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Students, ISP Sue Diebold 345

Quixotic1 writes "The campaign against Diebold that began as electronic civil disobedience took an exciting turn today as the EFF announced that they were filing suit against Diebold for abuse of copyright claims. They will be representing Swarthmore College students and the ISP Online Policy Group, who hosted and linked to copies of controversial internal memos."
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Students, ISP Sue Diebold

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  • by benna ( 614220 ) * <mimenarrator@g m a i l .com> on Monday November 03, 2003 @08:00PM (#7382604) Journal
    ...but you can't kill a revolution. You see this is why i favor revolution to voting. You don't run into these problems.
    • Would you still favor it if you were one of the revolutionaries being killed?
      • Anyone who favors a revolution that only involves people other than themselves being set upon with hardship didn't really favor it to begin with. I would be more suspect of anyone who took that kind of attitude than whatever I was revolting against in the first place.

    • by Dr Caleb ( 121505 ) on Monday November 03, 2003 @08:02PM (#7382636) Homepage Journal
      You see this is why i favor revolution to voting.

      I prefer voting. The revolutionary business doesn't pay well, and the hours suck.

    • by HungWeiLo ( 250320 ) on Monday November 03, 2003 @08:05PM (#7382660)
      I would join the revolution, but I have to mail in my mortgage payment by 5pm today.
    • by quantaman ( 517394 ) on Monday November 03, 2003 @08:17PM (#7382773)
      ...but you can't kill a revolution. You see this is why i favor revolution to voting. You don't run into these problems.

      Yeah, I know it's a joke but I'll bite anyways. The problem with revolutions is that they tend to get a lot of other people killed as well, not just revolutionaries, in fact a lot more often than is desirable the people who win the revolution are not the people generally desired to lead but the ones who are most successful at killing the other side. Always remember
      dreams of perfect society + bloody revolution = bloody dictatorship

      That being said there becomes a point where a political system degrades far enough some kind of revolution may be in the long term interest. If this Diebold problem isn't fixed fast (i.e.before the next US presidential election) than the US may find the foundations of their political system in very serious trouble. No I'm not saying you guys should have a revolution ;) but don't rest until this issue is resolved in a manner that allows democracy to continue.
      • Ah but what about the american revolution? Our dictatorship isn't exactly bloody...yet.
        • Ah but what about the american revolution? Our dictatorship isn't exactly bloody...yet.

          Afraid I'm not super familiar with the american revolution but I think I'd tend to classify it more as a liberation than a revolution. From what I understand British loyalists would of been a minority and probably socially segregated for the most part. Either way the actual battles would of generally been local militants against forgien military in a time when military technology was simple enough that both had an eq
          • From what I understand British loyalists would of been a minority and probably socially segregated for the most part.

            Actually, it was a fairly even split: 1/3 revolutionaries, 1/3 loyalists, 1/3 didn't care.
    • The biggest problem with revolutions is stopping them when they're over. The French Revolution was a great example of this, as was the Russian overthrow of the Tsars.
    • ...since a revolution is a past event. An uprising can be beat down, if and only if it succeeds it'll become a revolution. Unfortunately, you can't skip to that part. Though I understand why certain politicians and a firing squad has a certain appeal...

  • Memos (Score:3, Insightful)

    by Luigi30 ( 656867 ) on Monday November 03, 2003 @08:04PM (#7382644)
    Those memos are very interesting. They show that the Diebold people did not care a bit for the elections.
  • Awesome (Score:5, Interesting)

    by randyest ( 589159 ) on Monday November 03, 2003 @08:06PM (#7382670) Homepage
    Fantastic. I was afraid Diebold might be able to C&D this under the rug, and even took (perhaps useless) precautions of "archiving" the incriminating memos in several places (floppies, p2ps, random servers for which I have pw's . . . ). But, it seems like this will see the light of day. This choice quote is a good summary:

    "Diebold's blanket cease-and-desist notices are a blatant abuse of copyright law," said EFF Staff Attorney Wendy Seltzer. "Publication of the Diebold documents is clear fair use because of their importance to the public debate over the accuracy of electronic voting machines."

    Indeed. Better still:

    "Instead of paying lawyers to threaten its critics, Diebold should invest in creating electronic voting machines that include voter-verified paper ballots and other security protections," said EFF Legal Director Cindy Cohn.

    Or just give up and leave it to someone else. Diebold's credibility is ruined, IMHO. If you don't agree, read those memos flying around. Systemic fraud exists in Diebold's practices. The should be nailed. And not like Enron, really nailed.
  • browsable archive (Score:5, Informative)

    by cRueLio ( 679516 ) <{moc.nsm} {ta} {oileurc}> on Monday November 03, 2003 @08:06PM (#7382673) Homepage Journal
    here are all the memos for your browsing pleasure: []

    hope this helps
  • Shady? (Score:5, Interesting)

    by Scalli0n ( 631648 ) on Monday November 03, 2003 @08:08PM (#7382686) Homepage
    From what I read in the article/press release by the EFF, this is going to be a fairly shaky case;

    "Publication of the Diebold documents is clear fair use because of their importance to the public debate over the accuracy of electronic voting machines."

    How that statement is going to hold up in court would be very interesting; it's debatable how much we the people (in the eyes of the court) should know about the internal workings.

    For example, I'd imagine that's why we don't get to listen in on the Supreme Court's discussions; that's a basis for our democratic process, but we don't watch it, we aren't allowed to (no big fuss about that either).

    Blah, I don't know what I'm talking about.
    Sig & Below []
    • Re:Shady? (Score:5, Insightful)

      by Quixotic1 ( 536000 ) <ivan.quixotic1@com> on Monday November 03, 2003 @08:16PM (#7382763) Homepage Journal
      Here's why the fair use argument will hold up in court:

      - They show intent to break the law (among other things, patching an election system without having the patch certified, not to mention faking demonstrations for elections officials). You can't claim copyright on the plans to rob a bank and then complain when people start investigating.

      - The work is factual. This isn't about pirating The Matrix or Britney Spears.

      - The memos (themselves) are not marketable. Yes, of course, this will affect Diebold's business immensely. But the DMCA's fair use clause only applies to works that themselves have a market.

      - They're fundamental to democracy -- and aren't checked in any other way. The Supreme Court can operate "in secret" (though it's not really all that secret) because they are checked by the Congress. We have no mechanism for impeaching Diebold, especially if they cloud all of their vote-counting procedures under trade secrets or spurious claims of copyright(-infringement).

      I would say, in fact, that this is one of the most solid copyright-contesting cases to come along in a while.


      • by mike(y) ( 155894 ) on Monday November 03, 2003 @09:46PM (#7383286)
        OK, I've been doing a little background reading, and my question is, how are internal memos copyrightable? Isn't a copyright supposed to be issued to a work for sale? Unless someone in the company is selling copies of the internal memos, how is it protected?

        If they wanted to protect the information, couldn't they invoke Trade Secrets? It would seem to me a better path than copyright.

        Of course, couldn't Diebold be liable for sedition? They are trying to usurp the power of the election, something clearly listed and enumerated in the Constitution. Of course, I'm not a lawyer, check out the wording.
      • I would say, in fact, that this is one of the most solid copyright-contesting cases to come along in a while.

        That's as maybe, but it does nothing if it doesn't force Diebold to change the way they develop their voting machines. THAT takes some outrage on the part of the public, as generated by the press, and I have yet to see any of that, save by a few hundred slashdotters.

        Perhaps if someone would mail copies of these materials to every Congressman/woman (Democrats would be more interested in this than R
    • How that statement is going to hold up in court would be very interesting; it's debatable how much we the people (in the eyes of the court) should know about the internal workings.

      It is debatable - perhaps the sooner this debate is held (although in which forum/s, is another matter for debate...) the better it is for the United States as a whole.

    • Re:Shady? (Score:4, Informative)

      by HaeMaker ( 221642 ) on Monday November 03, 2003 @08:19PM (#7382796) Homepage
      Not shaky at all, this is very similar to the petagon papers, except it is against a private company. However, since this involves voting rights, there is overwhelming public interest in the content given that this invloves election fraud. More on the pentagon papers. []
      • Re:Shady? (Score:3, Insightful)

        by kaltkalt ( 620110 )
        the pentagon papers were not copyrighted, as they were gov't documents (which cannot be CR'd). so, it's not similar at all, other than the fact that the public has an interest in the contents of both.
        • Re:Shady? (Score:3, Interesting)

          "they were gov't documents"

          Well now, this does bring up an interesting question. What makes something a governnment document? If it was created solely for the purpose of performing government business, is only meaningfull within the government and plays a vital role in the functioning of that government? Doesn't that make it a govenment document, even if the people who wrote it were technically private/contractors?

          Wouldn't this arguement apply to a lot of [all?] contracted government services? It is a
    • For example, I'd imagine that's why we don't get to listen in on the Supreme Court's discussions; that's a basis for our democratic process, but we don't watch it, we aren't allowed to (no big fuss about that either).

      No, but assume someone did find memos from the Supreme court, that cast doubt over their competence at what they do. Could then the court use copyright law to stop everyone from discussing it? Is it reasonable to expect to be able to "put the cat back in the bag", and pretend it didn't happen
      • by arkanes ( 521690 )
        Actually, the government as an entity isn't legally capable of holding a copyright - works produced by it are, by definition, in the public domain. You'd think this would mean that legal documents are public domain, too, which they are - except that they hire specific companies to transcribe them into usable form, and said companies hold the copyright on the LINE NUMBERING of the resultant documents. Spit.
        • by Shakrai ( 717556 )
          except that they hire specific companies to transcribe them into usable form, and said companies hold the copyright on the LINE NUMBERING of the resultant documents. Spit.

          I recall reading an article on CNN a couple years ago (if anyone has a link, please post -- tried to find it quickly but was unable) where a guy received a nasty C&D letter when he posted a copy of his state laws on the Internet.

          Apparently his state had contracted a publisher to print books with all the state laws. Said publisher cl

    • Re:Shady? (Score:4, Insightful)

      by ewhac ( 5844 ) on Monday November 03, 2003 @08:44PM (#7382975) Homepage Journal

      I regret to say that I must agree with you: This case is going to be a tough one for the EFF.

      The primary problem is that past court cases have already "settled" the question of public interest vs. copyright. Sadly, the courts decided that copyright trumps compelling public interest, and that copyright holders can silence any critics who attempt to use their own words against them in the theater of public debate. These decisions were sought and obtained by the Scientology cult.


      • by bagofbeans ( 567926 ) on Monday November 03, 2003 @09:19PM (#7383146)
        Scientology documents have marketable value; ie they were made available to high level members who pay money to achieve that high a level in the Scientology organisation. It is therefore possible to argue that the Scientology documents lose value as a tool to encourage members to progess within the organisation (and get access to thee documents) if made publicly available.

        So there is a difference between these cases.
    • Blah, I don't know what I'm talking about.

      That is correct. The Supreme Court docket is public, and oral arguments are open to the public. Go here [] for some info. The press usually attends these sessions and reports on them. Also, I don't think that argument has anything to do with why Diebold is abusing copyright law to subvert the US political system.

    • by flug ( 589009 )
      What's that old saying? "Open mouth, shoot self in foot." Something like that.

      Diebold might win this case, but just the fact that it is being brought means that they have lost. All the facts will be aired and Diebold will lose the public trust. It's hard to imagine how a voting machine company could continue to operate under those circumstances.

      But on to the case itself: According to the traditional four points courts consider in determing fair use, I'd say the EFF has a pretty reasonable case. (Thou
  • by Sheetrock ( 152993 ) on Monday November 03, 2003 @08:09PM (#7382689) Homepage Journal
    If you fail to properly secure your website, do you lose copyright interest in your information?

    If I was a (hypothetical) member of the Diebold mailing list, and there were a few e-mails in that bunch that I authored, do I retain copyright on my e-mail? I always assumed I was offering a non-exclusive right to the audience of the list to read/retain/copy/etc., but if that audience increases without my knowledge or consent do I lose the legal right to complain?

    When the media reports on specific items in the memos, do lawyers/judges figure the toothpaste is pretty much out of the tube at this point or is there the possibility of going after reporters?

    • No. No one contests that the people who wrote the emails have copyrights to them; the point of contention is whether spreading them around the internet for the purpose of exposing Diebold's flagrant incompetence constitutes Fair Use of copyrighted material.

      I think.
    • The question isn't whether they have a copyright on these documents; they do.

      The question is whether they can be republished anyway under fair use.


    • No. Because you, more than likely, wrote the emails on company time/equiptment. The copyright would rest with the company as a work for hire.
      • Companies usually make it clear that any work you do for them is theirs, including the creation of intellectual property. I would have thought such a thing was implicit until I worked at a place where some schmuck contractor dropped copyrights all over his code (back in the mid 80s) that he was specifically paid to create for the company.
    • by coyote-san ( 38515 ) on Monday November 03, 2003 @08:23PM (#7382823)
      Of course Diebold retains copyright to its memos.

      But copyright does not trump all other interests, specifically copyright does not prevent the documents from being used in a criminal investigation or civil discovery action. It doesn't even prevent the documents from being used in making arguments to open a criminal investigation or initiate a civil suit.

      IMHO (and as a non-lawyer who has a strong professional interest in civil liberties) what Diebold is doing is legally no different from some sick bastard who videotapes himself drugging and raping women trying to prevent his victims from taking the video to the police. The harm caused by allowing the complaints to be squelched is far greater than the harm caused by forcing disclosure against the wishes of the copyright holder.

      Now if Diebold was sending C&D orders to prevent their inclusion in a general interest book on computer voting systems... then they might have a case. In that case the memos would be used to enrich somebody else, not to call attention to a matter of critical public interest.
    • Those questions aren't really that interesting ;)

      1) No. I can put my copyrighted intellectual property out in plain view for anyone to read and still retain ownership. That's the entire point of copyright. If I had to keep copyrighted material secret, I wouldn't bother to copyright it. Plus, where have you seen that little (c) before?

      2) If you were a member of the mailing list, you retain copyright of the material, but there is probably an implicit grant of use. Other's could probably not republish for

  • by KojakBang ( 721296 ) on Monday November 03, 2003 @08:10PM (#7382698)
    Pending: your vote is now the property of Diebold, Inc. Any attempt on your part to ascertain the disposition of your vote is hereby declared to be in violation of federal law, e.g., the Digital Millenium Copyright Act.

    You have the right not to vote. Any vote you make can be used against you in a court of law. The judge presiding in such a court of law may be appointed by Diebold, Inc., and need not require a jury, but if a jury is summoned, it need not be a jury of your peers.

    By acting to vote you consent to our determining whether your vote is valid, and in the event it is judged not to be valid, you consent to our voiding your vote and further voiding your right to vote in the future.

    You furthermore acknowledge that owing to storage and bandwidth limitations that Diebold, Inc., may experience, your vote may be digitally compressed in a way such that your true intent in casting the vote may be lost. If such an eventuality should occur, your vote may be determined using statistical data derived from any source we deem appropriate or convenient.

    You have the right to protest if your vote is cancelled, altered, or in any way modified as the result of such action on our part, however, you hereby acknowledge that in such an eventuality, Diebold, Inc. may determine that your right to vote is deleterious to democracy as implement by Diebold, Inc., and therefore may be considered to be an overt act against the national security of these United States.

    You have 10 seconds to comply.

    God Bless America.
  • Donate (Score:5, Insightful)

    by blackmonday ( 607916 ) on Monday November 03, 2003 @08:11PM (#7382712) Homepage
    Now's a good time to Donate [] to the EFF. As we all now, small donations can add up to a lot, if people who care pitch in.

    • Yeah, just as soon as they get their D.C. office up and running.

      Seriously, what's the point of being based in SF?

    • Re:Donate - offtopic (Score:3, Interesting)

      by pavon ( 30274 )
      On my way to donate I noticed that they were a 501(c)3 non-profit organization. I thought that political groups were not allowed to be claimed as non-profit? Where exactly is the line drawn?
  • by techt ( 87303 ) on Monday November 03, 2003 @08:13PM (#7382727)
    If you agree with the EFF's decision to stand up to Diebold, then I may suggest making a small donation [] to the EFF to show your support.
    • Become a member -- the more people on their lists, the more respect they demand...

      (Oh, and give them some money at the same time, obviously).

  • by Daniel Dvorkin ( 106857 ) * on Monday November 03, 2003 @08:13PM (#7382728) Homepage Journal
    ... and everyone else should too, if you can possibly afford it. This case is the tipping point for me. I've always admired the EFF's work, but most of it hasn't affected me personally. The voting machine issue affects everyone in the US, and given the importance of the US globally, everyone on Earth. Put your money where your mouth is.
  • by gr8_phk ( 621180 ) on Monday November 03, 2003 @08:18PM (#7382776)
    If you want to cause trouble for them, just demand a recount. When it is found to be impossible, people will notice. For the conspiracy minded, notice that the loser didn't contest the election and demand a recount - This makes sense if you think they are all really on the same side and the public is the enemy. I'm not that cynical yet, but a lot of /. readers are :-)
    • If you want to cause trouble for them, just demand a recount. When it is found to be impossible, people will notice.

      How I wish.

      But they covered that: If you demand a manual recount, they print the database as hardcopy individual ballots, for humans to hand count.

      Of course the count comes out the same. (Unless a human goofs, of course.)

      And of course if the issue was that the database was corrupted, the recount means nothing.
  • by blach ( 25515 ) on Monday November 03, 2003 @08:20PM (#7382799)
    but I still scraped up 10$ and donated to the EFF using PayPal.

    I really encourage everyone to do the same. Lawsuits don't come cheaply.

  • by dcfix ( 65207 ) on Monday November 03, 2003 @08:25PM (#7382839)
    Hire the guys that create the lottery machines. They're incredibly secure, yet easy enough for convience store clerks to operate. Due to performance riders (the software company pays penalties if the system goes down) they're extremely stable. They sure as hell don't slip patches in when no one is looking.

    Seems like a no-brainer to me.
  • This case may not be as strong as it could be, but there's something really good that could come out of it.

    The discovery process. I want to see documents presented in court that are imperative to the EFF's case that are absolutely incriminating to Diebold when it comes to voter fraud. If that stuff gets on the record, the news media is going to have a heyday.
    • You don't even need the discovery process. By filing the suit and introducing the electronic documents into court records, short of having the case sealed, the memos are in the public domain and all this brewhaha goes away. You can't sue someone for linking to public court documents.

      That said, discovery won't prove anything one way or the other besides ownership of the documents. What this case will do is provide clear and unambiguous ammunition for Senate/Congressional inquiries, States Attorneys, etc. I b

  • by NotAnotherReboot ( 262125 ) on Monday November 03, 2003 @08:34PM (#7382908)
    My question is this:
    There seems to be many, many people who are very passionate about this issue. Why can't someone produce a talented team to produce a free, open source alternative to Diebold's system and then pitch it to concerned governments?
    • It's not just a matter of perfecting the software, then installing an RPM. The whole system has to be validated from the ground up. The hardware has to be shown tamper-proof, there has to be a way to verify that the software being run on the system is the same software that was certified. So on and so on.

      Such software would be valuable, but not sufficient in itself.
    • You might want to check out the recent article, 2226&mode=thread&tid=126&tid=172&threshold =0 , about the Aussie electronic voting system. (Also some comments from the designer of the system.)
  • by serutan ( 259622 ) <snoopdoug@ge e k a> on Monday November 03, 2003 @08:37PM (#7382933) Homepage
    Favorite quote - at the bottom:
    "4K Smart cards which had never been previously programmed are being recognized by the Card Manager as manager cards."

    Reminds me of the Win2K/XP feature that makes you an Admin if you insert an install disk.
    • I'm not sure if there is a way to prevent this but if I boot a linux box on a gentoo install cd, I get root access. The obvious precaution is to set the bios to only boot from the harddrive, but many are'nt set up that way. Seems if you have physical access to a computer there's not much to stop you from having root access.
    • Wrong. Windows is designed to allow root floppy access, just like Linux. Diebold machines, I hope, are not designed to give root access to blank cards.
  • NPR (Score:4, Interesting)

    by docmittens ( 529542 ) <docmittens&yahoo,com> on Monday November 03, 2003 @08:56PM (#7383045)

    All Things Considered ran a good overview [] tonight of the Diebold story.

    Cited are critiques of security and even poor code quality, the guts of internal memos now floating around, Diebold's threats against ISPs, and comments from the EFF.

    (Runtime, 4:50; RealPlayer or WMP required)

  • by Anonymous Coward on Monday November 03, 2003 @09:00PM (#7383072)
    Diebold HMA to become software-sourcing hub for Diebold Inc

    Nitya Varadarajan

    Chennai, March 7: Diebold HMA, a joint venture with 50:50 holding between Diebold Inc and HMA Data Systems in Chennai, will be expanding its software development operations for Diebold Inc's operations worldwide ... rest of article []
  • Court Documents (Score:3, Insightful)

    by jefu ( 53450 ) on Monday November 03, 2003 @09:04PM (#7383090) Homepage Journal
    Once the originals of the memos have been presented in court don't they become something that anyone can read as part of the court record? If so at the least the EFF could post the court transcripts and make the memos public that way.
  • by tintruder ( 578375 ) on Monday November 03, 2003 @09:09PM (#7383104)
    If the State of New Hampshire used Diebold, it would be interesting to file suit there.

    The Constitution of NH includes as Article 10:

    [Art.] 10. [Right of Revolution.] Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance ag ainst arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

    This is one of the most clearly delineated passages anywhere in American law pertaining to the ultimate rights and, more importantly, RESPONSIBILITIES of citizens.

  • we'll see microsoft leaked memos

    that would be quite interesting, ya

    Diebold might not hold up in court, but if this were M$, I wonder if the situation would be the same.....
  • Vermont (Score:5, Funny)

    by Junior J. Junior III ( 192702 ) on Monday November 03, 2003 @09:16PM (#7383140) Homepage
    "Live Free or Diebold."
  • by russotto ( 537200 )
    Remember the DirecTV extortion case? The people complaining about the extortion not only got slapped down by the court, the court made them pay DirecTVs legal costs to the tune of $100,000. Same thing will happen here.

    The courts hate people challenging copyright.
  • by Sean Clifford ( 322444 ) on Monday November 03, 2003 @10:36PM (#7383547) Journal
    All I can say is thank God, praise Allah, thumbs-up Yahweh and pass the mashed taters. Confidence in elections is what separates free citizens in a democracy from sheep in a dictatorship. I'm glad the EFF has stepped up to the plate to fight the good fight and will contribute what dollars I can to lend a hand.

    But this is a fight we have to take on locally. Find out what's used in your district. If they use black-box machines with no paper trail (virtually everyone does) then hit 'em with a big ole ream of this []. Send it your city councilmember, call your Congresscritter [] and your Senators [], bitch to your local paper, blog. Do something.

    My favourite excerpts:

    "I need some answers! Our department is being audited by the County. I have been waiting for someone to give me an explanation as to why Precinct 216 gave Al Gore a minus 16022 when it was uploaded. Will someone please explain this so that I have the information to give the auditor instead of standing here "looking dumb"." [source: /msg00068.html ]

    Or how about:

    In response to a question about a presentation in El Paso County, Colorado: "For a demonstration I suggest you fake it. Progam them both so they look the same, and then just do the upload fro [sic] the AV. That is what we did in the last AT/AV demo." [source: /msg00098.html ]

    Or even:

    "Elections are not rocket science. Why is it so hard to get things right! I have never been at any other company that has been so miss [sic] managed." [source: 0/msg00002.html ]

    Makes me feel all warm and gooey inside, but not in that comfortable, sated, internally glowing way. In that queasy, rumbling, internally bleeding, hosting-an-Alien-baby kind of way.

  • Great scheduling (Score:4, Interesting)

    by Animats ( 122034 ) on Tuesday November 04, 2003 @02:48AM (#7384575) Homepage
    The EFF arranged for the hearing on this matter to be held on election day. Tomorrow. With a press conference after the hearing, at the Federal courthouse in San Francisco.

    It's not clear whether they'll win a preliminary injunction, but there's a good chance of it. Either way, it's great PR.

  • Whuh?? (Score:3, Funny)

    by bobdotorg ( 598873 ) on Tuesday November 04, 2003 @04:12AM (#7384813)
    Students sue Diebold?

    What is this? Soviet Russia?

"Go to Heaven for the climate, Hell for the company." -- Mark Twain