For the those of you that have not been keeping up on the local gossip. Branson the other day thought he would attribute an article to Gary Daigneault. It is a common and long acceptable way of bringing a story to a blog and giving a bit of kudos to the original website that posted it. Blogs and websites have for years used links, and trackbacks as a way of mutual support of those websites the author of a post reads. Universally most website administrators take trackbacks and linking of their stories as a compliment and a way of increasing mutual hits on both the posting website and the original site location.

Gary Daigneault on the other hand doesn’t take kindly of people giving him and his cheesy website a bump and demanded what is called a “Take Down” [17 USC ?512(c)(3)] of his what turned out to be Cut and Paste article of a NPS News Release. Quickly as per my legal obligation, I unpublished the offending post and had Branson rewrite the story using information provided by the NPS. Problem solved… you would have thought.

One of the problems with some people (you my regular users are not among those that I would consider stupid) is they never read the Terms of Use on websites.

Section 2(B) of our terms of use states as follows:

B. In exchange for the access to Vote29.com AKA Cactus Thorns content described above, you agree not to sue Vote29.com AKA Cactus Thorns for its content, whether original or linked or quoted from another source, in any court, on any grounds whatsoever in law or equity. Should you violate this agreement by filing such a lawsuit, you agree to pay Vote29.com AKA Cactus Thorns ’s owner or owners the sum of one million dollars ($1,000,000) as liquidated damages, in addition to all attorney’s fees, court costs, and other expenses associated with this litigation, and to indemnify and save harmless Vote29.com AKA Cactus Thorns and its owners from any damage award made against them in such an action. Should this agreement not to sue be held unenforceable by a court of competent jurisdiction, you agree to binding arbitration, with all arbitration expenses to be paid by you. The arbitration panel shall be composed of three (3) weblog operators selected by Vote29.com AKA Cactus Thorns ’s owners or operators from those in the links list on the Vote29.com AKA Cactus Thorns site. The award in such arbitration shall be limited to (1) a monetary sum not to exceed $10; and (2) the publication of a retraction on the Vote29.com AKA Cactus Thorns site. Should this arbitration provision be held unenforceable in a court of competent jurisdiction, you agree to accept as liquidated damages in any lawsuit against Vote29.com AKA Cactus Thorns the sum of ten dollars ($10), and you agree that you will be entitled to no other relief of any kind in law or equity. You agree that all disputes concerning these terms of use or the content of Vote29.com AKA Cactus Thorns .Com are to be resolved in the courts of San Bernardino County, California, under the laws of California and the United States of America.

Glenn Reynolds of InstaPundit.com and the Pajama Media wrote these terms years ago and have been tested in California courts and have been found valid.

Gary Daigneault continues to harass Branson through emails that he is going to sue him for copyright infringement. Since the offending post was removed, as per his request, I am at a loss to see his Tort. But in any case the Terms of Use are pretty plain as to the users recourse and I have contacted fellow bloggers and website owners in the area as to their availability for arbitration of this matter. Many have expressed a desire to hear this matter. I could use the million dollars.

In his latest email rant to Branson, Gary said in part:

As far as you reference to Steve Brown, the legal opinion is, quoting here, “

Pictures posted on myspace are no longer private. If you can save them to your hard drive from a public space like myspace, they’re public.”

The bigger question is why your outrage over the Steve Brown story?, it is factually true that he went in front of an elected body representing himself as the “President” of an Organization that, in fact , did not exist.

If you truly were out to do real news, not just attack and vilify Dan’s enemy list, you would have been outraged that he was misrepresenting himself. It seems it is more important to you to go after me, than the truth.

Your sending e-mails to the area Rotary Club’s and other non-profit Organizations accusing me of extortion was libel and slander, with “malice aforethought”. That was where you stepped over the line, and forced me to contact legal recourse. My attorney assures me that your actions are a specific example of slander because it went beyond your usual publication methods and was not presented as an opinion, but the truth, with intent for the “intentional infliction of emotional distress”. Ben, I don’t mind open civil discourse but this deliberate attempt to malign my character by going to third parties went far beyond that. I would respectfully suggest you seek legal representation.

I am taking the steps necessary to protect myself and my business from the theft of intellectual property from KCDZFM.com and the ongoing malicious and factually untrue personal attacks from Cactus Thorns.

Gary Daigneault

The latest , email implicates me in some sort of cabal and that I keep some sort of enemies list. Gary know this, I don’t keep a list and after so many run ins with you over the years I am ambivalent as to you.  Let me explain what ambivalent means to so you’ll be able to comprehend.

Ambivalence is a state of having simultaneous, conflicting feelings toward a person or thing. Stated another way, ambivalence is the experience of having thoughts and emotions of both positive and negative valence toward someone or something. A common example of ambivalence is the feeling of both love and hate for a person. The term also refers to situations where “mixed feelings” of a more general sort are experienced, or where a person experiences uncertainty or indecisiveness concerning something. The expressions “cold feet” and “sitting on the fence” are often used to describe the feeling of ambivalence.

The word “ambivalent” derives from the Latin prefix ambi, meaning “both” and valence which is derived from the Latin valentia, meaning “strength”. It is common to use the word “ambivalent” to describe a lack of feelings one way or the other towards issues or circumstances. A more specific and conventionally accepted word to use in this case, however, would be “indifferent”. A good way to remember proper usage is to remember that the prefix ambi means “both”, so if you are “ambivalent”, you have both positive and negative feelings towards something, or have feelings for both sides of an issue.

Ambivalence is experienced as psychologically unpleasant when the positive and negative aspects of a subject are both present in a person’s mind at the same time. This state can lead to avoidance or procrastination, or to deliberate attempts to resolve the ambivalence. When the situation does not require a decision to be made, people experience less discomfort even when feeling ambivalent.

In other words Gary, I neither have many negative or positive feelings for you. Think of yourself as Yeast. Yeast can be good as in Bread and Beer, but the yeast can also be a vaginal infection. So at times you and I are in complete agreement on certain subjects much like yeast compliments a good beer and then other times I’m thinking that the community would be better off injecting a big old tube of Vagisil at Hallee Road. That is true Ambivalence.

So, I’m kind of tickled at watching you do all these back flips every time some one tries to either quote you, or accredit you on some website. For a fellow so worried about his legacy as a writer and or journalist you sure worry about people trying to promote you. I personally would have taken Branson’s blog post as a compliment, because face it, you can’t write for shit anyways. He did you a favor. At least over here you had a chance of being read. I mean once the 300 or so folks that listen to your radio station, listen to your morning report, most of what you say is to the wind anyhow.

I’m asked all the time if I heard this or that on “Gary’s News.”  I got to keep telling people no, I bought a Sirius Radio Receiver just so I wouldn’t have too.

Now lets talk about “the ongoing malicious and factually untrue personal attacks from Cactus Thorns.” Can you be specific? I mean you’d a thunk by now you could have come up with some sort of defense on these recent stories. You always have before. You used to be a constant poster. Could it be you are having trouble justifying some of this stuff yourself? It is hard to dispute public documents ain’t it?

Bottom line Gary, You are a Public Person. To prove “libel and slander, with “malice aforethought” is a mighty task for a Public Person. Ask the many of us that you a have over the years bashed on your radio station. We were told by our attorneys, that the hurtle is huge and very very expensive and the chances of success is very very rare indeed. I got to tell you, that is what prevented me from suing your ass ten years ago.  I got over it and take criticism now with a grain of salt and take bashing by my detractors as a sign that I am doing my job. I would advise you to take a similar posture.

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