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Canadian Regulator Threatens To Impose New Netflix Regulation

debrain Re:why does the CRTC need this list? (316 comments)

One of the many cases that now clarify this topic include Easthaven, Ltd. v. Nutrisystem.com Inc., 2001 CanLII 27992 (ON SC), http://canlii.ca/t/1vz4l retrieved on 2014-09-19, which states at para. 29 (where the 'person' is referring a company whose presence was based on Internet activity in Canada):

The court held that general jurisdiction could be found in such a case [with an Internet company] only if the person was domiciled in the jurisdiction or his activities there were "substantial" or "continuous and systematic".

Jurisdiction can also arise for specific subject matter, as in the case here involving Netflix and the CRTC, by certain statute or treaty (viz. the NAFTA provisions for cultural accommodations for media). Of course a Court in Canada could just assume jurisdiction and give a paper judgment - the question then becomes whether an American court would recognize the judgment through the process called comity. With extremely rare exceptions between Canada and the USA, the Courts will recognize the judgments reciprocally.

There is also nothing stopping the CRTC from bringing an action in the USA based on violations that occurred in Canada. The applicable law may be different from the law of the jurisdiction that addresses the allegations of wrongdoing (i.e. it may be Canadian law that applies, but heard by an American Court, or vice versa). In any case an operation being abroad is not a defence from wrongdoing - notwithstanding e.g. extraterritorial immunity arising from a treaty.

2 days ago
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Microsoft Defies Court Order, Will Not Give Emails To US Government

debrain Re:They are not defying an order (419 comments)

Actually, the judge lifted the freeze on the court order, so Microsoft is in fact defying it. Microsoft states they plan to appeal, but until they do appeal, they are still defying it.

A bit late to reply, sorry, but just a note: In almost all jurisdictions a Judge has no power to vary the stay on enforcement of an order between the time of issuance of that order and the expiry of the time to appeal. This is a fundamental principle of justice.

The power to govern the appeal process rests exclusively with an appellate Court itself (notwithstanding some extremely unusual jurisdictional crossovers, or collateral attack, neither of which being the case here).

The Judge may have lifted *some* freeze on a court order, but they almost certainly did not vary the stay of enforcement pending a possible appeal.

about a week ago
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Microsoft Defies Court Order, Will Not Give Emails To US Government

debrain They are not defying an order (419 comments)

Notwithstanding some really rare cases (e.g. interlocutory), which this does not appear to be, an order is unenforceable while under appeal.

Doing what an order asks is grounds for dismissal of an appeal, notwithstanding cases where acts are made explicitly with the agreement of the parties and sometimes affirmation of the court to be without prejudice to the right of appeal. However in cases of disclosure of information, the disclosure is generally a form of prejudice (since it cannot be undone) that undermines appellate entitlement.

So it is wrong to say they are are defying an order. They are doing what everyone does on appeal.

If they were to defy an order they could be held in contempt of court. That would be an interesting story.

about three weeks ago
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Time Dilation Drug Could Let Heinous Criminals Serve 1,000 Year Sentences

debrain Re:Ridiculous. (914 comments)

Yes, precisely. The generally regarded theoretical justification for criminalization is:

1. Segregation of harmful individuals from the balance of society (aka specific deterrence); and

2. A warning to others to not commit crimes (aka general deterrence).

In other words, the point of the criminal system is on the prevention of future crimes. The only purpose of these drugs consistent with our theory of the criminal system would be if there were some repair happening in the brains of those taking the drugs, but it is apparent from the article that thought has not entered into the minds of the authors.

What is now broadly accepted by most criminal lawyers, judges and those who study criminal theory is that general deterrence is not related to the punishment at all but rather to the likelihood of being caught. In other words, having more police causes less crime. The simple reason being that consequence rarely enters into the mind of those about to commit crimes - unless there are constant reminders (i.e. police presence).

about 6 months ago
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Why Bitcoin Is Doomed To Fail, In One Economist's Eyes

debrain Horseshit (537 comments)

Let's pick this nonsense apart.

> "Economist Edward Hadas writes in the NYT that developers of bitcoin are trying to show that money can be successfully privatized but money that is not issued by governments is always doomed to failure because money is inevitably a tool of the state.

Money is a tool of trade, valuable because it is sanctioned by its users in society. The success of money is determined only by whether people other than the holder accept it.

Bitcoin seems to be riding a hype, but doing okay just in terms of growing acceptance as a payment scheme for actual products and services.

> 'Bitcoin exemplifies some of the problems of private money,' says Hadas. 'Its value is uncertain, its legal status is unclear, and it could easily become valueless if users lose faith.'

Uncertain value and becomes useless if users lose faith? Sort of like fiat currencies? Except without "quantitative easing" causing inflation to kick the can on fiscal failures from decades of overspending.

The legal status is an open question, and a valid concern. Personally I think it's probably a red herring, but I'd keep an eye on the legal landscape if I was going deep in this.

> Besides, if bitcoin ever really started to take off, governments would either ban it or take over the system says Hadas.

How? What is his criteria for "take off"?

> The authorities might be motivated by a genuine concern about the stability of a shadow monetary system or they might act out of self-preservation because tax evasion would be too easy in a parallel economy.

Didn't this guy just say it would be less stable than official sector currencies? Anyway, tax evasion may be harder with Bitcoin since transactions are public record.

> 'Part of the interest in virtual currencies like bitcoin is that their anonymity can provide a convenient cloak for criminal activity. Part is technological â" this is a cool idea. And part is speculative â" gamblers bet that bitcoin's value will increase,' concludes Hadas.

Part of the interest in legitimate trade is that it provides a convenient cloak for criminal activity.

I think Bitcoin has less anonymity than the author asserts, and protecting privacy on Bitcoin is non-trivial for the average user.

> 'Truly private money is an inferior alternative to the money that comes with the backing of a political authority. After all, no bank or bitcoin-emitter can be as public-minded as a government, and no private power can raise taxes or pass laws to unwind monetary excesses.'"

Gold. It's private, not backed by any authority other than natural scarcity, and was the dominant reserve currency for hundreds of years before modern fiat currencies. We have only had our modern fiat currencies since Bretton Woods in 1971 years and it is already unravelling.

I'm all for valid criticisms of Bitcoin e.g. criticisms of the mathematics behind the artificial scarcity or a murky legal landscape. This guy's comments strike me as vacuous.

about 10 months ago
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Autonomous Cars Will Save Money and Lives

debrain Re:So what'll we do with half a trillion dollars? (389 comments)

or put another way, what'll happen when we have half a trillion dollars less economic activity? Since our entire civilization is based around getting people to trade among themselves. I just don't see all these productivity gains are ever going to make it down to my level...

Not all economic activity benefits society. Perhaps the most well known demonstration is the parable of the broken window:

The parable of the broken window was introduced by Frederic Bastiat in his 1850 essay Ce qu'on voit et ce qu'on ne voit pas (That Which Is Seen and That Which Is Unseen) to illustrate why destruction, and the money spent to recover from destruction, is actually not a net-benefit to society. The parable, also known as the broken window fallacy or glazier's fallacy, demonstrates how opportunity costs, as well as the law of unintended consequences, affect economic activity in ways that are "unseen" or ignored.
 

The productivity gains failing to make it to your level are arguably a problem of inequality of the distribution of wealth, not lack of economic activity.

about a year ago
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Ask Slashdot: Why Isn't There More Public Outrage About NSA Revelations?

debrain Someone's always been listening (610 comments)

As a teenager in the 1980's I would talk to my friends on the phone about the NSA, and we would say all the words we thought would trigger surveillance review of our call. "Bomb", "terrorism", "air plane", whatever we could think of. It was a bit of a joke at the time, but on reflection it reveals an interesting vein of thought at the time.

A few things have occurred to me since then. First, I expected them to be listening. The recent "revelations" were hardly new - in the days before the Internet, in town of less than three thousand people in very rural Canada, I knew about and expected to be under surveillance under the right conditions. The NSA has since been regularly published about in popular film, at least as far back as Sneakers (1992) and Mercury Rising (1998) and other films. I think people who care have known about it for a long time.

Second, I did not expect any serious negative ramifications from our phone calls. I suppose I presumed honourable and just people were on the other end of the line, whose interests likely aligned with my own or whose actions were limited by sensible restraints on civil liberties. I think in a sense the fact that people were listening comforted me, expecting that there were good people whose sense of duty would be upheld.

All to say, it is not surprising to me that people are not up in arms. Perhaps it is apathy. Or perhaps along the lines of the reasoning I had as a teenager. Maybe something in between.

In any case, as a matter of interest, the posting for the job of Civil Liberties & Privacy Officer at the NSA seems to have been taken down. I have not heard of anyone being posted to the position, or it being squelched because of e.g. a hiring freeze in the shutdown.

about a year ago
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1967 Gyro-X Car To Be Restored

debrain Is a uniwheel car possible? (140 comments)

Oddly enough, I was just thinking of the use of gyroscopes in automobiles the other day.

I was wondering if a uni-wheel automobile would be possible with a gyroscope.

The physics is quite beyond me, I am afraid, curious though it is.

about a year and a half ago
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Surface Pro Sold Out; Was It Just Understocked?

debrain Re:The Surface RT did as well... but that mean muc (413 comments)

Define "poorly." Quote numbers sold and source for your data. You don't know. I don't know. Only Microsoft knows and so far, they aren't talking.

Silence is a statement.

It is easier to be cynical of words because they offer a target. Silence leaves doubt.

Corporate marketing is a typical rational actor. Silence about an event is a statement that words are less preferable.

The event may be inchoate, the words otherwise premature, or there may be no positive spin to the event.

In this case, large consumer purchases or reseller commitments are a clutch marketing figure. Any reasonable sales figures are pro-cyclical positive spin - popularity sells.

If history repeats itself, as marketeers are wont to do, the problem is predictable: sales numbers are unspoken because they are poor.

about a year and a half ago
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Student Expelled From Montreal College For Finding "Sloppy Coding"

debrain Re:Idiot. (633 comments)

Well said.

Just an additional note, since nobody else seems to have mentioned it: the student may have been a minor and the NDA unenforceable against him. It seems the age of majority in Quebec is 18.

about a year and a half ago
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SEC Investigates Netflix CEO Reed Hastings Over Facebook Posting

debrain Re:200k People! (190 comments)

Sure sounds public to me.

Me too. However maybe the SEC is trying to make a point? Is it a slippery slope - can we easily and objectively determine when a post to facebook friends not public? 200k people? 20k people? 2k? 200?

While this instance is fairly far out towards "public" on the public-private spectrum, this may be an attempt by the SEC to establish boundaries about what sort of behaviour it considers appropriate for the CEOs of large and publicly traded corporations.

about 2 years ago
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Half of GitHub Code Unsafe To Use (If You Want Open Source)

debrain Re:Bitbucket (218 comments)

If memory serves, the original post I linked was written by Scott Chacon, and was served on GitHub proper/blog for some time. The link I gave appears to be the last remaining mirror that Google finds.

about 2 years ago
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Half of GitHub Code Unsafe To Use (If You Want Open Source)

debrain Re:Bitbucket (218 comments)

If the rumours are true, BitBucket was a blatant screen-for-screen imitation of GitHub's design:

I understand that imitation is flattering to some point and copying one or two things is cool, but BitBucket copied our website screen for screen in nearly every major aspect without asking for permission or acknowledging the theft.

If the owners of Bitbucket have no qualms about stealing GitHub's creation ... should you really trust them with yours?

I thought it was worth $7 per month to go with GitHub for this reason.

YMMV.

about 2 years ago
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Sharp Overwhelmed By Volunteers For Early Retirement

debrain Re:Worse then you may think Sony did the same (103 comments)

This is a fascinating post. Thank you for posting it. Not enough is written about the fall of Sony.

Incidentally, from a previous post I wrote:

The history of Sony's management is quite fascinating. I've lost the link, but I recall there being an article about Sony's decision over who to replace their then-CEO around 1999 (Norio Ohga), who had been CEO for ages and brought Sony to new economic heights. The choice of his successor was either the head of Sony Entertainment (i.e. the copyright/media side of Sony) or the head of Sony Computer (i.e. the head of the electronics side). They ended up choosing the head of the copyright/media side of Sony, Nobuyuki Idei.

Anecdotally, since that decision, I've noticed that Sony's technology shine has dropped completely off my radar (i.e. I don't even turn to them to find out what the latest and greatest tech is, whereas at one point they were certainly a contender for something that I'd consider cool), while their foray into rent-seeking for their copyright has also gone off the deep end.

I might be wrong about the details of the history - I'd be interested in finding the article again, or having the background.

If it's true, I believe the change in the "personality" or "culture" of Sony reflects the decision that they made to make the head of their copyright/media division the head of the company. I believe their shareholders have been paying for that decision ever since.

about 2 years ago
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Court Rules Website Terms of Service Agreement Completely Invalid

debrain Re:Stupid. (148 comments)

FWIW, most of the binding arbitration clauses I've read lately have specified that the megacorp pays for the arbitration. YMMV.

Thanks. That makes me curious how the arbitrator selection would work i.e. whether arbitrators may be selected by the corporation based on prior favourable results. IMHO, that might expose the award to judicial review based on a systemic bias.

I would be grateful for the opportunity to review an example agreement of this sort, if you happen to be in a position to share.

about 2 years ago
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Court Rules Website Terms of Service Agreement Completely Invalid

debrain Re:Stupid. (148 comments)

You've *been* a lawyer? Not a very good one, I imagine. For a lawyer, there seems to be a blanket over your eyes that no lawyer I know has. Let us start:

I doubt you know many lawyers.

First, lawyers do fine with or without arbitration clauses

Really? Every lawyer I know is as broke as the rest of us, still trying to pay for law school 10+ years after graduating

It seems the lawyers you do know are not doing well.

I have done well. I am proud to count among my friends some of the most influential lawyers the world has ever known. I would tell you who they are, but you wouldn't know them.

Arbitration is generally more expensive than litigation, for several reasons including the obligation of the complainant to pay the arbitrator fees, contrary judges who are paid by taxpayers

That is a lie, or gross misrepresentation. Arbitration is almost always paid for by the defendant, who wishes to go through arbitration, because a civil suit is generally devastating.

You seem confused. LMGTFY. You shall find that the links say that arbitrations generally have fees split between the parties because, you know, that's what actually happens.

I can't even begin to imagine what you're talking about by a civil suit being devastating. For no apparent reason, that comment reminds me of the X-Files - sort of a dark, mysterious and sinister quality to it. Anyway, the result of a civil suit concluded by judicial determination is an enforceable award (which we commonly refer to as a "judgment"), which is effectively the same result as an arbitral award. Here, have a look, N.Y. CVP. LAW Â 7510 : NY Code - Article 75, Section 7501:

A written agreement to submit any controversy thereafter arising or any existing controversy to arbitration is enforceable without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award.

So there you have it. You win at arbitration and what's the prize? The right to get a Court to enforce it or turn it into a judgment. I know. Totally fascinating, right?

As for lawyers receiving most of the damages, that is an entire topic to itself. Class proceedings exist for three purposes: ... (3) correct bad behaviour

Jesus, no they aren't. You learn this shit in Legal 101. Civil is not criminal. If I have to explain any further, there is no hope.

See, oh there's so many ... here, you can't get clearer than this: Waheed v. Pfizer Canada Inc., 2011 ONSC 5057 (CanLII), retrieved on 2012-10-31:

> [27] Where there is a cause of action, an identifiable class, common issues, and a settlement, there is a strong basis for concluding that a class proceeding is the preferable procedure because certification would serve the primary purposes of the Class Proceedings Act, 1992; namely, access to justice, behavioural modification, and judicial economy.

If I may: You seem terribly indifferent to, or painfully unaware of, essential facts on this topic that determine the reality of those that live in it, and you concurrently lack a certain ... je ne sais quoi ... that normally inhibits people who know nothing about something from saying anything about it. Your post is utterly devoid of fact or insight, and aside from my personal entertainment while the family is in bed and I man the door for trick-or-treaters, your post has added nothing to the world and perhaps wasted someone's time other than my own. That's not very nice of you. I'm going to have to go ahead and ask you to refrain from further posting to the internet until you have remedied this whole reality - inhibition thing you've got going on. We'd all appreciate it out here. Thanks.

about 2 years ago
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Court Rules Website Terms of Service Agreement Completely Invalid

debrain Re:Stupid. (148 comments)

But it does benefit lawyers. Lawyers hate arbitration because you don't need a lawyer to arbitrate. Lawyers love class action suits because pretty much all the damages go directly to them, with the customers just getting a coupon for half off their next purchase from the company the screwed them.

This is nonsense. I've been a lawyer, arbitrator and class action litigator for nearly a decade now.

Let's break down your post.

First, lawyers do fine with or without arbitration clauses; I honestly don't care what the process is. Arbitration clauses do tend to increase the cost of litigation to individual litigants for several reasons, including:

1. Arbitrations are private; a finding of liability has no impact on subsequent cases, unlike a finding in Court;

2. Arbitration is generally more expensive than litigation, for several reasons including the obligation of the complainant to pay the arbitrator fees, contrary judges who are paid by taxpayers;

3. Arbitrations, except for the rare multi-party arbitrations, do not permit the resolution of common issues for all similarly situated litigants, unlike class actions.

All of the above discourage litigation against big, bad clients because the big bad clients increase the cost and risk of seeking compensation for wrongs. I have noted a trend across jurisdictions that those where the perceived costs of seeking compensation for wrongs is subject to high procedural barriers correlates with the pervasiveness of apathy and helplessness.

Class proceedings reduce (and often eliminate) risk to individual litigants.

As for class arbitration, the rules of arbitration generally do not permit class proceedings. However, there is nothing stopping individuals from agreeing to individual arbitrations heard and determined concurrently by way of contract. A properly crafted agreement would likely be as binding as an award from individual arbitration, and have many of the economies of scale inherent to class proceedings. This is rare because it would require the consent of a defendant, who has every financial (and public relations) incentive to increase the cost of and risk to every claimant.

As for lawyers receiving most of the damages, that is an entire topic to itself. Class proceedings exist for three purposes: (1) decrease the cost of individual litigation; (2) increase efficiency of the court system by determining common issues together; and (3) correct bad behaviour. On point one, it is almost always true, in my experience, that class proceedings are more cost effective than individual litigation --- you are almost certainly going to get more at the end of the day by being a member of a class proceeding than by hiring a lawyer to proceed on your behalf directly. All class proceedings in the world, as far as I know, give you the opportunity to opt out of the class and pursue your litigation on your own, in any case, so if you are quite so against the class proceeding benefitting the lawyers, you can bring pursue the litigation by yourself. It bears mentioning that many class proceedings are also highly speculative, and higher risk merits higher rewards - otherwise the competent lawyers would find something else to do with their time and many valid complaints would pass under the radar.

On the second point, arbitrations are typically significantly more expensive than litigation in court. You have to pay the arbitrator and due to the faster timelines it often proceeds to an actual determination more often, in my experience, than litigation (as litigation is often painfully slow and settlement is encouraged by way of process designed to be challenging and expensive - to encourage settlement).

Finally, correction of bad behaviour is a worthwhile goal in and of itself, and even if the lawyers achieved no financial compensation for the members of the class, it is worthwhile to reward those pursuing and advancing corrective behaviour through the adversarial process.

Which is all to say: Your post is not very well informed, and I would encourage you to bear the above in mind before posting similar nonsense in the future.

about 2 years ago
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Art School's Expensive Art History Textbook Contains No Actual Art

debrain Re:Museums don't let you (371 comments)

I have no doubts that everything you said was true. We live in a litigous society, and the law is sufficiently complex that nobody, yourself included, can possibly anticipate what may or may not be illegal. It's a crap shoot. That said, what you're describing sounds like a civil, not criminal matter, to the best of my understanding. It's not a crime to take those pictures. It's trespass (a crime) if you don't leave after you do it and they ask you to leave.

Sorry if I was unclear. Yes, everything I described was from a civil litigation standpoint. As a civil litigator, I see (and speak about) the universe through that lens. It's warped to most people, but has spectacular clarity on issues like this. :)

To be fair though, the discussion was about the distinction between copyright versus breach of contract or trespass, and almost all prosecutions of violations of any of these lot are civil.

about 2 years ago
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Art School's Expensive Art History Textbook Contains No Actual Art

debrain Re:Museums don't let you (371 comments)

Yes, and if you violate the "contract", they can ask you to leave. And if you stay, then they can charge you with trespass. This is no different than walking into a grocery store and scanning the items on the shelves for prices or taking pictures there either -- they don't want you to do it. Some places even have signs prohibiting "electronic devices" or photographs. But all they can do is ask you to leave, and forbid you from returning.

With all due respect, as a litigator with nearly a decade of experience involving intellectual property and licenses, I respectfully offer some suggested corrections to the above.

If you agree to enter the property under certain terms, you are bound to abide by those terms if you enter the property. Damages that flow from failure to abide can include, but are not limited to, losses and restitution. Restitution - the more likely larger set of damages - can include the reimbursement to the property-holder of any unjust enrichment - namely, any profits gained by breaching the contract.

This sort of litigation is not uncommon. It is not a matter of "they do not want you to do it", but the fact that one agrees to terms when entering into privately controlled premises. The visitor is bound to the obligations set out in the agreement to enter, or otherwise trespasses on the property.

There are bounds on what the terms of contract may be, notably excluding illegal or unconscionable terms (e.g. racism, slavery, onerous financial terms for breach, etc). I would argue that a prohibition on photography is not an onerous restriction barred.

Typically, a breach can be construed by the law in one of two ways. Either the failure to enter into the contract resulted in a conclusion of trespass, or alternatively the failure to abide by agreed terms in a breach of contract. In both cases, the Court would seek to put the party into the position had the wrong not been committed (i.e. return the property-holder to the position they were in before the trespass, or the position they would have been in had the contract been abided by).

In addition, one need not actually enter into an agreement to be bound by reasonable terms. For example, there is case law where people have been held liable to pay the fee for a guided tour because they knew the terms of payment for the tour, failed to pay the fee, but tagged along and received the benefit of the tour - then refused to pay after-the-fact. The Court felt the visitor had benefitted from the performance of the tour-guide, and the visitor was obliged to pay the equivalent amount as if they had entered into an agreement.

So a contracting property-holder can do quite a bit more than ask one to leave. They can bring a civil lawsuit on grounds of breach of contract or trespass. Of course, photographs taken for personal use would have fairly nominal damages, and those damages would likely have to be proven (contrast statutory damages for copyright infringement). Nevertheless, most common law states have a legal framework of this sort.

I hope the above is somewhat illuminating. Of course, seek the counsel of a lawyer in your jurisdiction for specific legal advice.

about 2 years ago

Submissions

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Judge orders disclosure of anonymous posters

debrain debrain writes  |  more than 4 years ago

debrain (29228) writes "The Globe and Mail is reporting that Google and a newspaper called the Coast must disclose all information they have about the identity of individuals who posted anonymous comments online about top firefighters in Halifax. The story in question is titled "Black firefighters file human rights complaint", and there are some heated opinions in the comments."
Link to Original Source

Journals

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debrain debrain writes  |  more than 10 years ago

Here I am.

Of all the forces that define the world we live in, compound interest is the most fearsome or loathsome, challenged only on occasion by the law or its absence.

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