Month: January 2014

I was looking for the one who laid the golden egg.

I remember when I booked the flight out to San Fran, it was for the protest. Then, I found out about the rally and changed the booking. The Free Dmitry rally was bound to be spectacular. Stallman was there, Lessig, Kuhn, Dmitry, some other people from the EFF, and Don Marti. I was in!

This was so different from what I had experienced on the day of the first DMCA protest in D.C. about a year prior. I was stoked. Seriously.

The logo you see above was created in GIMP by “Kraken”, a regular in IRC #Slashdot. Back in those days, a lot of /. authors were hanging in Freenode. Lilo was still around and it was all good times. This was an excellent way to get info and get things moving. I miss IRC. Needless to say, my most recent experience in IRC was a bit counterproductive to my life. I call it, “the Wikimedia incident” http://www.ch1x0r.net/?p=25

As I climbed the stairs to the rally, I was taken aback. There were familiar faces for certain. There were a lot of unfamiliar faces also. I had a camera so I was deemed “press”. That was funny because all I had was this cheesy Hi 8 analog thing I got at a pawn shop. I was such a novice it was sick. I had no tripod, nothing. I just wanted to document the day and I was young, and did not do justice to that event. I think if that would have happened today, it would have been sensational with all the video capture. Back then, not so much.

Of course the first person I encountered was Don Marti. Fantastic guy, author at the time for LinuxJournal.  Then, I believe he to the position at LinuxJournal as Editor in Chief. He was the organizing the San Fran Protests. I had a lot of respect for the guy. Still do.

I had been to a few protests (New Mexico, DC and organized all of Phoenix) and encouraged protesting when the EFF requested we did not.

Of course, I didn’t want to interfere with any negotiations. The inside word I had was the DOJ was pursuing, there would be nothing Adobe could do and we should consider this as EFF was negotiating. So, as I had the one protest website prior to the Free Sklyarov campaign, I encouraged protesters to keep doing what they were doing.

Prior to this rally, Dmitry did write to me. I had sent him a letter, parts of my DMCA book and a few images during his incarceration. He was very nice and wrote me back. I appreciated that I was able to give some peace to someone in his situation. I was a little prepared for this event. I had not expected this to happen to a foreigner.

In fact, I was supposed to be at Defcon when it happened. However, I had other responsibilities that interfered. I had hoped to attend the black and white ball that year at the very least. It didn’t happen.

Now, here is something really strange. When Dima was moved to Oklahoma, I did not know that my sister (who has played for the WPBA – Women’s Pro Billiards) was on her way – driving mind you, to Oklahoma. I kid you not. We agree that I was perhaps meant to get there. If only I had called her…

I did make it to San Fran. Don introduced me to Bradley Kuhn who then proceeded to introduce me to RMS. This was a fantastic meeting and I learned a lot from him. I learned about freedom. I learned about the *.doc format. I learned RMS does not like Coca Cola!

I spent some time discussing various topics when people started to come into the room. I don’t know why I left the room that day. By all accounts I had every right and reason to be there. I suppose I was not “officially” invited. I felt awkward. I never let anyone know I was the author of the book “DMCA”. I never let anyone know I was at the first protest or following DMCA cases, working with the Berkman center, etc. etc.

I just left. Of course, before I left the room, I looked at my “peers” and said, “Don, Bradley, Larry”.

At that RMS said to me, “Marcia, we’ll pick this up later, where we left off.”

I always liked him for that. I felt less -oh what is the word I’m looking for – rejected.

I think one thing I really have a problem with regarding the “work” I’ve done is I was never really regarded at all as credible. I suppose I could have been more “professional”.

My website was DMCASUCKS.ORG.

Then, when all this occurred, people didn’t want to link to me. I saw their posts. It didn’t matter that I was the first. They didn’t like my name. So, I suppose my content was irrelevant.

I know the DMCA inside and out. It is rather disturbing. I started out with the first book as knowing some.

Then the second book – http://www.faqlinux.com/Copyright/DecadeDMCA_wilbur.pdf

I learned a lot about the DMCA. The third installment – DMCA in your pocket  – http://www.faqlinux.com/wp-content/uploads/2014/01/PocketDMCA_Wilbur.pdf

Honestly… why do I know so much about the DMCA?

It helps a little. However, other than the exciting adventures and meeting awesome people, I really cannot do much with the info… yet.

In 1998, I met a nice man at a luncheon for the college. At the time, I was a student in the college of engineering at Arizona State. If I recall, it was an IEEE event or something related to the Computer Science program. Free lunch. I heard that!

I asked this nice man if he would like to sit with us. He seemed pretty hip and our kind of guy. Also, he seemed new and we were always nice to the newbies… I asked him if he was a grad student. He responded with “not for awhile”.

He declined because he said he, “sorta had to sit up front”. He was presenting but said, “maybe another time.”

His name was Grady Booch.

For those of you who do not know him, he is a pretty awesome guy.

TWITTER:
https://twitter.com/Grady_Booch

Anyway, he developed something with a couple of guys called UML. Maybe you heard of it? Unified Modeling Language.

At any rate, in his presentation, Grady mentioned a few things:

• How he was using Fiber and it was the new thing
• His work
• Oh, and the “Booch method”

I really liked the part of the Booch method.

Basically, the method was, “write good code”. 

http://en.wikipedia.org/wiki/Booch_method

He was absolutely right. We needed error checking, good programming.

• How many times have you had to work with spaghetti code?
• How many times have you gone, “What the…?”

Truthfully, I’ve seen substandard coding and it is ugh_ly!

I ask questions like:

• Who wrote this code?
• Was this person brain dead or burnt out?
• Where are the comments?
• What is the logic here?
• Is this person on crack?

Or some of my favorites that I wanted to point out to the architect who hired his friend to code:

• Yeah, well “Shouldn’t max be greater than min…. just sayin”
• Why did you hire 3 programmers for QA, a cashier for Crystal Reports, a charlatan for Project Manager and a script kiddie as a a programmer?
• Did you know that the Crystal Reports girl asked the PM if she could move /bin?

Let’s face it, there are a lot of people who are pretending to have skills or do a job they cannot do such as:

the programmer who cannot code, the database admin who knows little about what a join is, the technical writer who is not technical and cannot write, the QA manager who manually tests, the web admin who cannot write a file to the server, the Oracle guy who knows nothing of PL SQL and finally, the CTO who implements a $150k system so employees cannot use email but leaves telnet open.

Oh, these are the people in my neighborhood… in my neighborhood… in my neighborhood…

They’re the people that meet, when you’re working and elite… they’re the people that you meet each day!

Anyway, stay elite, stay alert. Forget their flaws. If you get frustrated like me, you might start a blog that rants about people who suck at their jobs!

There are a few other topics worth discussing such as –
AGILE vs. GOLD PLATING

When is enough enough or not enough enough?

So sick of this one. Just write good code. Seriously.

And take advantage of flawed code, legally and for fun… Just joking about that one. Even if it’s not fun… take advantage!

More on TDD.

http://net.tutsplus.com/tutorials/php/the-newbies-guide-to-test-driven-development/

Try Simple Test

http://www.simpletest.org/en/extension_eclipse.html

Permission is granted to copy, distribute and/or modify this document under the terms of the GNU Free Documentation License, Version 1.2 or any later version published by the Free Software Foundation; with no Invariant Sections, no Front-Cover Texts, and no Back-Cover Texts. A copy of the license is included in the section entitled GNU Free Documentation License.

It was an old debt. The debt was from 2007 when I was pregnant with my youngest son. I had complications as I was older. There were required visits to the doctor and then, there was the mandated bed rest.

The doctor wanted me on 100% bed rest but I said I might lose my job. Even with the Family Medical Leave Act, I was having a C section without a doubt and needed those funds for the weeks off after delivery.

So, since my doctor was near the workplace, I worked 2 mornings per week. I had at least 10 co-pays per month for visits. I had co-pays for medicine and labs, etc. The medical at my work was good. However, the co-pays were an expense I was not expecting.

After the C-section, there were more complications. Surgery was deemed necessary. The expense for this would be at least 1500.

My credit card bills were behind. I had deferred a few but there was one that made it (what I would deem) impossible for me to acquire. I even stated on the phone – That is an impossible situation. There were 8 different qualifiers, if I recall correctly. I was short only 2. However, I was short and despite the “Payment protection plan”, I was not given any deferment. So, I had no real choices at that time. I was in grad school and struggling to get by. It was not an easy time, financially.

That credit card was let go. I admit. The card value was only something like 300 dollars, after all. I was sure that wouldn’t be so bad.

This was 2007. I knew that Arizona statutes were only good for 3 years for credit cards.

According to ARS 12-543, the statute of limitations expired at 3 years.

Then, there was a change to statutes! Credit card was considered 6 years under ARS 12-548.

I was concerned that the new statute would override the old one. Then, I realized… wait a second. No way. If the Statute of Limitations expired… that’s it, no matter what law came after that…!

So, why were they taking me to court? Why were they claiming contract? Maybe they were hoping for a default judgement. This happens a lot. People do not answer. They get intimidated by these tactics. I admit I even was concerned. I knew the SOL expired. I knew they were grasping at straws.

The truth is, had I not answered, they probably would have won by default. They were asking over 1k for a $300 credit card. You know what I think. I think that once a customer defaults and the account is 120 days past due  no more interest should be added to a card. Seriously. They stated it was over $800. It was a $300 card!

I was not really concerned but there was a concern. So, I researched and discovered there is a statute that covers change in law.

ARS 505 – Effect of statute changing limitation states: An action barred by pre-existing law is not revived by amendment of such law enlarging the time in which such action may be commenced.

The West Mesa Justice Court of Maricopa County also recently held that the debt, which was an old credit card account, was an open account and thus barred by the three (3) year statute of limitations under A.R.S. § 12-543. See Action Financial, LLC v. Foran, CC2008189319.

These two cases may not settle the debate about the statute of limitations on a credit card debt in Arizona. However, the possibility of dismissal was there.

There were a few things at play here I want to express here:

1. A case prior to the change of the statute and the statute of limitations is expired, needs an answer the complaint with the fact the statute of limitations expired. Otherwise, there may be a situation with DEFAULT JUDGEMENT. Default judgement occurs when a case is brought to the court without an answer. Sometimes those past the Statute of Limitations may slide through!

2. If  the case was after the change of statute, I don’t know. I considered taking a look at other items such as right to represent.

I had the opportunity to work in Finance for a processor/acquirer. There I learned a lot about law governing and regulating credit cards.

The Truth in Lending Act defines credit card as separate from contract, I believe.

Arizona Statute:

ARS 12-548. Contract in writing for debt; six year limitation; choice of law

A. An action for debt shall be commenced and prosecuted within six years after the cause of action accrues, and not afterward, if the indebtedness is evidenced by or founded on either of the following:

1. A contract in writing that is executed in this state.

2. A credit card as defined in section 13-2101, paragraph 3, subdivision (a).

B. If there is a conflict between another jurisdiction and this state relating to the statute of limitations for a debt action as described in subsection A of this section, this section applies.

But what about ARS 12-548?

A credit card is not a contract. So forget A1. Some law offices may try to take someone  to court and claim the open ended credit card account is contract when there is no note or contract but a simple agreement or disclosure. Therefore, no contract in writing is executed in the state unless someone signed a contract in writing executed in the state of Arizona.

A2 is where they may try to take someone. This may be used for cases after the 2011 change. The definition is clearly credit cards as 6 years. I don’t know what more can be done in these cases as I have no experience here. There could be a loophole like the right to represent or something similar.

Of course, this could be a great challenge for courts as NFC is becoming more in use.

Now, in the case where the Statute of Limitations expired prior to 2011, the law office may attempt to file a complaint stating the credit card account is contract. This really is the strategy they used on me.

I requested the plaintiff to provide the “contract”. They cannot. They could not. If the law firm is working for the original creditor HSBC, for example, the very first line in the agreement states that this is an Open Ended Credit card. In that case, I pointed this out that the lawyers admit this is open ended credit and the statute of limitations is far expired.

To make it a little more simple I will outline this situation that happened to me. The most important step for me was to file an answer. I was fortunate this was in justice court as the fee was lower than had this been a higher credit card and gone as civil in superior court.

1. Lawyers filed a complaint.

2. I filed an answer within 10 days.

3. They did nothing.

4. Case became inactive. When this happened, the plaintiff was sent an inactive letter, not me.

5. A disclosure was sent by plaintiff that included credit card agreement and disclosures. They did include paperwork regarding the right to represent. This is a required document if a servicer is collecting, I believe. In my case, the debt was purchased by Asset.

5 days after inactivity was due for dismissal (according to my calculations), the plaintiff filed a motion to set. I found this untimely and did not realize they did have until another week or so to file.

Note that even if a case is due for dismissal, this is entirely up to the judge. Untimeliness may not be a benefit due to inactivity. Further, some courts do require paperwork to activate a case.

6. I filed an objection to the Motion to set. I included the information about the case being past the Statute of Limitations on Credit. I included the “agreement” (an unsigned disclosure from HSBC) and highlighted the part that stated – in the first sentence that this was an open ended account. (NOTE: Remember, if a yellow highlighter is used and the document is copied or faxed, this could black out the part you want highlighted! I simply underlined the section.)

I stated the fact the Statute Of Limitations on open accounts was over in 2010 and that the Law office admits in their own paperwork they filed this is an open ended account!

Then, I respectfully moved the court to dismiss with prejudice based on the untimeliness.

and then….

7. Motion DENIED

🙂

Of course, I could not really afford a lawyer for this phase. I was considering this if I had to go for appeal. It never got to that point. And now the real question is, take the LSAT in Feb or June!