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Microsoft Sues Brazilian Official for Defamation
The Importance of writes "Larry Lessig is reporting that Microsoft is threatening a defamation lawsuit against Sergio Amadeu, President of the National Institute of Information Technology (ITI) of Brazil, for comments he has made about Microsoft's business practices, "accusing the company of a 'drug-dealer practice' for offering the operational system Windows to some governments and city administration for digital inclusion programs. 'This
is a trojan horse, a form of securing critical mass to continue constraining the country'." Additionally, "To Amadeu, this will be a decisive year to win the 'strategy of fear, uncertainty and doubt', as he classifies the business model of Microsoft." Microsoft's complaint claims that this is "an excess in freedom of speech and freedom of thought, by means of the dissemination of information." Read a translation of the complaint [PDF] and the original article, "The Penguin Advances [PDF]." Lessig notes that this may be defamation in Brazil, but would not be considered defamation in the United States."
Really, if someone calls you on your business practices because they're considered nasty... is the best reaction to threaten them?
To be fair, I don't think MS could win this particular battle - almost any business would be willing to deep discount (or offer for free) the first wave of their product to land a long term contract...
for those who are PDF challenged, please if you are an author and content is worth more than presentation, use text/html if its published on the internet
The Complaint
PINHEIRO NETO LAW FIRM
To the Honorable Judge of Law from the Criminal Court of the District of Barueri, State of
Sao Paulo.
MICROSOFT INFORMATICA LTDA, a company duly incorporated and existing
according to the laws of Brazil, with its headquarters at the City of Sao Paulo, at Avenida das
Nacoes Unidas 12901, Torre Norte, 27 th floor, enrolled under the taxpayers list under
number 60.316.817/ 0001-03, by means of its legal representative (Document number 01) and
undersigned lawyers, respectfully files before this court and against SERGIO AMADEU
DA SILVEIRA, Brazilian citizen, President of the National Institute of Information
Technology (ITI), with headquarters at SCN Quadra 04 Bloco B Pétala D, room 1102,
Edificio Centro Empresarial Varig, CEP 70710-500, Brasilia, DF, the following
DEMAND FOR EXPLANATION
on the grounds of Article 25 of the Federal Statute 5,250 of February 1967 -"The Press
Law", for the reasons and motives explained below:
I-On the exclusive jurisdiction of this Honorable Court to Receive, Process and Decide the
Present Demand for Explanation
1. Under the express provisions of article 42 of the Press Law, which is mandatory, the
jurisdiction to receive, process and decide the Demand for Explanation is that of the place
where the newspaper or periodical, in this case, the place where the magazine Carta Capital,
was printed. Said magazine published the article which the Plaintiff deems as incriminated.
See below:
Article 42 Ð "The place of the violation, for determining Territorial Jurisdiction, will
be that where the newspaper or the periodical was printed, and that of the place where
the studio of the permitted or conceded radio station is located, as well as the main
place of business of the news agency.
Sole Paragraph Ð Press Crimes are subject to the provisions of article 85 of the
Criminal Procedure Code.
2. The precedents of our Courts are uncontroversial in ratifying the provisions of the Especial
Law, according to the following decisions listed in the law reviews: JUTACRIM 68/ 181; 67/
225; 78/ 412; RT 555/ 343; 559/ 379; 556/ 315; 578/ 361; 656/ 269; 603/ 365 etc.
3. According to the administrative information of the abovementioned magazine, it is printed
at Avenida Marcos Penteado Ulhoa Rodrigues, 700, Santana de Parnaiba/ SP, Plural Editora e 1
1 Page 2 3
Grafica, in the district of Barueri.
4. For this reason, this Court must process and decide the present Demand for Explanation.
II -On the Facts
5. On March 17, 2004, the Magazine Carta Capital published under the title "The Penguin
Advances" a jornalistic article about the growing of private companies which would start to
adopt free software, and about the intention of the federal government to launch an
advertising campaign in favor of this type of software.
6. In this jornalistic article, Mr. Sergio Amadeu, Defendant herein, in the exercise of his
public duties of President of the National Institute of Information Technology (ITI), aiming at
disseminating free software among Ministries, State owned companies and governmental
bodies, made aggressive declarations lacking any kind of technical foundation about the use
of the software developed by Microsoft, Plaintiff herein.
III. On the References and Comments made to the Plaintiff company by the Defendant, from
which one can infer Defamation
7. With purposes still to be clarified, the Defendant, at the condition of President of ITI, gave
an intervitew to the magazine Carta Capital, in which he makes reference and imputations of
offensive nature to the Plaintiff, using phrases and expressions from which defamation is
inferred, under the terms of the article 21 of Statute 5.250/ 67, as fo
this reminds me of a tom lehrer song where different countries want 'the bomb'
Now with Microsoft they have waged 'war' with china, the EU, netherlands, Canada, and who's next?
A google news search turns up over 120 people / companies Microsoft has sued.
So who's next, It may even be you! if the RIAA can do it why not our beloved M$
In this inadvertently hilarious google translation Microsoft Brazil says they were only asking for an explaination and were misreported. First noted by Alistair Burt on the Lessig blog.
insecurity asks the wrong question irritation gives the wrong answer
Actually he's doing nothing more but saying what Bill G. has said in the past.
Here, for example:
=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Friends don't let friends enable ecmascript.
IANAL, but when a lawyer in Brazil wants to prosecute someone for libel, s/h/it must ask first for an "explanation". The accused is then given a chance to say "I was misunderstood, sorry about that", before being actually found guilty and sent to jail. There are different levels of libel and difamation. "Calúnia" is saying something that can be proved to be false about someone. "Injúria" is saying something that may be true, but is derogatory in some way. For instance, if I said "Slashdot editors don't read their own front page", this is patently true, but is offensive, so it would be a felony in Brazil.
Maybe you forget that Marcelo Tosatti, a Brazilian, is the maintainer of the Linux 2.4 kernel? Linus sure seems to trust his code.
To ask for a clarification formally in a court of justice, like MS did, IS the first step in a libel lawsuit in Brazil. That's the equivalent of a judge in the USA asking the defendant "you are being acused on these charges, how do you plead?"
"Sergio Amadeu, himself, have posted a short note about Microsoft's move. It's in portuguese, of course, but here is the translation into english:
'In special response to national and international enquiries from the press, that have been supportive with the brazilian government in this unprecedented moment in which the president of an important public institution in this country suffers personally the action of those interested in keeping an hegemonic model, I come forward, after listening to my lawyers and federal solicitors, to say that the judicial provocation imposed against me is, by its own, so unusual and improper that it does not deserve any answer.
In the other hand, I'd like to register that the purchase of software that preserves the values of openness and freedom is, for the brazilian government, a subject unavoidably connected to the democratic principle. And for it have been a long and painful path to reach our current democratic developmental stage in this country, we will not walk out our fight.
If democracy is a value full of ideology, it will never be an insignificant value. If democracy is a dream, it's the one dream this country will never wake up from.
The future is free.
Thanks you all for the support. '
But the FSFE (Free Software Foundation Europe) claim that the BSA (Business software Alliance) (aka Microsoft's hitmen) asked [item 6] the FSFE for help to combat the Italian governments latest crazily stringent proposed copyright laws (which require formal permission from the government before copying anything in digital form even if one has a "copyright" license or even if one holds the "copyright"--from what I can tell).
Joe Llywelyn Griffith Blakesley
[This post is in the public domain (copyright-free) unless otherwise stated]
They clearly sued the wrong person over publishing an article comparing their business practices to drug dealers since after all, we have this prior statement published in the July 20th 1998 edition of Fortune "Although about three million computers get sold every year in China, people don't pay for the software. Someday they will, though. They'll get sort of addicted, and then we'll someday figure out how to collect sometime in the next decade." from Mr. Gates.
Its not a question of if hes right or wrong its a question of getting sued (ie bankrupted) if you speak out at all.
"It's so convenient to have a system where everyone is a criminal" - A. Hitler
Neither country has a "right" to free speech (except for politicians protected by parliamentry privilige, who really don't want to share that privilige with their critics).
I wouldn't say that there is no right to free speech altogether - generally, in democratic countries outside the US, generally you can advocate any kind of political ideas, but there are limitations for factual claims about concrete people and companies. (In the US, you can sue for damage compensation afterwards, as well, but in many countries, you can ban claims to stop the damage).
I think it is difficult to say what is better, both kinds of regulations have their advantages and disadvantages. Of course, any limitation of freedom of speech is regrettable, but on the other hand, it can also be important to have the possibility to stop unfair practises that consist in spreading unsubstanciated claims to harm competitors. A good example is SCO: In Germany, they are not allowed to spread allegations about the alleged copyright and licence infringement of Linux because they could not show anything to substanciate them, they had to remove these claims from their German website.
There's Yet Another PetitionOnline for this story.
Yes, but the thing is -- once you use GNU/Linux, you don't *want* to use other stuff -- but that's okay, because you can download all the GNU/Linux you want for free and will always be able to do so.
You are absolutely right, and here is the key difference between GNU and Microsoft:
With Microsoft, you have customer lock-in that actively discourages and often prevents a customer from chosing another system they would otherwise prefer. Evidence of this abounds in virtually every medium one might consider, from the opinion pages of Chicago newspapers to court filings in assorted lawsuits against Microsoft brought by companies and governments large and small, to the pages of the World Wide Web. Customer lock-in is real, destructive, and most importantly to a democratic government: non-democratic (ie choice is removed).
GNU/Linux, FreeBSD, and other free software do not lock anyone in. Indeed, many free applications have been ported to Microsoft's inferior platform because people wanted to run the software and needed to keep running windows (quite probably due to customer lock-in).
The difference? With GNU/Linux you have the choice, even the choice to chose bondage to a large American corporate entity (read: run Windows). With Microsoft, you have no such choice: you are locked quite firmly in regardless of your other desires...with the only possible way out to dump Microsoft products completely.
The wisdom of such a choice is incontravertable, whether one is considering software quality, security, stability, or freedom, but that doesn't mean one has the ability to make such a choice, of one's data is already beholden to the behemoth. Even more so, now that Microsoft appears to be taking the $CO path more directly these days ("no customer, and especially no ex-customer, is safe").
The Future of Human Evolution: Autonomy
If I say that Microsoft's is akin to those of the Maifa, that there licensing schemes are more like the fifdom taxation scheme of Ole England, and that their very existence threatens innovation and the advancement of technology, would I get sued too? I guess I'd have to say those things in a public forum, and be in the position to influence thebuing decisions on thousands, if not millions of people. Kinda like /.
If you are in the United States you are safe (not from being sued, but from losing). Truth is an absolute defense, regardless of how damaging it may be. And every word you wrote is true.
Caveate: the truth used to set you free, pre-Bush/Chaney/Rumsfeld/Rice. These days, all bets are off, domestic or foreign.
The Future of Human Evolution: Autonomy
Hi,
I had translated the official answer of Sergio Amadeu to the press regarding this issue. While there is no proccess, Amadeu received an offical judicial notification asking for an apologize in 48 hours. The original note is on the site of the CIPSGA, a local NGO commited to free software. There are other related news on CIPSGA site as well, including a microsoft answer (I will not loose my time translating that - use the fish).
Notice to the Press- Sérgio Amadeu
In attention to the national and international press demand, which supports the brazillian government in this moment without precedent in History, in which the director of an important puclic institution in this country sufferes personally the action of those interested in keeping an hegemonic model, write, after hearing my lawyers, state that the justice act enacted against me is, in itself, so unexpected and outrageous, that it doesn't deserve an answer.
On the other hand, I'd like to state that the contraction of software preserving the values of freedom and opennes fis, for the Brazilan Governent, a question linked to the very core of the democratic principles. And why a long and painfull path has passed for we to get at the current status of democraticy on this Country, we shall stand firm in our fight.
If democracy is a value filled with ideologies, it is never an insgnificant factor. If democracy is a dream, it is a dream from which this Country will nerver wake again.
The future is free.
SÉRGIO AMADEU DA SILVEIRA
Diretor-Presidente
Instituto Nacional de Tecnologia da Informação
-><- no
- It gave in the Land: Microsoft clarifies asked for of explanation the director of the ITI
Now we need to hear what Amadeu has to say.Editoria: Governments
18/Jun/2004 - 09:44
The Microsoft emitted a note today where he clarifies the episode of the explanation order that the company made Sergio Amadeu of the Silveira, president of the National Institute of Technology of Information (ITI). In interview to the magazine Capital Letter in the March month, Amadeu said that the company used "tactics of the gratuitous dealers" when supplying softwares programs of digital inclusion, what it would be a way to accustom the users.
The explanation order generated rumors of that the Microsoft would be processing managing of the ITI. It reads to follow the complete one of the note of the Microsoft, signed for Rinaldo Zangirolami, General Director of Legal and Corporative Subjects of the Microsoft Brazil:
Note of clarification
"we are not processing nobody, and the order of explanations is not related to a personal question.
The Microsoft continues engaged with a respectful and opened dialogue with the government, customers and the industry to address the necessities of the Brazilian economy and the community.
The Microsoft is present in the country has 14 years more than. Our commitment with the country is of long stated period. By means of ours 10,000 partners, 45,000 jobs are generated in Brazil and more than R$ 1 billion is collected in taxes annually.
Rinaldo General Managing Zangirolami of Legal and Corporative Subjects Microsoft Brazil"
Source: Land Computer science
You can say whatever you like about Linux, and there's not a lot anyone can do about it.
Actually, that's not true. Because a lot of companies sell Linux, and rely on its good reputation to make sales, you can be sued for Trade Libel (Lanham Act) if you make blatantly false statements about Linux in an attempt to drive potential customers away. Case(s) in point: Red Hat v The SCO Group, and the IBM countersuit.
In fact, the biggest difference is that if you badmouth MSWindows, only MS really has standing to sue. If you badmouth Linux, you could potentially face thousands of suits from thousands of companies and individuals.
"...for offering the operational system Windows..."
Calling windows "operational" HAS to be a crime somewhere.
Although I know it's a joke, I'd like to note that this is obviously a translation issue, since in Brazilian Portuguese you call an OS "Sistema Operacional", which translates literally as "operational system".
I'm not sure about European Portuguese, but I think they say "Sistema Operativo" (literally, "operative system").
tmegapscm
"Finding a non-Adobe Acrobat reader that is not itself the result of a violation of an Adobe IP claim [...] is a bit problematic."
No it's not! Adobe has deliberately made PDF a public format; they freely distribute the specs and encourage others to support the format. Finding (e.g.) xpdf is not a bit problematic - there's barely a Linux vendor out there who doesn't ship it. Even The Open Group (the guys who own the UNIX(tm) trademark) have an xpdf page. Getting it to run on your platform might be problematic if you don't run a Unixlike system, but that says more about that platform than about the format.
Gustavo.