I'm going to punch you in the nose
In the deluge of the feedback over the last few days, a lot of you are really curious about aspects of Deconstructing Maui X-Stream, and wondering where the usual 'redux' post is. They're generally good questions and curiosities, and they all have answers.
The problem is -- at least for all intents and purposes -- Maui X-Stream came out and told me they're trying to figure out how to punch me in the nose, and it's something I have to take into account.
When a lawsuit like this starts to get going, there is something called the 'discovery process' that has to take place. The discovery process is very time consuming and methodical process that is supposed to take the surprises out of a court room.
I get to see and know everything that may be relevant to the case, and vice-versa. Basically, it's expensive, and everything I answer would be admissible, used against me, and make it much easier and cheaper for the other side.
They may or may not actually follow up on their threats, but you really just have to assume they will, plan accordingly, and listen to the advice of your lawyer. What I can say is that everything is in there for a reason, and I do look forward to eventually putting out the usual 'redux' post.
Posted by drunkenbatmanMay 17, 2005, at 04:20 PM
Comments (14)
Posted by: LD at May 17, 2005 05:19 PM
They will never sue. If they do they will be required to prove that they did not steal the open source code you allege they included with their product. It would be suicide for them to continue because it is so blatantly obvious they stole it and a court case suing you would prove it and be used to turn around and shut down their entire business.
I can understand your caution, and I know deep down you aren't sweating it. I'd love to see them try though :)
BTW, I have it on good authority that a press release from MSX should be out today. I don't believe it for one second, but we'll see if it happens.
Posted by: rob at May 17, 2005 05:20 PM
Good luck, hope everything goes ok :)
Posted by: Dustin at May 17, 2005 06:34 PM
You rule drunkenbatman!
Posted by: superfunkomatic at May 17, 2005 06:39 PM
best of luck. welcome to the wonderful world of litigation.
Posted by: wicak at May 17, 2005 06:49 PM
dear DB, power to you sir. there used to be a company whose motto went something like "truth and technology will triumph over bullshit and bureaucracy", i think this is pretty universal.
salam.
Posted by: MACC at May 17, 2005 10:05 PM
I would have to agree with LD.
Disaster would be the word for them if
they brought this to trial.
Serve up the spirits.
Posted by: Vanitas at May 17, 2005 11:53 PM
DB, with a little Captain in me, let me say:
Having read your exposé over time, and looking around a bit on the outskirts, it looks like you don't have all that much to worry about. What you've been working on, it seems clear on this end, falls squarely under the rubric of good, solid, journalistic reporting that has very legitimate value to the public. Given that you have reasonable evidence for your statements, and this is the US, not, for example, the UK, you should be able to weather this one.
I've been heartened to hear that you've been able to secure legal representation that you can afford. I suspect any judge (and make sure you offer to pursue the prospect of a jury trial, because from the evidence that you have presented, I suspect they wouldn't want that *at all*) would look at the suit and say, what the hell are you yapping about? To Maui-X, that is.
I'm sorry you're going to have to deal with the inevitable crap that comes from this. As they say, keep the faith, and keep on fighting.
Posted by: at May 18, 2005 12:19 AM
New statement about VX30.
All they say is, "nope, nothing to see here."
http://www.mxsinc.com/documents/VX30_Final_Stmt.pdf
That's the exact same BS they said about CherryOS and they were dead wrong. Not to mention the piles of evidence presented on this site regarding VX30 and the multiple GPL projects they "borrowed" from.
I am honestly amazed at these people. I have to say that if I were to ever meet them in person I think I would give them a swift kick in the teeth.
Posted by: LD at May 18, 2005 12:19 AM
That was me!
-LD
Posted by: Jean Doute at May 18, 2005 06:08 AM
I went through a similar experience several years ago (albeit much less publicized!). Receiving notice of the lawsuit felt like (I imagined) a diagnosis of cancer.
I wrote a detailed description (similar to the information you have posted on your blog) describing my side of the story, at the request of an attorney friend. He took my text, cleaned it up a bit (it turns out that expletives are better left out of a document of this nature...), and then proceeded to obtain a complete, unequivocal, 100% capitulation from the opposing side, signed satisfyingly by the AH who had initiated this process against me.
I felt that I had acted correctly in every way in my dealings with the company suing me (as I feel that you have acted correctly in your matter), and the justice system totally confirmed this. I am left with a strong conviction that the justice system does work and that "truth will out." Hang in there.
p.s. Thanks for your interesting posts, in general. If he/she exists, I suppose your sidekick would be named "Tipsy Robin"?
Posted by: J Osborne at May 18, 2005 06:19 PM
although this could turn out to be an interesting case for journalistic protections - an actual test case for "Are bloggers actually journalists and entitled to protections as such?"
Er, not really. There aren't any special journalistic protections involved here. The bar for proof of libel isn't any lower for "real" journalists. Unofficially they are actually held to a higher standard for that kind of thing.
Basically MSX will have to prove that
- DB's statements were untrue
- DB knew they were untrue, or failed to take reasonable steps to ensure they were true
- DB intended to cause harm to MSX when making the statements
MSX has to prove all three of those things. In addition there are some other defenses, such as "it was obviously satire, or otherwise humorous and nobody of average intelligence would have mistaken it for a true story" (which is how Larry Flint managed to avoid being bitch slapped by Jerry Falwell).
DB ought to be able to do a creditable job of proving #1, and failing that, #2 looks like a slam dunk to me. Of corse I'm not a lawyer, and the law classes I had in high school are close to two decades behind me now.
When I said journalists are unofficially held to a higher standard, it is generally #2 that gets more scrutiny. If the journalist turns out to have been wrong they are held to a higher standard in showing that they did make a real effort to uncover the truth. A non-journalist might manage to get away with "well I talked to my best friend, and then wrote down what he said!", where as a journalist would be expected to have gotten at least two people to confirm a "fact". This isn't a law, but it tends to be how things are viewed.
Posted by: B. Berenberg at May 28, 2005 10:13 PM
Basically MSX will have to prove that
1. DB's statements were untrue
2. DB knew they were untrue, or failed to take reasonable steps to ensure they were true
3. DB intended to cause harm to MSX when making the statements
Actually, it depends on the jurisdiction. In some states (I want to say most, but I haven't researched it), all that MSX has to prove is that DB made the statements and that they harmed MSX. Unless the statements were made against a public figure, there is no requirement for intent - the statements could have been made negligently, not knowing they were false, and not intending to cause harm.
Furthermore, truth is usually a defense to libel, meaning that the burden is on the person who made the statements to prove that they were true. If that is proven, however, then MSX cannot win any damages.
Posted by: B. Berenberg at May 28, 2005 10:13 PM
Basically MSX will have to prove that
1. DB's statements were untrue
2. DB knew they were untrue, or failed to take reasonable steps to ensure they were true
3. DB intended to cause harm to MSX when making the statements
Actually, it depends on the jurisdiction. In some states (I want to say most, but I haven't researched it), all that MSX has to prove is that DB made the statements and that they harmed MSX. Unless the statements were made against a public figure, there is no requirement for intent - the statements could have been made negligently, not knowing they were false, and not intending to cause harm.
Furthermore, truth is usually a defense to libel, meaning that the burden is on the person who made the statements to prove that they were true. If that is proven, however, then MSX cannot win any damages.
Well, I suppose looking from an optimistic point of view, at least you can say that you know where they stand - there's no ambiguity really. (Well, OK, there is - will they sue, won't they sue, but...). But common sense will surely prevail, although this could turn out to be an interesting case for journalistic protections - an actual test case for "Are bloggers actually journalists and entitled to protections as such?" - i.e. on the one hand, you're "just" a blogger so you shouldn't be able to...err...speak frankly and dare I say truthfully about a company because of that; on the other, well - I shal leave that to your counsel. :D
Best of luck in whatever shit they throw at you. I have faith that "right" will prevail.