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."

damn right it's a falsehood

"...for offering the operational system Windows..."

Calling windows "operational" HAS to be a crime somewhere.

Heh

Better mod this one down before the editors get "sued" :-)

Misleading title...

Suing and threatening to sue ARE NOT equal!

Re:Misleading title...

>Suing and threatening to sue ARE NOT equal!

Just like announcing a product and actually releasing one.
It's just a vaporware lawsuit. ;-)

Re:Misleading title...

Suing and threatening to sue ARE NOT equal!

MS threatening to sue is equal to them using more FUD to their advantage, hoping mr. Amadeu will shut up and that other MS opponents will decide to lay low. All this for the cost of a few hour's worth of paralegal work.

However, I don't think MS would have any problem with actually sueing mr. Amadeu if he continues to spread his 'lies'... even if their case looks weak. They might desist though, if such a lawsuit would turn into a publicity nightmare: "We cheerfully crush the ones that oppose us!"

Re:Misleading title...

Actually, I think MS will have a large problem suing mr Amadeu. They can afford the lawyers and the best judge money can buy, but they can't afford the press coverage such a lasuit would generate. Many people share the views of mr Amadeu and would probably be on his side, and become even more hostile to Microsoft.

Even if Microsoft manages to buy some of the press, there is a significant risk that some website like groklaw may emerge and start digging up annoying facts on Microsoft and its business practices.

The question is will Microsoft be smart enough to realize this.

Re:Misleading title...

The anti-MS atmosphere in here is unbearable.

So say you. I, on the other hand, bask in its warm glow. ;-)

Re:You sir deserve many, many mod points.

Indeed, now all at once:

Join us now and share the software;

You'll be free, hackers, you'll be free.
x2

Hoarders may get piles of money,
That is true, hackers, that is true.
But they cannot help their neighbors;
That's not good, hackers, that's not good.

When we have enough free software
At our call, hackers, at our call,
We'll throw out those dirty licenses
Ever more, hackers, ever more.

Join us now and share the software;
You'll be free, hackers, you'll be free.
x2

Re:Misleading title...

To be fair, the tactics they are using against employees of their customers that judge their product harshly are also unbearable.

As someone else pointed out, Ballmer said that "Linux is a cancer" quite recently -- this is hardly worse than "Microsoft uses the business plans of drug dealers".

Re:Misleading title...

Note, however, that as Linux does not have the legal status of an individual (which Microsoft does, being an incorporated company), Linux does not benefit from such legal protection as Microsoft does in almost all jurisdictions.

You can say whatever you like about Linux, and there's not a lot anyone can do about it.

Re:Misleading title...

You can say whatever you like about Linux, and there's not a lot anyone can do about it.

Which would be freedom, as in, ummmm, speech.

Go figure.

KFG

Re:Misleading title...

"Linux" is a trademark held by Linus Torvalds. General-purpose slander may not work, but there *are* specialized slander-of-<property> torts.

The GPL may promote a number of freedoms (at the expense of some others), but freedom-of-speech, in this context (that is, speech <I>about</I> the software, rather than speech <I>containing</I> the software), is pretty much orthoganal to it.

MS actually DID sue!

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?"

Re:Misleading title...

Suing and threatening to sue ARE NOT equal!

Well, opening the PDF document I see:

To the Honorable Judge of Law of Law from the Criminal Court of the District of Barueri, State of Sao Paulo.
blah blah blah...
"drug dealer practice" offends the most crucial foundations of the rules typifying the felony of defamation, provided at article 21 of the Federal Statute 525-/67
blah blah blah...
Plaintiff demands that the Defendant
blah blah blah...

I dunno, looks like they are suing to me. Actually the "felony" part makes it look more like a criminal charges than a lawsuit, but I don't know Brazilian law.

They then go on to a list of questions they are demanding that defendant to answer. To summarize, "Please explain how Microsoft is like a drug dealer!" Oh, the answers are gonna be a real treat! Be sure to tune in tomorrow kids! Same bat-time! Same bat-channel!

-

Re:Misleading title...

Is "threatening to sue" not blackmailling and thus illegal? I don't know for sure, but remember it is actually illegal in the US...

I.e. "threatening to fire somebody" is illegal in the EU. You may just do it or leave it, but it is explicit illegal to put it under any condition..

Re:Misleading title...

Threatening to sue? Wouldn't that fall under the FEAR part of "Fear, Uncertainty and Doubt" which is clearly part of the Microsoft M.O.?

Official Sergio Amadeu Answer

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 [cipsga.org.br] is on the site of the CIPSGA, a local NGO commited to free software. There are other related news on CIPSGA site [cipsga.org.br] as well, including a microsoft answer [cipsga.org.br] (I will not loose my time translating that - use the fish [altavista.com]).

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

Right on

and saying "Linux is a cancer" [com.com] is just an objective observation.

Re:Right on

Only in Brazil. The US doesn't look to Brazil for legal precedence very often.

Re:Right on

Balmer saying linux is a cancer is attacking the product, not the owners/developers of the product. This Brazilian saying MS is ussing drug dealer like tactics in selling Windows is directly attacking the owners/developers of the product and not the product itself. That my friend is the difference between marketing and defamation.

Question 6

It looks to me as though the only real question MS can expect a favourable ruling on is question 6: 'Is there any logical connection and/or intention from the Defendant in tipifying (sic) the behavior of the Plaintiff as "drug dealer practice" with the subsequent expression made in the interview of "fear strategy"? '

Pretty much all of the other "questions" have fairly easy-to-respond to answers which will reflect badly on MS business practices, ie: the low-cost-of-entry and high-cost-of-maintenance, buy in haste, repent at leisure type. I don't think there's any relationship between this overall strategy and the FUD one though, they're just 2 distinct dodgy business practices that MS use [grin]

Simon.

Re:Question 6

Sure there is. "The first one is free, then they're hooked." By pushing out desktop's and servers at low prices, it makes it hard to get away from them later.

Re:Question 6

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.

Microsoft tries very hard to get product lock-in at a customer, then extracts more money than the initial purchase appears to be.

GNU offers choice, Microsoft locks its serfs in

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 first one is free"

Considering that windows comes pre-installed in most PCs, many people believe it to be "free", in the no-pay sense. It's like including a stone of crack in the school enrollment fee.

Code-name

I hereby designate Microsoft's lawsuit Operation Footbullet.

P.S.
Maybe Brazil will even fix the broken law.

-

Possibly the WORST response?

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...

Re:Possibly the WORST response?

Really, if someone calls you on your business practices because they're considered nasty... is the best reaction to threaten them?

As SCO have taught us - if they're customers or potential customers, the best business practice is to sue them. I think the logic is that if they're too scared to speak out about you, then that's one step towards buying product from you. isn't it?

1. Sue customers.
2. ???
3. Profit.

Interesting complaint...

I don't have time right now to read a lot of legalese, but from the article post:

Microsoft's complaint claims that this is "an excess in freedom of speech and freedom of thought, by means of the dissemination of information."

Strange that they didn't argue it was untrue. :)

Re:Interesting complaint...

Thats probably because they are doing what any other company would be prepared to do, offer an initial reduction to gain a contract. The problem here are the emotive terms used by Amadeu, which franky are more damaging than helpful. The language he used make him look like a deluded conspiracy theorist rather than somone presenting a rational fact based argument. Rattling on in this manner is ultimately pointless. Amadeu would have been better off presenting considered comments, pointing to OSS success stories and highlighting how there is a better alternative to Microsoft. Tyring to paint Microsoft as 'drug dealers' for engaging in standard business practise just makes it look like he has nothing to back his arguments up and therefore no point.

Re:Interesting complaint...

I think that he was just commenting that Microsoft used the same approach that drug dealers do -- to give away cheap or free product to produce a dependence, and then to take advantage of that dependence.

It's hardly unreasonable or untrue (though it might well be damaging) and would be entirely legal under US law.

So....

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 /. . Bring it own Bill! Vern Seward

In the USA, the Truth (used to) set you free

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.

Text of the complaint

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

who's next?

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 [google.com] 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$

A Clarification

In this inadvertently hilarious google translation [google.com] Microsoft Brazil says they were only asking for an explaination and were misreported. First noted by Alistair Burt [lessig.org] on the Lessig blog [lessig.org].

Clarification == first step in prosecution

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.

No, not at all like drug dealing

Drug dealing goes like this:

- give away a product
- build a dependancy
- begin charging for the product
- introduce new "stronger" product

Q) How is that like anything Microsoft has ever done?
A) Microsoft has never cut their product with corn starch (that we know of).

Re:No, not at all like drug dealing

Q) How is that like anything Microsoft has ever done?
A) Microsoft has never cut their product with corn starch (that we know of).

Corn starch? No.

But there's an awful lot of integration with .NET and DirectX. Does that count?

Stallman will be upset....

....when he reads "The Penguin Advances" PDF linked in this article.

"In order to avoid that someone would appropriate the improvements to make a closed version, Torvalds has created a special use license that forbids the original code or any subsequent modification made upon it to be closed"

Re:Stallman will be upset....

They should rename it "Linus/GPL", since, after all, it's getting the most press coverage from Linux. ;-)

Truth is an absolute defense

In the United States, truth is an absolute defense against charges of slander or libel. This is one of the many immensely logical precepts of our legal system that most of us on Slashdot (including myself, I know) take for granted just as we criticize other aspects of the same system. Let's have a round of applause for the US in this matter, and then go right back to criticism. :)

Cheers,
Kyle

Freedom of speech vs. difamation

I recently commented [slashdot.org] on how the Roman Church has used effectively the over-zealous Brazilian laws on libel and difamation to fight any churches that make inroads on what they consider their home turf. Now it seems that Redmond is taking some clues from Rome.

thought crime?

"an excess in freedom of thought"

That doesn't sound any alarms with anyone else? Are they trying to say this is literally a *thought crime*?

Holy crap.

This is another marketing scheme by Microsoft.

This is another marketing scheme by Microsoft employees to get Microsoft in the news and on Slashdot.

I certainly would never have known that a government official in Brazil compared Microsoft marketing people to "drug-dealers", if it weren't repeated in the quiet privacy of a Slashdot story.

Without a lawsuit, most Brazilians would never have heard what the official said. Now millions of Brazilians will know. What will be their reaction? Consider this. Less than two months after the September 11, 2001 bombing of the World Trade Center, at the costume parties celebrating the Brazilian equivalent of Halloween, many Brazilians came as Osama bin Laden [theglobeandmail.com]. Brazilians and people from other countries [hauntedbay.com] think that the U.S. government is arrogant and out of control. Since 3 movies and 35 books published in the U.S. say this too [futurepower.org], it can be said that the feeling is strong. Microsoft's legal action will be seen as more arrogance from the United States, probably.

My guess is that it is likely that this new move by Microsoft will only help sell Bill Gates Halloween masks. It certainly won't help sell Microsoft products.

Obviously

Truth is not a defense to defamation in Brazil.