June 18, 2004  ·  Lessig

This comes to me from a reliable source, though I would very much like it if it were mistaken.

Apparently Microsoft has taken the first steps to filing a criminal defamation action against a Brazilian government official who was quoted criticizing Microsoft in a magazine article. Sergio Amadeu, head of the agency responsible for spreading free software within the Brazilian government, is reported to have accused “the company of a ‘drug-dealer practice’ for offering the operational system Windows to some governments and cities for digital inclusion programs. ‘This is a trojan horse, a form of securing critical mass to continue constraining the country’.”

He’s also quoted characterizing Microsoft’s strategy as a “strategy of fear, uncertainty and doubt.”

These statements have apparently earned Mr. Amadeu the right to defend himself in a defamation action. Microsoft characterizes Amadeu’s statements as “beyond being absurd and criminal” and as evincing an “excess in freedom of speech and freedom of thought.” “Freedom of speech and freedom of thought” is, Microsoft apparently believes, properly prosecuted in Brazil, and so it has brought this first step to prosecute the “felony of defamation” evinced by Amadeu’s words.

Such words could not rise to the level of defamation in the United States; I would be surprised if they were defamation in any sane state. But whether they are defamatory in Brazil or not, it is wrong for this company to use the law to silence a critic. In the American tradition, we meet bad speech with more speech, not with more lawyers. We should all teach Microsoft something of our tradition, by meeting its bad speech — a defamation action against a critic — with lots more speech criticizing it.

  • http://aphid.org aph

    mMmmm.. thoughtcrime. ms shows her true colors.

  • http://www.livejournal.com/users/weev weev

    These actions are inexcusable. There should be severe disincentives for US companies that disrespect the inalienable right of free speech and press overseas.

  • http://www.ashleyit.com brent

    I guess I never thought of a corporation as a defamable entity. Is that the case in most legal systems?

  • Alan Griffith+

    I’m running linux!

  • http://ihaveatheory.blogspot.com Ryan

    Can we really expect much more than this from most companies? They’re only out for a few more dollars, and to them, destroying human rights is just collateral damage that won’t hurt them in the long run.

  • michael

    do “defamation” suits in brazil require that the claim is false? but also, do we know how often this kind of thing happens in brazil? i would guess that the brazilians running MS in brazil are just suppressing criticism in a manner that is common to other corporate and political interests there. I’m not condoning what they’ve done, but i’ve been doing research in Poland on info access/free speech and find similar cases of this. It’s not that they don’t want to fight for free speech, it just costs alot of money. So, if MS keeps up the norm and files suit, other critics are deterred, not by the threat of censorship, but for the possibility of having to pay huge legal fees every time they write something critical.

  • http://www.for-the-people.org/ Alastair Burt

    According to this article (in Portuguese), there has been a misunderstanding. An official note from Microsoft states that the firms request for a explanation from Sergio Amadeu has been wrongly reported as the initiation of court proceedings.

  • http://www.webmink.net/minkblog.htm Simon Phipps

    Misunderstanding or not, there must be folk in Brazil who would love to see Sergio Amadeu discredited. Hearing him speak on the panel in which Lawrence participated at FISL and at another panel it was celar to me that he is a passionate advocate of the use of F/OSS by the Brazilian government and an excellent public speaker to boot. Even if this legal engagement turns out to be less than a full-frontal attack I feel sure we’ll see the use of legal tricks to silence him. Watch for the name, he’s hot.

  • http://www.for-the-people.org/ Alastair Burt

    Oops. Here is the link for my comment above: http://informatica.terra.com.br/interna/0,,OI327393-EI553,00.html, also here:
    http://www.softwarelivre.org/news/2555

  • Chris

    Go for it MS. You sue Mr Amadeu and maybe win your action over him.
    Whatever the outcome Sergio will be respected for speaking his mind and MS will yet again appear as bullys.

    In the short and long term, this action will just prove to any allies you have, that MS is too dominant and its time to move away from all your products.

  • http://karl.jorgensen.com Karl Jorgensen

    I guess that what really got up microsoft’s nose is the “drug-dealer” analogy. However correct this is (I believe it is!), microsoft knows quite well that this has to be quashed as soon as possible, lest others start realising the same thing…
    After all, giving away free software to schools that *tie in* the school to the supplier in the future? Free software is OK, but the tie-in is not….

  • macewan

    microsoft has gotten to big for their britches

  • Anonymous

    In other news: Brazilian Drug Lords sue Gvt. Official for defamation.

    “We realise our clients business is perhaps not the most popular with various official agencies, however likening our clients practises to those of Microsoft is outrageous and humiliating” attourneys for the complaining party says.

  • Joseph Pietro Riolo

    Don’t make a big assumption that only “bad” guys use the
    defamation law to silence the critics. What if Microsoft
    defames Richard Stallman and Linus Torvalds to the point
    that the support for open source software in Brazil
    totally disappears? Will they just accept the defeat?
    Will they resist using Brazil’s defamation law to fight
    back?

    Accept the fact that there is a law and it can be used
    by anyone, both “good” and “bad” guys.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • http://purl.org/net/jb Joe Ll. G. Blakesley

    Even if one can still defame a company in Brazil if your statements are true, what about the fact that the company’s founder has made similar statements.

    Quote from the linked article:

    [Bill] Gates shed some light on his own hard-nosed business philosophy. “Although about 3 million computers get sold every year in China, but people don’t pay for the software,” he said. “Someday they will, though. As long as they are going to steal it, we want them to steal ours. They’ll get sort of addicted, and then we’ll somehow figure out how to collect sometime in the next decade.”

  • http://www.gnu.org/software/bayonne David Sugar

    Senior Silviera’s comments were published in Carta Capital magazine. I read a translation of this, and I found said was even less remarkable than what others have said in both print and in public in comparing Microsoft’s business practices to that of drug dealers.

    But, further, we have this amusing quote from Mr. Gates published in Fortune Magazine July 20th, 1998; “Although about three million computers get sold every year in China, people don’t pay for the software. Someday they will, though. And as long as they’re going to steal it, we want them to steal ours. They’ll get sort of addicted, and then we’ll somehow figure out how to collect sometime in the next decade.” Perhaps they should sue him next :).

    There is also an actual complaint filed by Microsoft in Sao Paulo, in regard to this in a court in Brasil. I have no idea how Brasil defines defemation, but I have noticed that Microsoft is quite willing as demonstrated in the Linspire case to use venues where laws are more pliable, and so I am curious how defamation law in Brasil compares to that in the U.S., as this likely explains why they choose to this now and in this case rather than in the plenty of other times and places that others have compared their business practices to that of drug dealers in the past.

  • Jose da Silva

    “I have no idea how Brasil defines defemation”

    This is NOT a defemation in Brazil !!

    We wait a court decision !

  • Jose da Silva

    Sorry for “google translation” , but :

    http://www.estadao.com.br/rss/tecnologia/2004/jun/16/7.htm
    http://translate.google.com/translate?u=http%3A%2F%2Fwww.estadao.com.br
    %2Frss%2Ftecnologia%2F2004%2Fjun
    %2F16%2F7.htm&langpair=pt%7Cen&hl=pt-BR&ie=
    UTF-8&ie=UTF-8&oe=UTF-8&prev=%2Flanguage_tools

    Wednesday, 16 of June of 2004 – 04h15

    Microsoft leads to the defending Justice of free software in the government

    S�o Paulo – the option of the federal government for free software – as the operational system Linux – he starts to have unfoldings in Justice. The Microsoft, greater company of software of the world, was to the courts to demand explanations of Sergio Amadeu of the Silveira, president of the National Institute of Technology of Informa��o (ITI), that he belongs to the Civil House. It is the main defender, in the government, of the free software, that can be modified by the user, it does not demand license payment and it represents the biggest threat to the position of the Microsoft.

    Silveira has until this Wednesday to answer to the questions made in the “order of explanations” presented by the Microsoft, having as base the Law of publications, in 3.� Judicial Pole of Barueri (SP). In interview to the CartaCapital magazine , in March, the president of the ITI said that the Microsoft adopts “practical of dealer” for gratis offering to software the governments for the digital inclusion. It also affirmed that the company uses “the strategy of the fear, the uncertainty and the doubt”.

    The company does not question in the courts the magazine or journalist Marineide Marques, that signs the substance. “It is an attempt to intimidate the government”, believes Marcelo White, articulador D’Elia of the Project Free Software Brazil. “a company Is unacceptable to confront one public politics.” For Beatriz Tibiri��, that succeeded Silveira in the Coordenadoria of the Electronic Government of the City hall of S�o Paulo, the success of free software in the municipal program would be an explanation. “We prove that the future is free”, says Beatriz. “Perhaps this is the true reason.”

    Silveira was notified in this ter�a of that it has 48h to present answers. The president of the ITI received messages from solidarity of some parts of the world. “Of Extremadura, we express the our most absolute one repulses for these acts of intimidation that is suffering the movement from free software in Brazil”, it writes Jesus Rubio, who leads one of the most famous projects of free software of the world, in Spain. “Let us flood the box of email of the president of the Microsoft in Brazil”, suggests message of Daniel Saravia, the organization Free Software Argentina.

    The Microsoft said that he is not about a process. “we do not want to intimidate nobody”, affirmed the director of Legal Subjects, Rinaldo Zangirolami. “it is not retaliation”. In the document directed to Justice, the Microsoft classified of “absurd and delictual” the declarations of Silveira, that would correspond the “delict of defamation”. The answers of the president of the ITI can serve of base to a process, although the Microsoft to prefer not to argue which will be the next steps.

    Renato Cross

  • Anonymous

    So Microsoft thinks that it’s the new world-wide police force… LMAO!! They are so gonna get owned.

  • QrazyQat

    Hey guys, the MS’s homeland, the USA, is a country where you can be sued for talking trash about foodstuffs — MS obviously figures that makes sense, so why not join the party?

  • stumbles

    By Gates own admission, their tactics are like a drug dealers.

    “Gates shed some light on his own hard-nosed business philosophy. “Although about 3 million computers get sold every year in China, but people don’t pay for the software,” he said. “Someday they will, though. As long as they are going to steal it, we want them to steal ours. They’ll get sort of addicted, and then we’ll somehow figure out how to collect sometime in the next decade.

    Granted it deals with China but then….. when has addictions been limited by geography.

    http://news.com.com/2100-1023-212942.html?legacy=cnet

  • Doug Bostrom

    I wonder when we’ll outgrow our overweening fondness for private enterprises that inevitably end up striving to become de facto simulacra of failed communist states? The centrally planned economy, totalitarianism, inevitable failure and disgrace– all the features are there, only the label is different.

  • Carla

    I am pleased as punch that Mr. Lessig and the FSF are on the job. These is scary times for civil rights.

    I do have one request- how about not using a fixed-width page? Web pages should be re-resizable by the user. This page runs way off the right margin, which makes it rather difficult to read. I tested it in Galeon, Konqueror, and Mozilla- all the same, the page is much too wide.

    Thanks!

  • ajs318

    I don’t know about Brasil; but under UK law at least, it is a defence to say that the comparison was a fair one; and also, a true statement cannot be considered defamatory. And the comparison clearly is fair, by Microsoft’s own admission.

    So if the law in Brasil is anything like in Britain, Microsoft would have no case.

  • Anonymous

    Astounding how such news breaks just in time for the June 19th anniversary of a historic event this very same day when another country in a nearby place in Latin America tried to show how imperialism often backfires (even quite literally) on its proponents.

    No one would wish for Brazilian politicians to resort to firing squads (where an army of penguins -and lawyers- will do), but this strange coincidence should serve as a surefire warning for emperors of any kind not to defy their companies’ destiny by forcing products and business models down someone’s throat where entire countries reject them:

    “You’re not welcome here” is a message loud and clear…

  • http://www.mcspotlight.org/case/ joe

    Go ahead and sue us Bill.

    But perhaps you might want to check out what happened to McDonalds when they sued some activists who ‘slandered’ them.
    (http://www.mcspotlight.org/case/)

    The documents recovered in discovery and the testimony obtained under oath were fascinating in that case.

    What we could get from Microsoft, under oath, should make even the Halloween documents (http://www.opensource.org/halloween/) look pale.

    and Lawrence, for Gods sake fix the page width thing.

  • lessig

    hey, I’d love a pointer to the problem with page width. I’ve tried my page with 4 browsers, and no width problem.

  • William Richmond

    http://www.lessig.org/blog/archives/001983.shtml shows
    up with lines that are entirely too long to read on my
    Netscape 4.8 for Linux, Netscape 6.3 for Linux, and Mozilla
    1.2.1 for Linux. I’m filling out this form from lynx, which
    made the information legible.
    Anyway the information and quotes are interesting and
    informative.

  • Mike Stafford

    (Width Issue: No surprise given comment above, but Safari 1.2.2 under Mac OS 10.3.4 has the width issue as well.)

    IMHO, MS doesn’t do scared; it isn’t in their lexicon. So I doubt tactics like this one represent a fear response as some have suggested. However, their response to uncertainty is invariably AGRESSION, and worldwide the FOSS situation is certainly creating some uncertainty. So this type of ridiculous legal action is just one instance of an overall approach I expect we’ll be seeing a lot of: Thuggery with Intent To Dominate By Silencing, Co-Opting, Or Purchasing Dissenting voices.

    It’s always worked for them before, why should they change stripes now?

  • http://scoble.weblogs.com Robert Scoble

    I work for Microsoft and this decision is wrong. I’ve gone on the record on my blog saying so here: http://radio.weblogs.com/0001011/2004/06/19.html#a7816

    Not everyone at Microsoft agrees with these tactics.

    Going after our critics legally is wrong. Period.

    We can compete on the strength (or weakness) of our products, not in the courtroom. At least not for this reason (and I’m assuming this reporting is accurate).

  • Crow

    Also “from a reliable source” drug-dealers want to sue Sergio Amadeu :-D

  • Anonymous

    Sun Microsystems has some affordable/open standard solutions.

    Alternative to MS Office:
    http://wwws.sun.com/software/star/staroffice/index.html

    Alternative to MS Windows:
    http://wwws.sun.com/software/javadesktopsystem/index.html

  • Diego Zenizo

    Many years ago, I had a brief discussion with an official at Autodesk, makers of the Computer Aided Design software Autocad. At that time tehre was a struggle for the CAD market between Intergraph’s MicroStation (now owned by Bentley Systems) and Autodek’s Autocad. MicroStation was (and still is) much powerful and more productive, but the strategy Autodesk implemented helped the grab the XCAD market.
    This person told me that their marketing strategy they were following was to eliminate the copy protection on the software packages sold and/or donated to the universities, so every student that wanted could make a copy of the software. In this way, they will get “hooked” on Autocad, even if it wasn’t the best product, but after a period of time, revert to the copy protection (using a hardware device, which made it harder to twart off).
    This strategy allowed them to gain “addicts” to the software, and was very successful; with time, many buisnesses and users depended on Autocad, so they were forced to buy legal licences when Autodesk no longer “allowed” them to use it for free.
    If somebody was caugth using an illegal licence, all the force of the law rain on him.
    No wonder Autodesk is one of the driving forces behind BSA, the Business Software Alliance, a private group in charge of prosecuting software piracy.
    So simple. Give them the drug, make them addicts, then start squizing money.

  • Matthew Saroff

    IIRC, a number of countries, Brazil might be one of them, have criminal defamation statutes.

    These were ruled unconstitutional a long time ago in the US, though some kid was actually arrested by the cops in one of the big square states about a year or so ago under one of these laws.

    It was dropped as soon as the ACLU called.

  • http://www.marcel.leal.com Marcel Leal

    The problem with Microsoft is that it will lose a US$1 million licences contract with the brazilian govt.
    Then, every school in Brazil will have computers running Linux, Open Office and Mozilla (we’re talking about 300,000 computers). These children will surely use Linux at home when they can, beginning a new generation of no-Windows users.
    Bank of Brazil is already migrating it’s 9,000 servers and 30,000 desktops to Linux. Other govt agencies and departments will follow.
    So, MS’s problem is not with Sergio Amadeu, but with all the losses they see in the near future.

  • http://www.marcel.leal.com Marcel Leal

    Sorry, I made a mistake in my previous post. It’s 3,000,000 computers in the schools.

  • Leonardo Couto Chueri

    the Constitution law of Brasil protects anyone�s freedom to the thought and speech. But it also protects any person (human) or enterprise (legal person) the right to not be defamated or offended. Both are rights and obligations to every brazilian.

    “The one�s freedom finishs where starts the other�s freedom.” was said many years ago by Rui Barbosa.

    Someone cannot speak UNTRUE statements, so without evidences, against others reputation. It�s as an important individual right as is the right to speech.

    Sergio Amadeu made statements about Microsoft and its business practices using his freedom of speech. He said nothing that could be understood as defamation or offense by brazilian law. Also, he said nothing that Bill Gates had not said by himself about Microsoft.

    Microsoft has the right to goes the court. But this does not means it has a real case against Sergio Amadeu. It�s just a desperated action.

  • Max Lybbert

    Unfortunately I’m a little late in my comments. However, I find it interesting that the action is based on a 1967 law. That is interesting because Brazil was a military dictatorship at the time. The current constitution was signed in 1989. Unfortunately, the current constitution has over 300 rights listed in it, and as such is considered more of a laundry list of good ideas than a constitution.

    Laws pre-dating the constitution are still valid, but must be interpreted under a different legal system than what was in place when they were written. For instance, Brazil’s current constitution protects the rights of expression, but the complaint says that the comments were abuses of the freedoms of expression and thought.

    However, even if the action is nothing more than a subpoena, it is definitely a nuisance action, meant mainly to intimidate. Anybody in a position to raise a stink (eg. bloggers) needs to. Microsoft backed down from Mike Rowe (i.e. mikerowesoft.com), and I think that comparisons to the old “US vs the freedom to innovate” part of http://www.microsoft.com and this (“Microsoft vs freedom of thought”) would shut the company up.

  • Anonymous

    This isn’t the first time – and it’s happened in the US. An internet entrepreneur was hassled by MS into discontinuing the sale of T-shirts with a wonderfully imaginative “Bill Gates as Borg” graphic. Satire isn’t permitted in MS Land either.

  • Alex

    While I sympathize with the Microsoft employee who worries that this may be a mistake, I disagree with him. I think it’s crucial for Microsoft to defend itself against these kinds of defamatory charges, especially in Brazil. You can call Microsoft a monopoly, but a government official making the charge that they are somehow morally equivalent to a gang of drug dealers (conjuring up images of, perhaps, Britain, Opium and China) is the height of irresponsibility, and the guy should be brought to heel for it.

    You know, America opens its markets to a variety of cheap products from foreign countries that occasionally displace our workers. Yet nobody in this forum is willing to call any of the people running those foreign companies drug dealers. Where is the tool business in the United States? The camera business? The garment business? Are those in the rest of the world to whom we allow access to our markets and our store shelves as bad as this Brazilian claims Microsoft is? For providing operating systems to schools in Brazil?

    The Microsoft employee has a point, though. It’s hard to be generous and defensive at the same time. Unfortunately, a lot of the people here on the Lessig blog want Microsoft to be neither – they want them to be gone.

  • http://forfreedomcentury.blogspot.com Jimm

    This is exactly why we need to reexamine corporate charters in America. No company ought to be breaking the laws of the nation who charter them when operating abroad, and they certainly should not be suing and intimidating people under rules and laws that would not apply at home.

  • itstr
  • Anonymous

    Alex
    Micro$oft’s usual way of doing business is worse than the drug dealer. I think the drug dealer association (if any) should brought up defamation charge for comparing them to “money monger micro$oft”!!
    Micro$oft is way low as a business corporation!

  • Teo

    Preposterous!

    It seems every time I reconcile myself to using their products (we are pretty strictly a Windows shop at work and I don’t have a choice), Microsoft does something like this! Along with detestable software, these unconscionable actions are becoming synonymous with the Microsoft name! Ironically, in taking action against Amadeu, Microsoft insured that his words reached a larger audience while further anathematizing themselves.

    American corporate greed doesn’t surprise me anymore. However, I would expect a basic understanding of public relations to suffice in a case like this, where morals are lacking. Even if MS wins it’ll be a Pyrrhic victory, costing them more through bad publicity, increased criticism, and as someone has already pointed out, increased migration to other software.

    I do expect better than this. (at least from any other company)! We should particularly expect it from businesses based in wealthy and free societies.

  • http://www.dan.info/ Dan

    Didn’t the government of Brazil sue (or threaten to sue) the producers of The Simpsons for “defamation” because they had an episode that made fun of that country when the Simpson family visited it (as they did, similarly, with Australia, England, New York City, and other places in other episodes)?

  • Anonymous

    The following memorandum has just been written to the
    chairman of the Federal Communications Commission. Or we
    can just pretend that it exists, as in the case of reasons for various
    other governmental actions in last three years.

    To: Chairman, FCC
    From: Legal and Cultural Advisor to Chairman, FCC
    Re: Alleged inappropriate remarks on public property (United States Senate)

    Statement of question:
    You have asked whether the Vice President is subject to fine by the FCC
    for uttering an expletive on the Senate floor. You have also asked “how
    the h-e-doubletoothpicks” you can explain the difference between Howard
    Stern and the Honorable Richard Cheney, if asked.
    Summary of Answer:
    The Vice President is a fine man, indeed, and his hair is much, much
    shorter in length and smaller in volume than Mr. Stern’s.
    Discussion
    It is important to note certain key facts that naturally have been left
    out of the left-wing media reports of the Vice
    President’s alleged sexual innuendo, and that also modify the Vice President’s alleged “admission” of such remark.
    First, the Vice President realized that Senator Leahy was about to
    unleash a massive and scurrilous attack on the Vice President’s
    patriotism, and therefore the Vice President’s suggestion was in the
    nature of pre-emptive strike. The success of his merely verbal assault
    justified its use.
    Second, at no time did the Vice President take off his bustier, nor did
    Senator Leahy attempt to remove the Vice President’s bustier. Indeed,
    the Vice President is a manly man, and there can be no reasonable
    comparison of him to Janet Jackson. You asked about analogies to Howard
    Stern, but it’s easier to make this point.

    With respect to the law, it is true that the Vice President has gone on
    Fox television in order to un-deny the incident, and now unfair commentators
    in other (jealous) media claim some analogy between his alleged obscenity and Mr. Stern’s. However, as the Vice President explained in a fair and balanced manner, his utterance made him feel good, as the co-leader of the Administration in charge of immediate and long-term decisions. Mr. Stern, however, has often said that he does not feel good about the Administration. So this is, in legal parlance, a “big difference” between the Vice President and Mr. Stern.

    In any event, the Vice President’s suggestion as to a contorted posture
    that might be assumed by the Senator was plainly not an obscenity but merely an
    explanation of a loophole in the Defense of Marriage Act.

    Furthermore, Howard Stern opposes the President. Senator Leahy opposes
    the President. There is therefore a connection between Stern and Leahy.
    Pointing out that connection is the job of any fair and balanced Commission.
    Consequently, it is your duty to alert the nation to the fact that
    Howard Stern and Democratic Senators are in an alliance to undermine
    America. Therefore, if asked about the false analogy between the Vice
    President’s (locker-room) humor and Mr. Stern’s (liberal) filth, you should say that
    logic compels you to fine all Democrats to the limit of their campaign funds and to ban them from access to the airwaves. Precedent for that action is found in the self-regulatory proscription of accurate information on Fox News.

  • http://unquote.pitas.com scrapmonkey

    “I guess I never thought of a corporation as a defamable entity. Is that the case in most legal systems?”

    depends what you mean – global quasi-legal systems are becoming increasingly relevant. and under Chapter 11 of NAFTA, corporations essentially get personhood – the right to sue governments for “appropriation” of profits thru regulations. it’s a mutation of the protection granted by the US constitution against government misappropriation of personal assets. similar rights are enshrined in other trade deals and generally recognized by the WTO.

    and now this. i can’t imagine any current context under which microsoft would win this case. for now. but… slippery slope, anyone?

  • http://johnbeck.tv/tax-foreclosures.html John

    Will they? should they? these are the two questions to be answered.