hours of lost time and depression, and countless lost opportunities.

I have to say this:

KEVIN ELWELL YOU ARE THE MOST INSINCERE & SMUG PERSON I HAVE MET. SHAME ON YOU!

Unlike your comment, I know you VERY well - everybody does. This was no apology; it was a whine. Judge Herlong needs to see this - and oh - thanks for helping me make my case for antagonizing, embarrassing, and harassing “things Bidzirk did to me” even stronger with this post.

He's outright contemptuous with lies regarding the “way things went down”. I know he has to portary it that way though ... a lawyer was beaten by a Pro Se litigant - it's embarassing to him and he knows it.

Judge Catoe only compelled me to answer the questions because he felt he HAD to give the attorney something. Obviously Judge Herlong understood that his questions WERE ALLL ridiculous - the majority of chastisement was NOT over the lis pendens; it was over his conduct and the “grossly improper behaviour” during the course of this litigation.

"Mr. Smith’s posting on BidZirk was not comparative advertising, and he never claimed that it was."


Yes it was a comparitive study. I stated in the article that I had been to several similar businesses, done extensive online research, and in just about every instance, I found similar things happening at OTHER EBAY DROPOFFs.

I also want to make it clear that i never discouraged anyone from visiting Bidzirk. Everyone was already avoiding the business anyway for 3 reasons:

1) That kind of business has failed in just about every form where I live and is failing nationwide.

2) There were no repeat customers once they saw how they got shafted after their first payment.

3) Most people are competent enough to sell on eBay or know a friend or relative that will do it for them.

My article actually fit ALL 3 of the Lanham Act protections. It only has to fit one to be protected speech:

(1) non-commercial use ( My website can hardly been considered a money maker - I lose money here and write to inform educate and because I have always had a passion to write and to educate. )

(2) comparative advertising ( It was a comparison and contrast to other eBay dropoffs which suffer the same issues with customers nearly universally )

(3) use of trademarks in “news reporting or news commentary.” ( Yep, that's what i did, reported a news story, and then commented on that news story. )

"Mr. Smith’s infringement continues every day that the posting is available on the internet."


No it's NOT ... it was ruled as NOT infringing by the courts.

May I repeat:

The Plaintiff attorney (KEVIN MORGAN ELWELL) forced me to reveal trade secret information regarding an invention of mine and also forced me to reveal several of my clients personal information. One subject of a completely unrelated article that I posted was contacted and prompted to say something bad about me. Instead, he contacted me and I posted his letter on my website.

The Plaintiff attorney (KEVIN MORGAN ELWELL) was chastised very firmly for asking me 3 separate invasive, irrelevant, and antagonizing questions. (The MAJORITY OF YOUR CHASTISEMENT WAS THIS NOT THE LIS PENDENS!)

I answered ALL the courts requests ON TIME, IN ORDER, AND AS SUGGESTED I SHOULD DO with consulting advisors to me about this case.

Judge Catoe:

“This court finds several of the plaintiff’s requests are irrelevant, vague, overly broad, and unduly burdensome”

“Two of the discovery requests appear to have been made for no other purpose than to antagonize and embarrass the defendant”


These are the questions meant to "antagonize and embarrass" me that were "irrelevant, vague, overly broad, and unduly burdensome" that Kevin Elwell speaks of that I refused to answer or did not answer on time or as requested.

These questions were:

Do you have a high school diploma?

Do you consider yourself intellectually superior?

This litigation has depressed you, are you sure you are not depressed because you are unmarried, have no children, have a junk title car, and live in a rundown condominium?

Please turn over the entire contents of your hard drive for all your computers?

When asked for clarification "all 158 GBs"?

Reply by Kevin Elwell, "Yes all 158GBs"

District Judge Herlong OVERRULED Judge Catoe saying the whole process of interrogatory, admission, and deposition were completely improper on the part of the Plaintiff. This is where he gets the FINAL SUMMARY statement in my ruling:

Quote from District Judge Henry Herlong:

“… the court finds that based on Elwell’s grossly improper conduct, he should be sanctioned”

Sunday, November 11, 2007

Manipulating Bloggers: Trademark Dilution, Libel and the DMCA

[A blogger's] summary judgment might be one of the most inspiring cases for bloggers squeezed by dissent corporations, but there's more to the First Amendment.

read more | digg story

Saturday, November 10, 2007

iPhone Battery Melts Your Brain

According to the release Exradia are "...surprised Apple has chosen to ignore this potential health issue", though the company admits there's no evidence that mobile phones cause problems

read more | digg story

---------- FIX YOUR THINKING COMMENTARY ----------


Absurd!

You know ... if I were attention starved or money grubbing I have some awesome conspiracies that I could post here or place a sensational headline on DIGG and make a killing with ADSense ads.

Picture O' The Day / Maybe O' The Month

While looking for pictures of Leopards ( for a desktop picture for Mac OS X 10.5 actually ) - I came across this amazing picture of a leopard hand painting:



See more hand paintings HERE

Friday, November 09, 2007

Bidzirk vs Smith makes front page of The Consumerist



Blogger who wrote about business wins defamation lawsuit

Peer Pressure?

I've watched an interesting situation develop amongst my customers over the last two months and equally in the MacRumors forums about the various iPhone updates that Apple has released.

It seems as though MOST people who are "jailbreaking" their phone are doing it for no reason or purpose other than to be a "Wannabe Hacker".

Yesterday, I asked a customer of mine who has an iPhone why they unlocked their phone if they don't have any 3rd party applications on it. He's a 7 year (and no other carrier) subscriber to AT&T/Cingular. He does use iToner (the custom ringtone app) but it doesn't require the phone to be hacked at all.

His reply was interesting, mostly because I would consider him the most novice of computer users:

It runs faster and there's less problems with the phone. It also lets me roam onto other networks and lets me make custom ringtones.


What!!!!

I asked if he had been having a lot of crashes with the phone and he replied, "No I had just read about it." I asked him to show me any of the third party applications on the iPhone and all he showed me was INSTALLER - an app that Jailbreak installs.

For clarification: the iPhone / AT&T has the largest network in the country, if by chance it needs to roam onto T-Mobile because there are no AT&T towers it will do so by default. The only thing the iPhone locks you into is who you pay your bill to - AT&T. Futhermore, iToner DOES NOT hack your iPhone - it's more of a trick. It makes your iPhone think that the custom ringtones you make are ones that the iPhone should recognize as native/system/included ringtones.

It seems that the only reason he hacked his iPhone was to be a "wannabe" - sorry if you're reading this, but at least I did tell this to your face yesterday.

Here's some interesting comments from the MacRumors forum about the latest iPhone firmware update released this morning:

"Jailbreak 1.1.1 is working just fine for me. I'll stick with that. Thank you very much."

"Wow, people are downloading this before apple gives it to them, and I'm planning on doing my best to avoid the thing for as long as it takes to hack."

"Apple needs to give me some incentive to unjailbreak my iPhone."

"I don't want to be a part of the Apple AT&T tyranny - I wish they would just sell the thing unlocked"


In regard to the last forum comment I posted - T-Mobile has 1/5 of the subscribers of AT&T in the USA - that's just about the only other choice for carrier Apple could have made. I'd like to add an important observation to the mix that I don't think many have considered with Apple's partnering with AT&T. AT&T stores are consistent and they are just about all clean and very well laid out. This can't be said for the majority of T-Mobile stores in the US. Most T-Mobile stores I've seen are trashy and seem to staffed by temp firms. I've never seen an AT&T (Cingular) corporate store that was trashy or even the slightest bit dirty. The same goes for Verizon. Although the majority of their stores ARE clean and well laid out, I've always felt like I was in a circus atmosphere in their stores. I think Apple chose AT&T just as much for this aspect of AT&T than it did for just about any other.

Thursday, November 08, 2007

Yet another Bidzirk vs Smith write up

I want to make sure that everyone that covered my case with a good write up gets proper recognition, so excuse me if I post one more summary of my recent victory:

WiredPen writes:

A South Carolina US District Court Judge threw out a defamation lawsuit filed against a blogger who “published articles on the internet critical of the Plaintiffs’ business.” Here is the key section of this 16-page ruling:

[In] determining whether Smith was engaged in news reporting or in news commentating, the court has applied the functional analysis … which examines the content of the material, not the format, to determine whether it is journalism… Upon review of the content of the article, the court finds that Smith’s use of the BidZirk mark in the article was in the context of news reporting or news commentary… Smith’s article evidences his intent to report what he believed was a newsworthy story for consumers.


Blogger wins defamation case


It's important to understand the "functional analysis" part of this case. It's the first time that such has been applied (and created specifically for this case). It will now be used for future BLOG VS BIG BUSINESS cases.

Apple adding GPS / Tracking For School Laptops? No.



As reported by MacRumors:

Apple has won large contracts for MacBooks in Kansas and Louisiana. The two contracts are valued at $6.4 million and $5 million respectively

It appears Apple has made efforts to provide custom solutions to educators to meet their needs. Kansas City officials describe additional security measures added to the MacBooks, including a way to track lost/stolen MacBooks:

All of the laptops have stickers clearly identifying them as the "property of the Kansas City, Kansas public schools". The sticker will not come off without virtually destroying the laptop. If thieves find a way around that obstacle, a GPS tracking device will help locate it. If all else fails, district officials said, they could also use a remote device to destroy the hard drive.


---------- FIX YOUR THINKING COMMENTARY ----------



I'm going to assume that the laptops have RFIDs and NOT GPS units. I don't think it's possible to fit a GPS unit anywhere into the MacBook. The "sticker" most likely is the piece of the equation that contains the RFID. Also, I will assume that Apple just made a contract with Absolute Software's LoJack to provide their "LoJack For Laptops" program. And for the record - there's no such thing as a device that destroys the hard drive remotely - maybe remotely erase the data ... but not destroy.

I also want to point out that educational institutions DESTROY the value of their computer equipment by placing outrageous identification on them. I buy surplus from local school systems and 9 times out of 10, the identification is either etched on the computers and EVERY peripheral or the computer is completely marred by a super glue like substance that ruins the appearance and resale value to people like me. In other words, these extreme security measures devalue the equipment and therefore the school districts may not realize the full economic value/depreciation of the equipment.





read more | digg story

...

Tuesday, November 06, 2007

Mac Data Loss Vulnerabilities Discovered

There is news today on potential data loss vunlerabilites in Mac OS and in Apple's notebook drives manufactured by Seagate.The vulnerability involving the Mac OS was first documented by Tom Karpik.The 10.5 Finder has a glaring bug in its directory-moving code, leading to horrendous data loss.

-------- FIX YOUR THINKING COMMENTARY --------


Interesting ... I wonder if this has ANY correlation to Seagate's drives being of a lower unformatted capacity ( the reason for the lawsuit mentioned earlier in the week )

read more | digg story

[UPDATE] Apple has released Hard Drive Update to address this issue:
Hard Drive Update 1.0


...

Macs? "Practically obselete" says Qwest

When [a Qwest customer] received a modem setup disc, none of the software would work for his computer, nor his roommates. He called Qwest and was told that it was because he had a MacBook and that Macs were nearly obsolete.

read more | digg story

Another Good Write Up On Bidzirk vs Smith

From TechDirt:

Court Dismisses Lawsuit Filed Against Blogger For Criticizing Company
from the slapp-this dept

We've seen so many cases recently of companies trying to shut down negative criticism online by suing critics, it's nice to point out a case where those cases get shot down by the courts. Eric Goldman has the details on how a court has thrown out the lawsuit filed by BidZirk, one of many, many companies that will sell your stuff on eBay for you, against a blogger for criticizing BidZirk's service in a blog post. The lawsuit claimed defamation, privacy invasion and trademark violations -- all of which seem like a stretch. If anything, this sounds like a SLAPP situation, where the company isn't suing because anything wrong was done, but because it just doesn't like criticism. In this case, the court found no defamation, as the blog post was clearly the guy's opinion. It found no trademark violation because the guy used the company's name in the course of reporting on the company, which is perfectly legal. As Goldman notes, the unfortunate part of this story is that a blogger had to spend a year and a half in court dealing with this lawsuit. While it's great that he eventually won, many bloggers wouldn't have the time, money or stamina to deal with such lawsuits -- which is why they're likely to keep happening.


read more | digg story

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Registering Domain Names An Instant Trademark?

As reported on Slashdot:

"I registered a descriptive domain name (something like "thesimpledog.com") and started a blog on it. About a month later I get a threatening letter from a link farmer who owns "simpledog.com" The owner of simpledog.com is claiming that he owns the trademark to the words simpledog even though he has no real business or rights by that name other than a static page with some text and Adsense slapped on it. There is no product, service or brand whatsoever. Does simply registering a two or three word domain give you instant trademark rights to those words even though you've never done anything with them? Should I give up my domain to a link farmer who is trying to bully me, or does he have a valid right to any phrase he registers that isn't already trademarked?"


---------- FIX YOUR THINKING COMMENTARY ----------


I say it has a lot to do with relevance and connection to a business model. One of the reasons Cisco didn't have as much clout over the iPhone trademark was because they hadn't developed a product with the name iPhone. (They ended up rushing a product out the door when they found out for certain an iPhone was going to be released).

Generic terms often get scrutinized in trademark cases. SimpleDog is a very borderline combining of terms.

A domain name is also a matter of parody and/or satire.

After all we have PAYPALSUCKS.COM and WALMARTSUCKS.COM

Monday, November 05, 2007

Written Up, But Not Kept Down Pt III



Another time I was written up was for cursing in Gym Class.

I'm not a big fan of soccer. To say that I didn't give my very best when we played in Gym Class would be an understatement.

My Gym Class was divided into two cliques; the jocks and the rednecks. There was a small fringe of us who didn't fit into either category. Often; the jocks would favor the jocks and the rednecks would favor the rednecks when choosing teams and when cooperating on a team. I've always been good at sports and I remain healthy and physically fit to this day, but still I would only occasionally get passed the ball on the soccer or football field in Gym Class.

One day, my team, which consisted mostly of jocks, was 1 point behind the other team; consisting mostly of rednecks. A player from the opposing team kicked past me just a few feet in front their goal. I swiped the soccer ball from his feet. I immediately passed it perfectly to a player on my team. I ran as fast as I could towards our goal, hoping for the soccer ball to be passed back. The goalie for the opposing team was out of the goal; behind me on the field. The ball was passed back to me in a perfect kick from a team mate. I fielded it like Pele - letting the ball hit and absorb onto my chest and roll down my body to the ground. I dribbled the ball with one foot about 20 feet further. The opposing team was rushing down the field, shouting,

GET HIM!!!


I stopped within 10 feet of the goal. In my head the announcer was already shouting,

GOOOOOOOOOOOAL!!!


I KICKED IT!

...

....

.....

......

... straight over the top of the goal; missing.

I shouted at the top of my voice,

DAMN!!!


The Gym Class teacher rushed the field and grabbed me by my arm dragging me off the field saying,

"Mr. Smith, you will not curse on my watch. How dare you! I'm forced to write you up."


It was rather embarrassing to be pulled off the field like that. But, I have to admit; all I could see is my team mate's disappointment from my missed goal.

We went into the the Gym teacher's office. He wrote on a disciplinary slip,



Don*, I do not appreciate Rusty cursing in my class. He shouted a curse word in anger because of his inability to kick a soccer ball properly. I sincerely hope that this results in a paddling.


On the top copy he wrote, "WORD WAS DAMN"

I was nervous. I walked from the gym to the main building, through the cafeteria, and up the steps to the office.

I got up to the front desk and showed the secretary the disciplinary notice in my hand.

"Hold on a moment Rusty and I'll go get him.", she said.

She went down a small hallway and then poked her head back from around the corner,

"Mr. Jodd* isn't here at the moment, he had to go get something from home, so let me se if Mr. Valcons* is here."

Fear rushed into my heart, and it started to beat as though a mouse's heart while being held at the tail by a 5 year old boy. Mr. Valcons* was the assistant principal. Although I didn't know how the principal, which was my father's best friend; would have reacted to my disciplinary notice either.

An eternity of 30 seconds passed and I heard from an office,

"Step in here Mr. Smith!


The assistant principal smiled like the Cheshire Cat.

"There's no Don Jodd* here today, it's just me - Mr. Valcons*."


Continuing he said,

"I see you got a foul mouth. Well, that can only mean a paddling."

A thought came to my head!!

"Can I go to my locker, I need to get something!"


Mr. Valcons*: " What for, so you can get a book to shield the blows?"

"No, I just need to get something, please.


Mr. Valcons: "I suppose I can grant a last wish to a dead man, I need to find a witness anyway, go ahead you've got 1 minute."

He started counting,

"59 ... 58 ... 57 ... 56 ...!"


I rushed down the steps and into the locker room that was just underneath the office. I went to my locker, dialed my combination, and pulled out my English book. I hurried back up the steps leaving the locker door swinging open.

The witness was none other than my Publications teacher. The incident with, "eating doing class" had just happened 4 weeks prior.

I was thinking to myself, "My plan better work!"

Mr. Valcons, "Well, this is Ms. Ackamear*, she's going to make sure you don't get hurt Rusty, is that okay with you?"

I said, "Would you mind turning to page 178 in my English & Literature book please?"

What are we suppose to read?


I would like for you to read a story I had to read for homework last night.

Rusty, cut this nonsense out. Place your hands on the table and look forward.


If you will read that page you will see where I bookmarked the curse word that I'm being accused of saying. I had never heard that word before reading it. If it's in my English book that means I'm being taught that word. If a great author can say it in anger, I should be able to say it."


Mr. Valcons opened the book. In the center of the page, separated out in the quotes, was,

"That Damn Eye!"


The night before I had been assigned to read Edgar Allan Poe's, The Tell Tale Heart. While the animated short you see above does not contain this phrase, the version in my English book did.

My witness, a former English teacher, looked at the Assistant Principal ... they knew that I had a reasonable point. They knew that the two of them administering a paddling to me was wrong. They also knew that if my dad found out that I had been paddled for saying a word that my English book contained that he would be livid.

"Are you going to tell your father about this?"


My reply in a confident voice,

"Probably not."


The first time my father will ever hear this story is by reading it here.

* the asterisk indicates a name was changed to protect the innocent. The principal and assistant principal's names were similar.

* a witness was required in public schools for all paddlings

Friday, November 02, 2007

Don't Bidzirk Me

This case involved an eBay reseller's attempt to crush an unhappy customer who posted about his experience, only to find himself embroiled in defending his words against full blown federal litigation. Smith, pro se, won the case, but at huge personal expense.

read more | digg story

What's the difference between a journalist and a blogger? Is a blogger a journalist and is a journalist a blogger? The answer isn't so simple because the conversation usually spins down a maze of different avenues. Bloggers have earned the title of "citizen journalists" whether we like it or not.

read more | digg story

This is a great victory for Smith, a pro se litigant who has defended himself admirably. Applied: Lanham Act; which exempts "all forms of news reporting and news commentary" from liability from trademark dilution. In deciding whether the blogger's article fit within the statutory defense, the court applied a "functional analysis" ( a first) , which examines the content of the material, not the format. Also another victory for deep linking.

read more | digg story

A recent lawsuit judgment provided evidence for two things: a blogger may qualify as a journalist; and just because you're a lawyer doesn't mean you have to act like one. Advice: being mean is no way to get through court.

read more | digg story

When Philip Smith took to his blog to describe his (negative) experience of working with an eBay listing company, he did not expect that he would end up representing himself in a federal defamation and trademark dilution lawsuit or that he would have difficulty selling his condo after a lawyer for the plaintiffs clouded his title to the property. Now, after winning the case in spectacular fashion, Smith has emerged as an unlikely hero for bloggers everywhere who hope to be regarded as journalists.

read more | digg story

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Written Up, But Not Kept Down Pt II

A few weeks ago, I started a new post called, "Written Up, But Not Kept Down" ... a story about how I was a good kid, but managed to be written up 10 times in junior high and high school. In the first part, I laid the background for why I would get written up - mostly due to hatred for my father from scorned teachers.

Continuing today and this weekend, I'll tell two of my favorite stories I have about my high school days:

On the first day of orientation to my Junior High School, my principal laid out the rules in a student assembly. After talking about the dress code, conduct codes, and "the way things worked" at his school, he stated very sternly,

"I despise gum chewers and candy crunchers, it's a disease amongst you children and I don't like it. I have zero tolerance for eating when not in the lunch room cafeteria and I have an even lower tolerance for people who don't dispose of their unwanted food and candy properly.


He was a very well built strong man ... he held up up a desk with one hand exposing the bottom.

"See the bottom of this desk? It's clean. All desk undersides are to remain that way. If a teacher sees you placing gum under a desk, she is instructed to make you pick it back off and swallow it, you'll then clean all the desks in the classroom after school, you'll be sent to the office for a paddling, and your parents will be notified. But I'm sure you'll all be good, you look like a good bunch.


GULP!

_____________________________________________________


I worked for the annual staff. At my Junior High school this was actually considered an elective; called Publications. We mostly worked during a class period. We had six one hour periods of class in a day ... for me; this was 5th period.

The teacher for Publications was a rather husky black woman with a big bouffant hairdo. She had taught both of my older brothers English when they came through the same Junior High. She knew my dad well as she had been partially implicated in some impropriety that my father alleged a few years prior.

Publications was a rather boring class. I mostly played on the Mac Plus. I recorded things into system file sounds and when the teacher would come by I would count picas on a sheet of graph paper like I was figuring out how to lay out the annual. This class was full of over achievers so we were pretty much left on our own. We had a great annual staff supervisor - a very laid back 9th grader.

One day, read as just like every day, I had a watermelon Jolly Rancher in my mouth. The teacher saw me switch it from the left side to the right side of my mouth. She asked me with a stern voice, (speaking exactly as spelled)

Rusty, do you have candy in yo mouth?


I answered,

"No Ma'am"


She said aggravated,

"I done told you 'bout dat, lemme see yo mouth"


I opened my mouth to reveal a watermelon Jolly Rancher. She reached inside her desk and pulled out a disciplinary notice. It made a light kind of potato chip crunching sound as it wisped in the breeze from the drawer to the desk. It seemed to go in slow motion over her head and onto the desk with the pen crashing to the center to write down my offense. She wrote very quickly and said,

"I done told you 'bout dat, take dis up to tha office!"


I was scared. I didn't think there would be any way to get out of this. This was the principal's number one rule.

I grabbed the disciplinary slip, hung my head down and dragged my feet on the carpet. I walked slowly to the office. I straightened up, like a boxer about to fight and I cracked my back and tilted my head from side to side. I looked at the disciplinary notice. It stated my offense simply, on one line and in three words.

I smiled. I think I almost skipped up the steps to the office. I got up to the front desk and showed the secretary the disciplinary notice in my hand.

"Hold on a moment Rusty and I'll go get him.", she said.

She went down a small hallway and then poked her head back from around the corner,

"Mr. Jodd* will see you now."

Mr. Jodd* said, "Goodness Rusty, what is it this time?"

I smiled and said, "I was eating candy in class."

His face flushed red, his eyes squinted, "Rusty I'm going to have to call your father and we are going to have to paddle you, I'm really upset right now!"

I said, "Take a look at the disciplinary notice first!"



He read it out loud in a surprised voice exactly as spelled,

"eating doing class"???


His mouth crumpled and his fist balled up. He gave me a message and said frustrated,

"Go back to class!"

I returned to class. The teacher surprised to see me return so quickly said,

"What choo doin' back so quick?"


I replied snickering, "I don't know, but Mr. Jodd* wants to see you!"

She got on the intercom, "Mr. Jodd* do you need me?"

The reply in a growling tone, "IN MY OFFICE!"

From that point on, I had Jolly Ranchers® in 5th period ... so did every one else.

* the asterisk indicates a name was changed to protect the innocent. The principal's name was similar with one syllable.

How to tell if a web site sucks, a flowchart

A comical flowchart for those of you who can't figure out when a website sucks. This site scored "fanboy site".

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Seagate Offers Refund to 6.2 million for Hard Drive Capacity Error / Apple Computer Owners Take Note


As reported by ComputerWorld:

Seagate's use of the decimal definition of the storage capacity term "gigabyte" (GB) whereby 1GB equals 1 billion bytes, was misleading to consumers because computer operating systems instead report hard drive capacity using a binary definition of GB, whereby 1GB equals 1, 073, 741, 824 bytes -- a difference of approximately 7% from Seagate's figures.

In court papers, Seagate said between March 22, 2001, and March 31, 2007, the disk drive maker sold approximately 6.2 million retail hard drives in the U.S.

Once the settlement is approved, anyone who bought a Seagate brand hard disk drive between March 22, 2001, and Dec. 31, 2006, has the right to submit a mail in claim form for cash or software from Seagate by March 10, 2008, according to court documents.


---------- FIX YOUR THINKING NEWS ----------

Mail In Claim Form (click here)


Don't forget this if you upgraded your hard drive in your Mac or Apple laptop. Also don't forget about external enclosures. Many hard drive enclosures have Seagate hard drives inside them. If they are easy to take apart - it's worth the quick check up.

Don't forget that MANY Apple computers come with Seagate hard drives in them. My MacBook Black has a Segate Scorpio 7200RPM drive in it and originally came with a Seagate Momentus Drive. These drives SHOULD qualify as well even though OEM.

Furthermore ... Apple users are forced to take the cash benefit. The settlement offers two solutions; 1) A Software benefit* that is PC only and a 2) Cash benefit. You will be better off taking the cash even if there was software being offered that was Mac compatible.



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