Sunday, June 22, 2003
Oh, Is That All? The Deseret News, reporting on the protest against SCO, gives us my favorite quotation since this story first broke:
"SCO spokesman Blake Stowell says his company's lawsuit will not put an end to Linux. 'Linux could still be used; it just wouldn't be free,' Stowell said. "
What it is:
"1. Definition of Trade Libel
"Trade libel is the intentional disparagement of the quality of property. "Unlike classic defamation, [the defamatory statements] are not directed at the plaintiff[base ']s personal reputation, but rather at the goods a plaintiff sells or the character of his or her business, as such." Guess v. Superior Court , 176 Cal.App.3d 473, 479 (1985). The disparagement must result in pecuniary damage to the plaintiff. The disparagement may be in the form of a false statement of fact or opinion. (see 5 Witkin Sum. Cal. Law Torts §573, citing Rest.2d, Torts §§626)."
Law against it (states may have their own in addition):
The Lanham Act makes it illegal:
"Any person who ... in connection with any goods or services ... uses in commerce any ... false or misleading description of fact, which ... in commercial advertising or promotion, misrepresents the nature, characteristics, or qualities ... of his or her or another person's goods, services or commercial activities ... shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act."
A few more resources.
Relief you can request would include an injunction to stop whatever disparagement is occuring, very much what the folks in Germany got.
SCO Protest and Anti-Protest
There was a protest against SCO in Utah on Friday by Linux groups there, who look like a mighty pleasant and creative group of clean-cut folks, as reported on Slashdot and local papers. You can look at pictures of the protest here. You can watch a video of the protest here.
Protesters allege that SCO sent out employees and signs that said terrible things such as "I love software piracy" and "Give Communism a Try" and that they tried to pretend they were part of the protest. If this is true, first of all shame on SCO and second, they are maybe not realizing that trade libel is actionable, and Linux is trademarked.
Here is a picture of the SCO security guard walking past some signs propped up against the wall of the SCO building near a door in which you can see the "I love software piracy sign".
Compare it with these shots one protester took of the signs.
Here is a picture of one group of protesters. Do they look like pirates or commies to you? Or just a nice family that loves Linux enough to join in a show of support for their favorite operating system?
Here is the "I love software piracy sign up close. If you look through the pictures of the protest, here and there you will see the sign, always in the back, always with the face of the person holding it not visible.
Eyewitness Confirms Nasty Signs Came From Inside SCO Building
I have just confirmed in an email interview with a member of the Utah protest group that the nasty signs about piracy and communism seen at the protest against SCO were not brought or carried by anyone in their group. Here is what the email says happened:
"First, I was the first protester there, as we had everybody meet at two other locations, I was there to catch anybody coming early. As soon as the crowd started driving in at 3, this group of people came out of the sco building with their posters. ...After milling around, they planted their posters at the sco entrance (which we were not allowed to approach), went back in the building, then afterwards, to their cars in the sco lot and left."
What kind of smear campaign is this? To paint Linux users as pirates and worse? "Terrorists use Linux" and "communists like Linux", etc.? It's truly defamatory.
The truth is that what happened in Utah on Friday demonstrates questionable ethics not among Linux users but at SCO headquarters. Whose idea was it, I wonder, and will there be an apology? Thanks to the internet, the story is out, and the proof is available for one and all to see. Personally, I am shocked and offended.
I also hope everyone takes a look at all the photographs of the event, because the people that showed up for this event look so appealing and clean-cut and good-natured and pleasant even in their protest that all you have to do is look at them and then at the horrible, libelous signs to know who is on the dark side. Take a look at the photo of the security guard's face as he sculks past the signs and then look at the faces of the protesters and ask yourself: who do you trust? If SCO would do something this dishonest and underhanded, can we trust what they are saying about the code and where it came from? Which reminds me. One of the protesters wore a black tee shirt that said: "Open Source. It's the difference between trust and antitrust."
Let's Hit the Books I have seen several websites offering legal analysis of the SCO case that are based on what I would call "How I Think the Law Ought To Be". Such arguments, moral or ethical arguments, although of value for other purposes, will have no influence on a judge, because that isn't his job. That's for the legislature. His job is to interpret what the law currently is. I apologize I have no time today to put this in any logical order.
So to help you think the way the judge will be thinking, so you can think of something or notice something that could prove helpful, here are some legal resources explaining how the law is currently:
Harvard's Basic Intellectual Property Primers
Includes a section on Contract Law, and Trade Secrets:
-- Contract Law in Cyberspace, by Larry Lessig, David Post, and Eugene Volokh
-- Basic Framework
-- How Do You Accept Offers?
-- Contracts of Adhesion
-- The Terms of the Contract
Copyright Issues and the Internet - A Link Digest
Internet Legal Resource Guide
...their Utah statutes page, with a Utah-only Google search tool
Cornell Law School's Legal Information institute
National Federation of Paralegal Associations' Legal Resources
LawGuru Search Page
Tech Law Journal
Bitlaw on Trademarks
US Patent and Trademark Office
SSRN.Com's Legal articles search page
Cyberspace Law Institute (papers on cyberspace law issues; courses on cyberspace law issues, and interactive forms
Emory Law Library Federal Courts Finder
Washburn University School of Law's WashLaw Web
Harvard Journal of Law and Technology
Boston University School of Law's Journal of Science & Technology Law
Phillips Nizer Internet Library
Yahoo's page of Law Libraries
Cornel Law School's Legal Information Institute's Supreme Court Collection, searchable
The 'Lectric law library Reference Room, with dictionary, lexicon, legal topics
Oyez Oyez Oyez, Northwestern University's The Oyez Project, US Supreme Court Multimedia Database