RE: [NF] Invalid Terms

2007-01-17 Thread Hal Kaplan
= On Jan 16, 2007, at 11:31 AM, MB Software Solutions wrote:
= 
=    Whenever someone with deep pockets decides to do so. 
= Until then, the 
=  Golden Rule applies.
= 
=  But when they (M$) are the deepest pockets for miles 
= around, that time 
=  will never seem to come?
= 
=  Hence the desire by many to get the government 
= regulators involved.
= 
= -- Ed Leafe

I think this is all much ado about nothing.

First, no one is going to sue M$ because of EULA content.  M$ has to start by 
alleging a breach of contract.  So the question then becomes what provision is 
so onerous that a licensee has no choice but to violate it?  This is not a 
question of it looks onerous or it looks unfair, it is a question of how 
adherence to the EULA (acceptance of which is purely voluntary) is harming the 
licensee?  Specifically.

Does anyone have an example of how the EULA is harmful either to the legitimate 
needs of a licensee or the public safety and welfare?  Let's discuss it!

Also, in terms of deep pockets,  the worst defendant that M$ could engage, 
from the M$ point of view, is an individual operating as such, not a 
corporation.  Such a defendant would not need professional legal assistance and 
could argue his case pro se.  Most lawyers hate pro se opponents because 
the court will usually bend over backwards to help such a person, provided the 
person is respectful, sincere, and possesses a modicum of the appearance of 
honesty and is acting with good intentions.

So please tell us how the EULA is going to hurt you unfairly.

B+
HALinNY


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Re: [NF] Invalid Terms

2007-01-17 Thread Ed Leafe
On Jan 17, 2007, at 11:14 AM, Hal Kaplan wrote:

 M$ has to start by alleging a breach of contract.  So the question  
 then becomes what provision is so onerous that a licensee has no  
 choice but to violate it?

No, that's not the case at all. Copyright gives you certain rights  
to control your work, but not absolute rights. If I write a book, I  
can legally force someone to pay me for the right to read my book.  
But I cannot add a restriction that the book only be read in natural  
sunlight, and that reading it using electrically-generated light  
sources is a violation of their license to read the book. If I write  
a hit song, I can charge you for a copy of the song, but I can't add  
a restriction that prohibits you from humming the catchy melody.

The EULA issues fall into this realm. They are claiming rights that  
they simply do not have, but no one dares to risk the financial  
burden of challenging them, since justice has very little to do with  
who is right, but rather who can afford the best lawyers for the  
longest period.

-- Ed Leafe
-- http://leafe.com
-- http://dabodev.com




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Re: [OT] Justice = The Midas Rule (was Re: [NF] Invalid Terms)

2007-01-17 Thread Michael Madigan
Take a look at  OJ Simpson and Robert Blake.  Both
guilty as sin with good lawyers.  Phil Spector looks
like he'll get off with murder too.  I wonder if you
can convict a celebrity anymore.


--- MB Software Solutions
[EMAIL PROTECTED] wrote:

 Ed Leafe wrote:
  snipped
  since justice has very little to do with  
  who is right, but rather who can afford the best
 lawyers for the  
  longest period.

 
 I wonder if there's a way to fix that problem?  Do
 other civilized 
 countries have this same problem? 
 
 -- 
 Michael J. Babcock, MCP
 MB Software Solutions, LLC
 http://mbsoftwaresolutions.com
 http://fabmate.com
 Work smarter, not harder, with MBSS custom software
 solutions!
 
 
 
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RE: [NF] Invalid Terms

2007-01-17 Thread Hal Kaplan
= 
= On Jan 17, 2007, at 11:14 AM, Hal Kaplan wrote:
= 
=  M$ has to start by alleging a breach of contract.  So the question 
=  then becomes what provision is so onerous that a licensee has no 
=  choice but to violate it?
= 
=  No, that's not the case at all. Copyright gives you 
= certain rights to control your work, but not absolute 
= rights. If I write a book, I can legally force someone to 
= pay me for the right to read my book.  
= But I cannot add a restriction that the book only be read in 
= natural sunlight, and that reading it using 
= electrically-generated light sources is a violation of their 
= license to read the book. If I write a hit song, I can 
= charge you for a copy of the song, but I can't add a 
= restriction that prohibits you from humming the catchy melody.
= 
=  The EULA issues fall into this realm. They are claiming 
= rights that they simply do not have, but no one dares to 
= risk the financial burden of challenging them, since justice 
= has very little to do with who is right, but rather who can 
= afford the best lawyers for the longest period.
= 
= -- Ed Leafe

Poppycock, Ed!  M$ makes a product.  You want to use it and you buy it SUBJECT 
TO THE TERMS of the license agreement.  You don't like the agreement?  Don't 
buy the product or negotiate a different agreement.

The copyright only protects the holder's right to be compensated for his work.  
If some jerk wants to stop you from humming his hit song and he makes that 
clear when you purchase a copy, then you have an agreement with him NOT TO HUM 
the song.  

As long as the license agreement does not include any provisions that are 
illegal or criminal or dangerous to the public safety and well-being (whatever 
that is), it remains a voluntary, enforceable agreement and has nothing to do 
with the copyright (although there is some overlap).

The only way a EULA would not be enforceable is if M$ required you to commit 
adultery every time you booted your computer with Windows.  This is just an 
example.  Some people may enjoy committing adultery and some people cannot 
because they are not married or not old enough to be sexually active or too old 
to be sexually active.  But please do not become picayune.

B+
HALinNY


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RE: [OT] Justice = The Midas Rule (was Re: [NF] Invalid Terms)

2007-01-17 Thread Hal Kaplan
= 
= Take a look at  OJ Simpson and Robert Blake.  Both guilty as 
= sin with good lawyers.  Phil Spector looks like he'll get 
= off with murder too.  I wonder if you can convict a 
= celebrity anymore.
= 

Lil Kim (spelling?) served her year-and-a-day in jail on a perjury conviction 
(felony) and is no longer a citizen of the United States of America.

Robert Stroud saved hundreds of injured and sick birds but he never got a 
pardon.


Don't blame the system just because the results don't live up to your 
expectations.

It would really be nice if 1+1=3 or even 4 or a gazillion, but it is not going 
to happen in our system of mathematics.

For every OJ or Blake or Specter, there is an Ethel  Julius Rosenberg.

Don't be a sore loser and a whiner, Mike ... work to make the system better 
instead of putting everyone and everything down.  You will have a lot more 
credibility.

B+
HALinNY


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RE: [OT] Justice = The Midas Rule (was Re: [NF] Invalid Terms)

2007-01-17 Thread Michael Madigan
Ethel and Julius Rosenberg were guilty.


--- Hal Kaplan [EMAIL PROTECTED] wrote:

 = 
 = Take a look at  OJ Simpson and Robert Blake. 
 Both guilty as 
 = sin with good lawyers.  Phil Spector looks like
 he'll get 
 = off with murder too.  I wonder if you can convict
 a 
 = celebrity anymore.
 = 
 
 Lil Kim (spelling?) served her year-and-a-day in
 jail on a perjury conviction (felony) and is no
 longer a citizen of the United States of America.
 
 Robert Stroud saved hundreds of injured and sick
 birds but he never got a pardon.
 
 
 Don't blame the system just because the results
 don't live up to your expectations.
 
 It would really be nice if 1+1=3 or even 4 or a
 gazillion, but it is not going to happen in our
 system of mathematics.
 
 For every OJ or Blake or Specter, there is an Ethel
  Julius Rosenberg.
 
 Don't be a sore loser and a whiner, Mike ... work to
 make the system better instead of putting everyone
 and everything down.  You will have a lot more
 credibility.
 
 B+
 HALinNY
 
 
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Re: [NF] Invalid Terms

2007-01-17 Thread Ed Leafe
On Jan 17, 2007, at 12:26 PM, Hal Kaplan wrote:

 Poppycock, Ed!  M$ makes a product.  You want to use it and you buy  
 it SUBJECT TO THE TERMS of the license agreement.  You don't like  
 the agreement?  Don't buy the product or negotiate a different  
 agreement.

Sorry, but copyright law doesn't work that way. IANAL, nor am I  
married to one, so I'll let someone who is explain it:

http://interactionlaw.com/id12.html

-- Ed Leafe
-- http://leafe.com
-- http://dabodev.com




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RE: [NF] Invalid Terms

2007-01-17 Thread Hal Kaplan
= On Jan 17, 2007, at 2:25 PM, Hal Kaplan wrote:
= 
=  Fine, Ed.  Copyright law does not work that way but I am 
= not referring 
=  to copyright law.  I am referring to licensing.  You can 
= copyright 
=  your relationship with a person by marriage,
= 
=  No, you can't.
= 
=  but your marital relationship is not going to work out if 
= you and your 
=  partner cannot come to terms on how you are going to live together.
= 
=  Of course, but completely irrelevant to software licensing.
= 
=  The only reason licensing is needed is because of 
= copyright. Without copyright, I can take Microsoft's code 
= and do with it what I like, and I can make as many copies as 
= I want and sell them and keep all the money for myself, or 
= just give them away if I like. But copyright prohibits me 
= from doing that. The license I receive from an author who 
= holds the copyright is similarly bound by copyright law.
= 
= -- Ed Leafe

OK Ed.  A couple of posts back you wrote IONAL.  I thought that meant I am 
not a lawyer.  I guess I was wrong about that particular meaning and that it 
was not an acronym after all.

This discussion is very interesting and I would like to go on but it's also 
moot.  We covered something similar to this in my wife's 1-L class last year 
(she is also a prof) and spent 3 days debating motion picture copyrights, 
derivative works, personae, likenesses, and greed.  The bottom line?  She loves 
to go to Dunkin Donuts for joe and I like 7-11.

B+
HALinNY


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Re: [NF] Invalid Terms

2007-01-17 Thread MB Software Solutions
Hal Kaplan wrote:
 snipped  The bottom line?  She loves to go to Dunkin Donuts for joe and I 
 like 7-11.
   

How well does she know Joe  ??  gdr(He meant 'coffee' for you 
non-US folks who might not know what he really meant.  g)

-- 
Michael J. Babcock, MCP
MB Software Solutions, LLC
http://mbsoftwaresolutions.com
http://fabmate.com
Work smarter, not harder, with MBSS custom software solutions!



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Re: [NF] Invalid Terms

2007-01-17 Thread Ed Leafe
On Jan 17, 2007, at 3:29 PM, Hal Kaplan wrote:

 OK Ed.  A couple of posts back you wrote IONAL.  I thought that  
 meant I am not a lawyer.  I guess I was wrong about that  
 particular meaning and that it was not an acronym after all.

Oh. Cute.

No, IANAL does indeed mean that I am not a lawyer. It does not  
mean that my brain is incapable of retaining legal information given  
to me by a lawyer so that I can conduct my business well.

Anyone who sells their creative work, such as software writing, for  
a living and who hasn't invested a few hundred bucks to sit down with  
a knowledgeable copyright attorney is being penny-wise and pound- 
foolish. I did that early in my career, and have met with that lawyer  
on a couple of occasions since. I write 'IANAL' so that others out  
there also get good legal advice, instead of taking my regurgitated  
words as anything other than an informed person's understanding.

It is wrong to assert that only lawyers can speak intelligently  
about legal matters. IANAMD, but I'll bet you that I can talk a whole  
lot more intelligently about the diagnostic differentials for  
achalasia than many gastroenterologists. That's not to say that I  
know everything about gastroenterology; only that which I've  
experienced first-hand. And I first-hand went through 4 different  
gastros before I found one who could recognize the condition and  
treat it accordingly. In the process I learned an awful lot about  
that particular disease, and feel comfortable in my grasp of this  
particular condition.


-- Ed Leafe
-- http://leafe.com
-- http://dabodev.com




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Re: [OT] Justice = The Midas Rule (was Re: [NF] Invalid Terms)

2007-01-17 Thread Ricardo Aráoz
Hal Kaplan wrote:
 = 
 = Take a look at  OJ Simpson and Robert Blake.  Both guilty as 
 = sin with good lawyers.  Phil Spector looks like he'll get 
 = off with murder too.  I wonder if you can convict a 
 = celebrity anymore.
 = 
 
 Lil Kim (spelling?) served her year-and-a-day in jail on a perjury conviction 
 (felony) and is no longer a citizen of the United States of America.
 
 Robert Stroud saved hundreds of injured and sick birds but he never got a 
 pardon.
 
 
 Don't blame the system just because the results don't live up to your 
 expectations.
 
 It would really be nice if 1+1=3 or even 4 or a gazillion, but it is not 
 going to happen in our system of mathematics.
 
 For every OJ or Blake or Specter, there is an Ethel  Julius Rosenberg.
 
 Don't be a sore loser and a whiner, Mike ... work to make the system better 
 instead of putting everyone and everything down.  You will have a lot more 
 credibility.


Old Krong Fu Tse's saying The good system with the bad person works
badly, the bad system with the good person works correctly.


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Re: [OT] Justice = The Midas Rule (was Re: [NF] Invalid Terms)

2007-01-17 Thread Helio W.
putting everyone and everything down

The mark of a loser.

On 1/17/07, Hal Kaplan [EMAIL PROTECTED] wrote:

 Don't be a sore loser and a whiner, Mike ... work to make the system
 better instead of putting everyone and everything down.  You will have a lot
 more credibility.


--- StripMime Report -- processed MIME parts ---
multipart/alternative
  text/plain (text body -- kept)
  text/html
---


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Re: [NF] Invalid Terms

2007-01-17 Thread Chet Gardiner
Gee, I hope everything came out all right in the end.




(Bad Chet)...  :-)



Ed Leafe wrote:

On Jan 17, 2007, at 3:29 PM, Hal Kaplan wrote:

  

OK Ed.  A couple of posts back you wrote IONAL.  I thought that  
meant I am not a lawyer.  I guess I was wrong about that  
particular meaning and that it was not an acronym after all.



   Oh. Cute.

   No, IANAL does indeed mean that I am not a lawyer. It does not  
mean that my brain is incapable of retaining legal information given  
to me by a lawyer so that I can conduct my business well.

   Anyone who sells their creative work, such as software writing, for  
a living and who hasn't invested a few hundred bucks to sit down with  
a knowledgeable copyright attorney is being penny-wise and pound- 
foolish. I did that early in my career, and have met with that lawyer  
on a couple of occasions since. I write 'IANAL' so that others out  
there also get good legal advice, instead of taking my regurgitated  
words as anything other than an informed person's understanding.

   It is wrong to assert that only lawyers can speak intelligently  
about legal matters. IANAMD, but I'll bet you that I can talk a whole  
lot more intelligently about the diagnostic differentials for  
achalasia than many gastroenterologists. That's not to say that I  
know everything about gastroenterology; only that which I've  
experienced first-hand. And I first-hand went through 4 different  
gastros before I found one who could recognize the condition and  
treat it accordingly. In the process I learned an awful lot about  
that particular disease, and feel comfortable in my grasp of this  
particular condition.


-- Ed Leafe
-- http://leafe.com
-- http://dabodev.com




[excessive quoting removed by server]

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RE: [NF] Invalid Terms

2007-01-17 Thread Hal Kaplan
= 
= On Jan 17, 2007, at 3:29 PM, Hal Kaplan wrote:
= 
=  OK Ed.  A couple of posts back you wrote IONAL.  I thought that 
=  meant I am not a lawyer.  I guess I was wrong about that 
= particular 
=  meaning and that it was not an acronym after all.
= 
=  Oh. Cute.
= 
=  No, IANAL does indeed mean that I am not a lawyer. It 
= does not mean that my brain is incapable of retaining legal 
= information given to me by a lawyer so that I can conduct my 
= business well.
= 
=  Anyone who sells their creative work, such as software 
= writing, for a living and who hasn't invested a few hundred 
= bucks to sit down with a knowledgeable copyright attorney is 
= being penny-wise and pound- foolish. I did that early in my 
= career, and have met with that lawyer on a couple of 
= occasions since. I write 'IANAL' so that others out there 
= also get good legal advice, instead of taking my 
= regurgitated words as anything other than an informed 
= person's understanding.
= 
=  It is wrong to assert that only lawyers can speak 
= intelligently about legal matters. IANAMD, but I'll bet you 
= that I can talk a whole lot more intelligently about the 
= diagnostic differentials for achalasia than many 
= gastroenterologists. That's not to say that I know 
= everything about gastroenterology; only that which I've 
= experienced first-hand. And I first-hand went through 4 
= different gastros before I found one who could recognize the 
= condition and treat it accordingly. In the process I learned 
= an awful lot about that particular disease, and feel 
= comfortable in my grasp of this particular condition.

Ed, sorry to say that you had that coming to you.  You set yourself up so 
perfectly and I simply could not let it pass without comment. g

I don't believe that I ever questioned your intelligence or knowledge of any 
topic, Ed.  And I never said that only lawyers can speak intelligently about 
legal matters.  I am totally at a loss to explain why you are bringing up those 
points.

You certainly did the right thing by consulting an attorney regarding your 
retention of your intellectual property rights.  And I know you learned a lot 
from seeing all those doctors about your GI problem(s).  I too have had my 
share of intense collaboration with legal and medical professionals regarding 
personal matters.  I've been clinically dead three times.  I've had part of my 
heart replaced, total kidney failure, and watched my first wife spend almost 
five years deteriorating, one bodily function at a time, from infiltrating 
ductile carcinoma that metastasized to 75% of her body.  Oh yeah, and it took 
17 doctors over the course of 12 years to discover that I suffer from lactose 
intolerance.

And you know what?  I don't know squat about medicine or the law or anything 
compared to the people that I've dealt with.  And with all due respect (and I 
do respect you, Ed), I contend that unless you go to med school, intern, 
specialize, and play g-d with your patients lives, neither do you.  Of course 
we both know more than most people would like to know but that doesn't make us 
qualified for anything except being two old farts shooting the breeze here. 
(Well one old fart, anyway.)

I wanted to be a lawyer (after I wanted to be an M.D. and after I got about 95% 
of my M.Arch).  I wanted to help people and vanquish the s.o.bs. and make money 
and do all those wonderful idealistic things that a teenager might dream of (oh 
yeah, I graduated from high school 10 days after my 16th birthday).  Then I 
looked at an LSAT prep book.  The first question described a situation that 
involved general legal and ethical questions of a benign nature but with 
clearly two points of view inherent in the facts.  The assignment was to choose 
a side and write an essay supporting your position.  Great!  I can do that.  
Next question:  same facts as the first question.  Write an essay opposing your 
first essay; take the other side.  Oh, and then throw away your answer to the 
first question.

My point here is that attorneys are trained to be ADVOCATES, not judges.  They 
are paid to use their legal and mental wiles and wits to ensure that the client 
is victorious, and if that cannot be, then to mitigate, by any way possible, 
the loss the client might suffer.  So when you see an attorney writing some 
kind of non-trial paper on a topic, it is meaningless with regard to how that 
attorney may plead a case or how a JUDGE or JURY might decide an issue.

As a matter of fact, most attorneys have difficulties with persuasive arguing 
and that is why the American system of jurisprudence, for the most part, has 
deteriorated to a battle of following or not following rules of practice.  
Sadly, many other endeavors have achieved the same level of intellectual 
morbidity in this country.

You wanna keep talking about the law, go ahead.  I've said all I can on this 
issue and time will tell ... maybe, maybe not.

B+
HALinNY

Oh, sorry, a 

[NF] Invalid Terms

2007-01-16 Thread Ted Roche
Ed Foster's Gripelog || Reader Voices: Invalid Terms

At what point is it clear that a nasty license provision goes so far
across the line that it must be deemed invalid? That seems to be an
increasingly hot topic, due in large part to recent discussions here
and elsewhere about various terms in Microsoft's Windows Vista EULA.

http://www.gripe2ed.com/scoop/story/2007/1/15/11529/2390


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Re: [NF] Invalid Terms

2007-01-16 Thread MB Software Solutions
Ted Roche wrote:
 Ed Foster's Gripelog || Reader Voices: Invalid Terms

 At what point is it clear that a nasty license provision goes so far
 across the line that it must be deemed invalid? That seems to be an
 increasingly hot topic, due in large part to recent discussions here
 and elsewhere about various terms in Microsoft's Windows Vista EULA.

 http://www.gripe2ed.com/scoop/story/2007/1/15/11529/2390

   

When do you think we'll see a challenge in court to this kind of crap?

-- 
Michael J. Babcock, MCP
MB Software Solutions, LLC
http://mbsoftwaresolutions.com
http://fabmate.com
Work smarter, not harder, with MBSS custom software solutions!



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Re: [NF] Invalid Terms

2007-01-16 Thread Ed Leafe
On Jan 16, 2007, at 11:08 AM, MB Software Solutions wrote:

 When do you think we'll see a challenge in court to this kind of crap?

Whenever someone with deep pockets decides to do so. Until then, the  
Golden Rule applies.

-- Ed Leafe
-- http://leafe.com
-- http://dabodev.com




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Re: [NF] Invalid Terms

2007-01-16 Thread MB Software Solutions
Ed Leafe wrote:
   Whenever someone with deep pockets decides to do so. Until then, the  
 Golden Rule applies.
   

But when they (M$) are the deepest pockets for miles around, that time 
will never seem to come?

-- 
Michael J. Babcock, MCP
MB Software Solutions, LLC
http://mbsoftwaresolutions.com
http://fabmate.com
Work smarter, not harder, with MBSS custom software solutions!



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RE: [NF] Invalid Terms

2007-01-16 Thread Dave Crozier

Michael,
Mass revolt is what is needed. Power to the people and all that. 

But, Profox Martyr's doesn't have the same ring to it as the Tolpuddle
Martyr's does it BG. Back to the drawing board.

Dave Crozier


-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf
Of MB Software Solutions
Sent: 16 January 2007 16:32
To: profox@leafe.com
Subject: Re: [NF] Invalid Terms

Ed Leafe wrote:
   Whenever someone with deep pockets decides to do so. Until then, the

 Golden Rule applies.
   

But when they (M$) are the deepest pockets for miles around, that time 
will never seem to come?

-- 
Michael J. Babcock, MCP
MB Software Solutions, LLC
http://mbsoftwaresolutions.com
http://fabmate.com
Work smarter, not harder, with MBSS custom software solutions!



[excessive quoting removed by server]

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Re: [NF] Invalid Terms

2007-01-16 Thread MB Software Solutions
Dave Crozier wrote:
 Michael,
 Mass revolt is what is needed. Power to the people and all that. 

 But, Profox Martyr's doesn't have the same ring to it as the Tolpuddle
 Martyr's does it BG. Back to the drawing board.
   
Tolpuddle ???  Ah, I see it's a British thing:  
http://www.tolpuddlemartyrs.org.uk/

g


-- 
Michael J. Babcock, MCP
MB Software Solutions, LLC
http://mbsoftwaresolutions.com
http://fabmate.com
Work smarter, not harder, with MBSS custom software solutions!



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Re: [NF] Invalid Terms

2007-01-16 Thread Ed Leafe
On Jan 16, 2007, at 11:31 AM, MB Software Solutions wrote:

  Whenever someone with deep pockets decides to do so. Until then, the
 Golden Rule applies.

 But when they (M$) are the deepest pockets for miles around, that time
 will never seem to come?

Hence the desire by many to get the government regulators involved.

-- Ed Leafe
-- http://leafe.com
-- http://dabodev.com




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