The Substantially Similar Weblog

I appreciate Groklaw’s timely and incisive coverage of SCO v. IBM; however, the site’s primary author (a paralegal) sometimes makes subtle erroneous statements of law. For example, in yesterday’s posting, What’s Wrong with Enderle’s “Legal” Strategy, she writes:

Mr. Enderle, SCO’s true believer, has written that if he were on a jury, he’d vote for SCO. That, of course, does not amaze you. He has also given us a heads up on what he believes they will tell a jury and why he thinks it will convince them. Unfortunately for Mr. Enderle’s theory, he doesn’t understand that when you ask for a declaratory judgment, as IBM has on its counterclaims, the jury doesn’t decide it. Declaratory judgments are decided by the judge.

This is wrong. See, e.g., Beacon Theatres v. Westover, 359 U.S. 500 (1959):

The District Court’s finding that the Complaint for Declaratory Relief presented basically equitable issues draws no support from the Declaratory Judgment Act, 28 U.S.C. 2201, 2202; Fed. Rules Civ. Proc., 57. See also 48 Stat. 955, 28 U.S.C. (1940 ed.) 400. That statute, while allowing prospective defendants to sue to establish their nonliability, specifically preserves the right to jury trial for both parties. [..] It follows that if Beacon would have been entitled to a jury trial in a treble damage suit against Fox it cannot be deprived of that right merely because Fox took advantage of the availability of declaratory relief to sue Beacon first.

(emphasis added)
The issue is not whether it is a declaratory judgment action, but whether there are disputed issues of fact for the jury and the nature of the relief sought. Equitable (or injunctive) relief must be granted by a judge, but claims for other sorts of relief can be heard by a jury, whether it is a declaratory judgment action or not. I haven’t examined the papers carefully enough to answer that question definitively in this case, but I suspect there are disputed issues of fact in the counterclaim apart from any requests for injunctive relief. Thus, IBM’s declaratory judgment counterclaims may, in fact, go to a local jury.

This is similar to a Groklaw error from this past summer, in which the author confused a preliminary injunction or summary judgment (both of which are decided by a judge) with declaratory judgment. See my explanations at the time.

I just opened an account at ING Direct·, an online-only bank that provides 2% interest in an “orange savings account” (vs. 0.5% at my regular bank) with no fees, minimum balance, etc..

What’s really surprised me is their privacy policy·:

ING DIRECT’s privacy policy exceeds the standards required by congressional legislation. One requirement of the Gramm-Leach-Bliley Financial Modernization Act of 1999, or GLB, requires financial institutions to provide customers with the ability to “opt-out” of information sharing. ING DIRECT has adopted an “opt-in” privacy policy, which means that we will not share your data unless you explicitly request that we do so.

I don’t think I’ve ever received a privacy policy from a financial institution that say much more than “we promise we’ll comply with the law!” Compare my credit union, whose privacy policy says: “We share member information with discretion. We may share some or all of the non-public, personal financial information we collect about you, but we pledge to share such information with prudence and only as permitted by law.” Great—prudence—I’ll definitely be able to enforce that one!

The mailing I got from ING Direct is even better:

Banks have assumed for too long that they can share information about you, and then ask if you mind; requiring you to tell them not to, or “Opt-Out” of their information sharing. ING DIRECT will not share your information unless you ask us to, or “Opt-In” to us sharing your information.

The only thing I find a little irritating so far is that they always answer the phone with, “ING Direct, how can I help you save more money?”

So what I want to know is: what’s the catch?

Spam gets more clever all the time. Yesterday, this· appeared on the debian-mentors list·:

 Date: Wed, 7 Apr 2004 22:36:41 -0700 (PDT) From: rasheed badmus  Subject: free game boy To: debian-mentors@lists.debian.org Hello: I'd like to request for someone to sponsor the following unofficial packages I have: snes9express (1.39-beta) - a GUI frontend for SNES9x (as far as I know this is still an orphaned package); and visualboy advance (a gameboy/gameboy color/gameboy advance emulator for Linux). The said packages can be obtained in this apt source location: anything that u want to send,send it by this below. P.O box 1103 agodi Ibadan, Oyo state, Nigeria. 

Although list members quickly figured out that this was actually spam·, someone made a good point: if spammers start using text from a typical posting to a list in the body of their message, it’s going to be very hard to use content-based filters reliably. I can’t see how, for example, a Bayesian filter would be able to drop the above message in the right bin.

Also, see this fairly technical but fascinating description of how an Internet cafe technician in Dublin caught a spammer red-handed·. The best part is where the spammer tries to eat his USB memory stick so the police won’t get it. (Sorry, this is one instance where my civil liberties instincts are overcome by my harsh justice instincts).

(this is another case where this post would ideally be filed under two categories—”Debian” and perhaps “spam”—which is not yet a category.)

I’ve written before about one of the various forms of Internet pestilence: messages bounced back from virus filters that claim you emailed them a virus, when in fact the mail header was forged and the virus originated elsewhere. It’s particularly frustrating to those of us who use GNU/Linux and thus are practically immune from viruses, at least those that propagate through email.

Here’s my latest attempt at an omnibus virus bounce procmail filter. Put this in ~/.procmailrc and most if not all of these messages should go away. Note that you need to increase from the default LINEBUF length to pack this all into one expreession:

Suggestions for additional filter strings are welcome. This is an obvious case where there should be some standard for this kind of message, but of course each proprietary virus scanner company wants to have its own distinct announcement so as to advertise its product in the bounce message. The best thing would be something in the mail header other than the subject line.

I’ve also found the following recipe useful for filtering out a very common viral email that appears to be going around:

You could probably substitute virus with /dev/null without any ill effects in both of these recipes.

Finally, a neat trick if you use SpamAssassin. This is covered in the documentation, but I only recently discovered it. Here’s a way to filter very certain spam into one folder, and pretty certain spam into another:

Set the number of stars in the first recipe to be the SpamAssassin score you’d like to count as “very certain.”

The U.S. Trademark Trial and Appeal Board announced on Tuesday that the term “realtor” is not generic, but instead a protectable mark. In other words, “realtor” isn’t just anyway who sells real estate, but attaches only to a member of the National Association of Realtors.

Steve· recently pointed out that the linux-disciples mail list archives· were two months out of date. Linux-disciples· is a small community maillist I administer for all-purpose newbie linux questions (technically it should be “GNU/Linux-disciples,” but that doesn’t roll off the tongue smoothly). Upon investigation, I discovered that Mailman· has not been archiving any of my mail lists since February.

Previously, I had the problem that ArchRunner (the mailman process that creates archives) was using up all my available CPU·. So I turned ArchRunner off and had it run (or so I thought) every night from midnight until 6am as a cron job under user ‘mailman’.

The problem, I just discovered, was that I had given the wrong path to ArchRunner in the mailman cron job. The error message was going to user ‘mailman’, which was, in fact, a list I had accidentally created.

So it turns out there were over 100,000 error messages that had been sent to the mailman list since February, and these messages were all waiting to be ‘archived’ by ArchRunner once it started running properly again.

The lesson to be learned? There can be an awful lot happening on your server without you realizing it, even running a few monitoring utilities such as logcheck· which are supposed to watch the log files. Also, make sure that error messages from a process that tries to run every minute don’t go to a nonexistent user, and particularly don’t go to a user who is actually a mailing list.

I’m also wondering why google isn’t indexing any of my mailing lists·. A major impetus behind linux-disciples· was to make these questions and answers appear in the search engines.

In other news, I’m using a tryout demo version of Codeweavers Crossover Office· to run Office XP under GNU/Linux. Normally, I do everything with OpenOffice, which I much prefer, but I’m doing some intensive document exchange with others at work, and as much as I’d like to believe it isn’t true, the conversion filter is not yet perfect. The documents we’re working on are legal documents that are ultimately filed as such with official entities. Unfortunately, I think I’ve got to compromise my free software values on this one… On the other hand, so far, CrossOver Office is holding up quite well, and I’ll probably buy a version if things continue to work well.

(no need to comment on why MS Office formats are very bad for legal/confidential documents—e.g., Word Macro Viruses·, accidental disclosure· of confidential information·, etc.·. I know.)