Subject: Re: APL license - What about the enforced logos?
From: Rick Moen <rick@linuxmafia.com>
Date: Wed, 29 Nov 2006 20:22:30 -0800

Quoting John Cowan (cowan@ccil.org):

> They don't have to be able to legitimately require it.  They just have
> to have sufficient power to induce a settlement through fear.  If you
> don't have money to defend yourself with, you have no legal rights
> (in civil cases) at all.

It's a serious concern.[1]  At the same time, I offer, pro bono publico,
some rather magic words $SPOUSE once used to strike terror into a
lavishly VC-funded CEO who'd threatened her with (baseless) litigation:
"Discovery should prove interesting."

That is, civil litigation is _so very_ much a double-edge sword.[2]


> If anyone at all sent me a C&D letter about anything at all, I'd bend over
> backwards to comply.

You would be making a very common, and easily understandable, error.

I really should go double-check on the requirements of civil procedure
before saying this, but I _think_ I remember that tort actions cannot 
be filed until after the plaintiff shows the court proof that the
defendent has received a complaint and had a statutory amount of time to 
cure the alleged tort, e.g., if you didn't (at bare minimum) get a
_certified mail_ complaint letter, then you can just laugh your ass off
and throw it away.  

In my (strictly hypothetical!) case of CentralOS, the webmaster pulled
all mention of Scarlet Sombrero from the site upon mere receipt of a
complaint _e-mail_.  An e-mail!  I mean, that's just sad:  Scarlet
Sombrero didn't even bother to lavish 39 cents on non-certified-mail 
postage and a #10 envelope -- and CentralOS ran screaming in terror
without ever stopping to think.

There are also numerous other procedural requirements that must be
satisfied, before a court (and thus you as the prospective defendant)
would take any such complaint seriously, such as venue and jurisdiction.


> I'm not rich enough to afford lawyers and not poor enough to be
> judgment proof -- to say nothing of possible injunctions.

You're rich enough to volunteer that you'll do anything that a C&D
letter orders you to, without regard to merit:  That sounds awfully
_expensive_, to me.  (And you've said it on a searchable mailing list
archive, too.)

Me, since I'm cheap, I'd spend some time measuring the C&D against my
relatively meager understanding of the rules of civil procedure.  If it
looked even halfway credible, I'd pay for a one-hour legal consultation.

As it turns out, however, a very high percentage of C&Ds sent to
computerists are provably bullshit by their terms.  Why?  Because
companies know it _works_ -- and because the most successful lawsuit is
one you never need to file because the other guy does what you say, for
the cost of a certified mail letter.

Or, if they think you're gullible, a form mail cranked out by a
paralegal with a 39 cent stamp on it.

Or, if they think you're a computerist and thus presumptively really,
_really_ naive, an e-mail.


[1] Yr. humble servant at the age of ten experienced a wrongful-death
lawsuit brought by his mother against a most unpleasant and underhanded
Fortune 50 corporation, and so spending most of one's teenage years in
Federal court is not a hypothetical matter.  (Yes, we won, thanks.)

[2] So are threats of same, actually.  Many a large corporation whose
paralegals went hyperactive with the C&Ds has found certain victories
Pyrrhic.  Examples should be easy to come by.