Declan McCullagh wrote:
You appear to be intentionally misrepresenting the motion we filed last week as a way to make a personal attack. I understand your motive, but I don't care for it much.
I believe I understand why you think that. But note I've taken care to try to separate out the question I'm asking, from a personal moral criticism. That is, I'm not making a moral criticism of you. I'm asking why, logically, other people aren't making a moral criticism of you according to their framework. Because there's something here I just don't understand. Granted, it's a bit subtle, and I'm not likely to get a candid answer on-list. But for reasons of my own, it's been bothering me much over the past months. And since John Young already threw me into the flaming-pit, I thought I'd give the question a try in public. I conjecture that you think I'm making a backstabbing attack, because: a) It's what you would do, and often standard practice in your articles. b) You don't understand how I think about legal risk, since it's all a game to you. [See, I'm very clear when I am criticizing you _per se_]
You have me at a disadvantage. My attorney advises me not to make public statements about what we're doing at this time, so I can only say that the motion speaks for itself:
I'm sure you will eventually write a rousing article, saying how you hated to do it, you fought every inch of the way. This was your strategy to battle the horrible actions forced on you by the jack-booted-thugs, and defend Free Speech, the First Amendment, Common Law, and the Freedom Of The Press. I'll stipulate all of that. And you're a Libertarian and I'm not, too! It all would be a distraction from my question. None of this is a criticism of the legal arguments in the motion. They are fine client-advocacy. I went through it all to talk about the interests of the prosecution vs. defense. Now, as a general proposition, if there's a fear of government criminal prosecution, showing up as a prosecution witness is regarded very poorly by people who wonder if they might be next. They tend to hold that against you, no matter what your reasons. In fact, even if you have what's objectively a very good reason, often people will not accept it. Yet, you did this at the first such criminal trial. You're likely about to do it at the second such criminal trial. And you seem come out of it each time with *greater* reputation-capital. You may think I'm backstabbingly insinuating you're a bad person for what you're doing. Actually, I'm not. I'm trying very carefully to stay away from such implications. I just don't understand how you end up with a higher reputation among some of the very people you might be testifying against in the future. Can you comprehend how this utterly, honestly, mystifies me at some level? I *conjecture* the answer is that ideology overrides action. A few chants of "Free Huey!" (or, here "Free Market!"), often go a long way. But still, there's a limit, which is usually exceeded the first time you show up in the witness box. A second time boggles my mind. You appear to think I'm saying "Hey everyone, Declan's a collaborator". No. Rather, I'm asking "Why doesn't Declan get flamingly denounced as a collaborator?". Not because I want to imply you should be. Rather, because I'm trying to understand why it isn't happening. Again, I know, it's a journalistic technique to coyly ask a question when the real goal is to imply the assertion, to get the idea into play. *Shrug*. All I can say is that I don't operate that way, and I think I've shown it given I state my objections very directly.
Also, it is not a surprise that the interests of a defendant and journalist may diverge.
Right. If I ever become a defendant, or have a risk of becoming a defendant, I hope you will understand why I want you *far*, *far*, away from me. It's not because of your politics. It's because you're a hazard to one's legal health. And again, this is not based on this case. But rather, your actions in retaliating via abusing your lists and journalistic position to get back at people, and your arrogance in fanning the flames of lawsuits against programmers (e.g. your initial coverage and contemptuous messages to the developers involved in DeCSS/LiViD), are a sterling example of where "the interests of a defendant and journalist may diverge.". And I'd like to insure I'm never a similar worked example vis-a-vis your divergent interests. __ Seth Finkelstein Consulting Programmer sethf@mit.edu http://sethf.com