Why I'm voting for Pat Arotin -- Part 2

By John Wilkenson

(NOTE: To see an update in events, please scroll down to "UPDATE" below. There are many text/links in this essay. They look grey, but if you put your cursor on them, they become underlined so you can see them to click on them. All of the banner/links also take you to a destination URL.)

If I told you I was voting for Pat Arotin not only because of what I consider to be an over-the-top Daily Sentinel editorial but also what I suspect are dirty tricks from the Matt Lewis camp, you might say, "What?! Say it ain't so, Joe!" So let's look at it.

Yesterday, Mesa County Sheriff's Department (MCSD) "Information & Communications Manager", Heather Benjamin (above right), sent me what I consider to be an inappropriate email requesting that I take down the little informational banner/link of the MCSD logo (above left) which is linked to the Mesa County Sheriff's website for the sole informational, educational and journalistic purpose of facilitating public access to a public website. At that moment, the story became about Heather Benjamin and the logo. Of course it's pretty hard to write a story about a logo unless you engage in the 1st-Amendment-protected journalistic fair use of showing the public what the logo you are talking about looks like.

I'm still in the process of deciding whether or not to take the image down. But I need more information from Ms. Benjamin first. I'll get to the reasons why I believe my use of a low-resolution thumbnail-size image as an informational link to the MCSD website is perfectly legal in a minute. First I want to articulate my logic-based suspicion about what I would consider to be dirty tricks from the Matt Lewis camp.

I suspect that Benjamin would not have sent me the email on her own volition. I suspect somebody in the MCSD administration put her up to it. Logic dictates that that "somebody" is higher up the MCSD food chain than Benjamin herself. That would make the prime suspects, acting Mesa County Sheriff, Rebecca Spiess, or Matt Lewis himself.

"Anonymous sources" -- (the MSM loves to use that term) -- tell me that both Spiess and Benjamin are pulling hard for Pat Arotin's main political competitor (and the Daily Sentinel's choice), Matt Lewis. So let me take this opportunity to publicly thank Pat Arotin for having the courage to face what he probably anticipated would most likely be a major "Good Old Boy" (GOB) sh*tstorm/witchhunt if he dared to run for sheriff. God bless you, Pat!

The first thing I need to know from Ms. Benjamin is: what are the specific name/s of the person/s who put her up to sending me the email in question? Because a friend of mine did both a trademark search and a copyright search for the image in question and found nothing, what is the trademark number of the allegedly infringing image (so I can verify it before finalizing my own decision)? Meanwhile, I would refer interested persons to the "Legal Disclaimer (for images)" page of this website.

If interested people will scroll down to “WEBMASTER'S PERSONAL FAIR USE RATIONALE” – on the "Legal Disclaimer (for images)" page of this website -- they can read why I believe I have used the images in a perfectly legal way.

It would seem from Benjamin's email that the MCSD is thinking about making some kind of claim on intellectual property. Question is, what kind of intellectual property? I don't see any. What I see is a symbol of the people who are supposed to be my servant, NOT my boss. What we have is a public agency and public employees telling their boss (the public) that they cannot make an informational banner/link out of a thumbnail-sized image the public (not the MCSD) paid for and owns, under conditions where the link directs the public to a public website. On its face, that doesn't make sense to me. It brings up another question I want to ask Ms. Benjamin: what are the legal differences between a low-resolution thumbnail-sized banner/link and a text link such as "Mesa County Sheriff's Department" which takes the reader to the very same place (URL)? I can't see any difference in principle. To me, it's all 1st-Amendment-protected informational free speech and journalistic fair use.

It is my understanding and belief that the images fall under the "Fair Use" doctrine for several reasons:
1. The image is used for educational and informational purposes only and in educational and informational ways only, and for no other purpose/s. The Mesa County Committee of Correspondence (MCCC) website is purely a 1st Amendment website. Money is not involved in any way. Neither the MCCC nor MCSD websites are in any way commercial profit-generating enterprises with which trademarks are traditionaly associated.
2. The image in question is small (140 pixels) and of low resolution, so any copies any third party might make of it would be of extremely inferior quality.
3. The image illustrates the text next to which it appears, which describes the character, idea, related subject matter and/or surrounding circumstances being discussed or portrayed.
4. The image constitutes a banner/link, linking the reader to the Mesa County Sheriff's website. It is therefore directly informational by facilitating public access to an important public website.
5. The image does not limit the trademark/copyright owner’s rights to market or sell the work in any way. Nor does it interfere in any way with the Mesa County Sheriff's Department to do its job.
6. The image is used on various other high-traffic websites – specifically the Mesa County Sheriff's website -- so its use on mesacountycommitteeofcorrespondence.com, a very low-traffic website, does not make it significantly more accessible or visible than it already is.
7. The image is being used in an educational and informative way and should not detract from the commercial value of the original work in any way. Nor should it detract in any way from the ability of the Mesa County Sheriff's Office/Department to do it's lawfully legitimate work.
8. The image is not being used to make and/or sell any counterfeit law enforcement products of any type whatsoever or impersonate any law enforcement agency, officer or employee in any way whatsoever, whether directly or indirectly.
9. There is no possibility for any mentally competent person to confuse the Mesa County Sheriff's website with the Mesa County Committee of Correspondence website or my blog articles/essays.

"But what are the Grinch and the Troll banner/links doing?" you might ask. Easy. It's called "satire" and "Fair Use". You see, the 1st Amendment allows me to poke fun at the Fair-Use-illiterate grinchy trolls in the "Good Old Boy" (GOB) MCSD administration who obviously take themselves WAY too seriously. See, e.g., Hustler Magazine v. Falwell, 485 U.S. 46 (1988). The Cheerios banner/link I just threw in for variety because, unlike the MCSD, they are a commercial for-profit enterprise and I figured they wouldn't mind the free advertising.

As I said, I have not yet made my final decision as to whether or not to take down the banner/link in question. But I do need more information from Heather Benjamin than just her allegation that the image is trademarked -- usually products (e.g. Cheerios, Quaker Oats, Ford, Chevy, etc) are trademarked, while intellectual property (movies, artwork, music, books, magazine articles, photographs, etc) are copyrighted -- and that I didn't ask for permission to use the logo in the strictly fair-use way that I did. (Full disclosure: I freely admit that I neither asked nor received permission from the MCSD to use the image in the manner I did.) Taken in accurate context, intent and function of the use, I didn't -- and still don't -- believe I had any legal obligation to obtain prior permission.

I would like to take this opportunity to publicly respond to Heather Benjamin's request by inviting her to share with me (and the public) any legal theories the MCSD might have as to why my purely journalistic and informational use of the image constitutes some sort of illegal infringement against legitimate intellectual property. I would also request that she supply me with any and all on-point controlling case law cites which she believes support her allegation. I also request that, in the event I decide to replace the photo/image with a hand-drawn line-drawing image of the exact same logo (in the same 140 pixel size), she explain to me (and the public) her legal theories as to why a thumbnail-sized hand-drawn version of the logo would be legal, while a thumbnail-sized photo version of the logo would constitute infringement against intellectual property. If she can persuade me that her legal assessment of the situation is correct, I will cheerfully take the image down. So the ball of good faith in an attempt to avoid unnecessary litigation1 is in her court.

As for my use of Heather Benjamin's picture above: under the circumstances, she can have no legally cognizable so-called "reasonable expectations" of privacy. She is a public employee who chose to make herself into a public "news" story, in addition to which, she published her own picture on Twitter (which is where I got it). So her picture was out in cyberspace for the whole world to see. As for Rebecca Spiess' picture, she's a public person and I got it off the MCSD website where it too was published for the whole world to see. My journalistic, informational use of those ladies' pictures self-evidently falls squarely within the parameters of the Fair Use doctrine precisely because Ms. Benjamin and whoever put her up to her emails made themselves part of this story by what seemed to me like a subtle attempt to intimidate a citizen journalist for purely politics-driven "pay back" for something I wrote. If Ms. Spiess is not guilty, then perhaps she will find out and correct whoever is.

UPDATE:

I have received a second email from Heather Benjamin in which she sent me a copy of the MCSD logo Trademark document. As you can see, the Registration Number is 4,562,903, and it was registered on July 8,2014. I have no reason to believe it is not legitimate. In her email, Ms. Benjamin said, "I've attached our Trademark certificate for your records. Once again, please remove it from your website as I previously requested. This request is made professionally and respectfully, I ask the same from you." But, once again, Ms. Benjamin conspicuously did not include any articulable reasons as to why she seems to believe that, in accurate context and intent, my use of that logo as a thumbnail-sized low-resolution banner/link to the MCSD website falls outside the legal parameters of the Fair Use doctrine. So I sent her my email in response in which I requested her to do so with specificity. Then, after further consideration, I sent her a second email clarifying my initial response.

At the top of this page, you can see the color version of the MCSD logo. In the body of this essay you can see some other versions of the same patch which appear in much higher resolution on other websites such as HERE and HERE and HERE. To my knowledge MCSD has not complained about those. Why not? Content? Context? Political disagreement? Personal discrimination?

To the left just above, you can see a black-and-white version of the MSCD logo which appeared on the trademark document. To the right just above, you can see the cartoon version I made with a graphics software. Just above the MCSD's black-and-white trademark-document version, you can see a parody "Bullwinkle" cartoon version I made of the MCSD's logo, just to show them how silly they are being. Is there a legal difference between any or all of these banner/links (in accurate context and intent) for the purposes of the Fair Use doctrine? If so, Ms. Benjamin seems inappropriately reluctant to explain why.

The MCCC website is 100% informational, educational, journalistic, and political. It has nothing whatsoever (0%) to do with money, period. Donations are not solicited and would not be accepted. There is no way I will allow Mesa County's cutesy GOB gang to try and find a legal toehold against MCCC. MCCC is all about trying to facilitate transparency and accountability in government and exposing the "Good Old Boy" lies in government and the MSM. We're talking 100% 1st Amendment freedom of political speech. The U.S. Supreme Court has long ago said that the political speech (of the kind found on the MCCC website) is accorded the highest level of protection by the 1st Amendment. The MCCC is going to monitor the MCSD's performance, not the other way around, because government is supposed to be the servant, and "we the people" the boss. I have no intention of submitting my writings and choice of fair-use banner/links and other artwork to the MCSD for their approval. Nor do I have any intention of submitting guest articles for the MCSD's approval. "We the people" have every intention of restoring the U.S. Constitution to its rightful status as Supreme Law of the Land.

The MCSD's police-state control-freak behavior raises a lot of questions. There is the question of size. If 140-pixel banner/links are illegal, what about 120-pixel banner/links, 90-pixel banner/links, and/or 60-pixel banner links? What size banner/links does the MCCC think are legal? There is the question of color. What color banner/links are legal, or are only black-and-white banner/links legal? Then there is the question of content. Which kinds of images are legal to use in the making of banner/links, and which kinds are illegal? If I made by hand -- as I have done -- a line-drawing original (and copyrightable) cartoon version of the same logo, would the MCSD think that was an infringement, too?

The whole purpose and intent of how I use banner/links is purely informational, educational and journalistic. I'm in effect telling the reader: "If you click on this banner/link, it will take you to where it looks like it's going to take you". That, plus banner/links are much easier to see, and are visually more interesting to the reader. On the MCCC website, you are NEVER going to click on a MCSD or Cheerios banner/link or text/link and get taken to some place different than you think you're being taken. The MCSD banner/link at issue is, in effect and function, a sort of "front door" to the MCSD website, inviting the reader to go to the MCSD website without taking the extra step of using the Google search engine. As a matter of 1st-Amendment-protected political philosophy, your humble websmaster has despised Google ever since they helped expose Chinese dissidents to the tyranny of the totalitarian Chinese government.

I put some thirty LEGAL, Fair-Use-friendly banner/links in this essay, ladies and gentlemen of the "we the people" jury. If you were the MCSD or the Daily Sentinel, which banner/link would you prefer to have represent the virtual front door to your website in cyberspace, the snarky, satirical ones, or the official-logo respectful and serious ones? IMO, the answer to that is a "no-brainer". When I used the official MCSD logo, I was already being "professional" and "respectful", à la Heather Benjamin's request. I tried to give the MCSD as attractive and respectful a front door as I knew how. IMO, it was whichever unnamed person in the MCSD chain of command who put Heather up to emailing me, who was acting in a devious, manipulative, disrespectful and unprofessional manner. Hence this satirical object lesson, this tutorial in banner/links and Fair Use.

In closing, I confess that I have a huge problem with MCSD's timing their request right in the middle of the sheriff's election. Why not at least wait a few days until the election is over? What Ms. Benjamin apparently didn't understand when she sent me her emails is that they gave me valuable insight into what the "Good Old Boy" culture at the MCSD is like. And I suspect we have only seen the tip of the iceberg. For me, that clarified the need for meaningful change in the GOB culture within the MCSD administration. IMO, that means voting for Pat Arotin.

BTW, if you answered "ALL OF THEM" to the question, "Which of these links are legal?", give yourself an A+!

As Matt Drudge likes to say, "developing..."

(NOTE: Article 2, Section 10 of the Colorado Constitution says in pertinent part: “Freedom of speech and press…every person shall be free to speak, write or publish whatever he will on any subject, ... and in all suits and prosecutions of libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.” See also the legal disclaimer for this website.)

LAW REGARDING BLOGGERS:

Courts are saying that "regular citizen" bloggers have all the same 1st Amendment free-speech protections that so-called professionally trained "journalists" who work for the institutionalized establishment media do.

Freedom Of Speech, Permissible Tailoring And Transcending Strict Scrutiny, 144 U. PA. L. REV. 2417, 2445 (1996) - by Eugene Volokh - Volokh's Twitter

The First Amendment and Restrictions on Political Speech, by Roger Pilon - Cato Institute

It's Perfectly Legal To Film The Cops - Huffington Post

NYPD cops receive memo reminding them they can be filmed while on duty - NY Daily News

Illinois Supreme Court strikes down eavesdropping law as too broad - Reuters

Know Your Rights: Photographers - ACLU

Supreme Court Requires Warrant for Cell Phone Searches by Police - ACLU - See Riley v. California, No. 13–132. Argued April 29, 2014—Decided June 25, 2014.

How To Talk To The Police 101, by John Wilkenson

A Declaration of the Independence of Cyberspace, by John Perry Barlow

What stops free flow of information is dangerous, by John Perry Barlow

Pierce v. U.S., 252 U.S. 239 (1920) - “The fundamental right of free men to strive for better conditions through new legislation and new institutions will not be preserved, if efforts to secure it by argument to fellow citizens may be construed as criminal incitement to disobey the existing law merely because the argument presented seems to those exercising judicial power to be unfair in its portrayal of existing evils, mistaken in its assumptions, unsound in reasoning or intemperate in language.” ~ Justices Louis Brandeis and Oliver Wendell Holmes, dissenting.

Yates v. United States, 354 U.S. 298 (1957)

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969) - “The very “purpose of the First Amendment [is] to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.”

Brandenburg v. Ohio, 395 U.S. 444 (1969) - "Though I doubt if the 'clear and present danger' test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace." ~ William O. Douglas

Buckley v. Valeo, 424 U.S. 1 (1976)

Thomas again calls for overruling of Buckley v. Valeo - First Amendment Center

See also the Legal Disclaimer page for this website for a more in-depth discussion.

RECENT VIDEOS, BLOGS, ARTICLES, COLUMNS, AND STATEMENTS:

SHAMELESS SELF-PROMOTION: See John's Twitter for one of the web's most eclectic mashups of interesting real-time news articles. I surf the web for interesting real-time news stories and informative tidbits so you don't have to.

What constitutes trademark infringement? - by Harvard Law

Trademark infringement - by Cornell Law

When is Unauthorized Use Not Trademark Infringement? - by LegalZoom

Gerry Spence on the American "justice system"

Gerry Spence – The Spence Law Firm: Who We Are - (Note: Your humble webmaster didn't have the computer skills necessary to embed this video, so interested persons will just have to click on the link.)

CIA Officer (Robert D. Steele) Explains the Good Old Boys' Demise

Webcam video from November 3, 2014 03:24 PM, by Karen Hudes - YouTube video

Andy Hoffman-Fed’s Biggest Fear-Loss of Confidence in Dollar - YouTube video

Jim Rogers - Sell Everything & Run For Your Lives - YouTube video

Stop the Coming Civil War In America - Michael Savage - YouTube video

George Carlin - Language complaints at American Press Club - YouTube video

Mesa County Elections - Return your Ballot! - YouTube video - Your humble webmaster included this video just so you can see that government has some idea as to what the new media and technology are all about. This video was embedded at http://clerk.mesacounty.us/elections. Notice how charming and personable this "you can trust me" propaganda salesman is in his cute and crooked litte bow tie! So, never mind that power corrupts and absolute power corrupts absolutely. OF COURSE you can trust your friendly government "partner"! (Yeh, right.)

Detroit Man Being Forced To Pay $30k In Child Support For A Kid That's Not Even His! - If you think this kind of GOB crap can't happen in Mesa County, think again! In this situation, you have a Feminazi judge taking the word of a lying Feminazi process server that the guy refused to accept service, when the record proves the guy was in jail at the time of the fraudulently alleged "service". That Feminazi judge is also a liar: she has the lawful power in equity to prevent manifest gross injustice in situations where the "law is an ass". But the Feminazi system/culture won't correct the situation because local governments want the matching funds from Social Security for illegally collecting child support from so-called "deadbeat dads". As a matter of Feminazi public policy, men have zero rights in family court. Do the research yourself. That's part of why it's so crucial to elect a "constitutional" sheriff who would refuse to enforce an arrogant oath-breaker GOB judge's blatantly unconstitutional order!

State Orders Man to Pay $30k in Child Support or Face Jail, Despite Proof He Is Not Father, by Barry Donegan - Ben Swann

Man Fights $30K Support Order For Child He’s Never Met – DNA Test Showed He’s Not The Father - Inquisitr

Not The Father, But Court Holding Him Responsible For Child Support - CBS Detroit

The Mesa County Patriots support Pat Arotin for Mesa County Sheriff

DA clears two cops in fatal shooting, by Paul Shockley - Daily Sentinel

Denver DA won’t pursue King matter, by Charles Ashby - Daily Sentinel

Mesa County sheriff: 3 on ballot know police work, by Gary Harmon - Daily Sentinel

Division leader new undersheriff for Mesa County, by Paul Shockley - Daily Sentinel - (Note: As an aside, for God knows what reason/s, Paul Shockley blocked me from following him on Twitter. I can still link to his Twitter page because web browsers don't understand "blocking", and if I want to see what he's posting, I still can simply by clicking on his Twitter account URL. And I could take screenshots of his tweets and post them if I saw fit. Having said that, I am not a cyber troll, I have never bothered Paul, never will, and frankly can't even remember ever trying to talk with the guy. That's how unimportant it is to me. And I am happy to apologize for whatever he is miffed about (unless it's the 1st-Amendment-protected CONTENT of my political philosophy). So, the only thing Paul accomplished is blocking me from "retweeting his personal "tweets". Big deal. I can still retweet the stories he retweets from other “tweeps”. He tweets so seldom he wouldn't show up on my timeline even if I were following him. I follow over 4,200 interesting news sources globally. I even follow a few people I consider stupid or downright evil just to keep track of what's going on in the world. (For obvious reasons I don't interact with those.) Heck, a surprising number of nationally famous people and entities follow me, ostensibly because of my consistent retweeting of interesting eclectic news stories from all around the world. And the way Twitter works, I can still go to the links Paul is posting and retweet the destination URLs/stories if I deem them to be of interest. I've never even met Paul Shockley. Maybe his aversion to me is philosophical. Who knows? Who cares? From an intellectual point of view it couldn't be more childish. God bless you Paul, be all you can be, silly boy! That's the Vestigial Dinosaur Media (VDM) for you. Just one more tiny reason why my Twitter timeline is my #1 news source. The VDM is rapidly approaching extinction. Digital technology has bypassed chopping trees to make newspapers. Internet technology has taken the money out of politics by allowing you to send a multi-page message to thousands of people all around the world in a sixtieth of second for a sixth of a cent. To get information out to the public in real time, it is no longer necessary to own a multi-million-dollar building with a multi-million-dollar press and a multi-million-dollar payroll and scores of employees. One pajama-clad blogger in his mother's basement can even the playing field. The VDM serves Power (over the Other) and tries to make a living by "managing the news" and controlling your opinions. I fight against Power (over the Other) and don't try to "manage" the news. Like Matt Drudge, I just "retweet" the news and let you decide whether or not to read it. Of course, I do use #hashtags to target demographics to which my retweets go. Hyperlink technology lets citizen journalists like me use whole books and videos as footnotes to spread information and empower the individual for free. In today's high-tech playing field, the tree-chopping VDM is sort of like a one-legged man in a butt-kicking contest.)

FOOTNOTES:

1. You see, instead of a legitimate trademark infringement problem, I suspect Heather Benjamin's email is the direct result of somebody high in the MCSD food chain not liking the 1st-Amendment-protected CONTENT of my blog article titled, "Why I'm voting for Pat Arotin for Mesa County Sheriff". If Heather Benjamin and the MCSD are acting in good faith, it would be quite easy to stipulate to all the relevant facts -- e.g. "There are no facts in dispute in this case" -- and go into court via a declaratory judgment pursuant to CRS 13-51-101 et seq or 28 USC §2201 (with each party paying its own costs) and ask a judge to tell us whether or not the image in question and accurate context as used on this website constitutes an infringement of intellectual property. In other words, we could very easily and inexpensively find out whose interpretation of the law was correct, Heather's or mine. But by that time, the Lewis v. Arotin contest would be over, the hand-drawn version of the MCSD logo would be made, and the (what in my opinion is) the fraudulently concocted trademark infringement "controversy" would most likely be moot.

Declaratory Judgment Actions: When are they Appropriate?, by Neal F. Weinrich, Esq.

See also, e.g., Toncray v. Dolan, No. 27753, 593 P.2d 956 (1979):
“The primary purpose of the declaratory judgment procedure is to provide a speedy, inexpensive, and readily accessible means of determining actual controversies which depend on the validity or interpretation of some written instrument or law. C.R.C.P. 57(k); Colorado State Board of Optometric Examiners v. Dixon, 165 Colo. 488, 440 P.2d 287 (1968); Inter-Church Temperance Movement v. Baker, 133 Colo. 398, 297 P.2d 273 (1956).”

Under construction . . .