Slander: Could Microsoft be sued for slander?

[cantormath]

A Question to the Community......?

I have a real question, I am not trying to be a smart *** here.

Could microsoft be sued for slander of ANY kind for making claims about Open Source products without supporting evidence? I mean this with regards to the mention of 235 patents that are being infringed upon by Linux and/or other open source products.



Slander:
In law, defamation is the communication of a statement that makes a false claim, expressly stated or implied to be factual, that may harm the reputation of an individual, business, product, group, government or nation. Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against criticism.

I would think that these claims are hurting OSS, at least temporarily, or is an attempt to cause harm by creating fear in the public about OSS. Microsoft provides no support to these claims of infringement and they present them as fact. Could the EFF (http://www.eff.org/) start a class action on behalf of the entire OSS Community?
Again, I do not know, however, I would think if Microsoft was sued, they would have to say which patents are being infringed upon regardless of which way a law suite of this nature went for them.

Anyone with any opinion on this is welcome to post. I am hoping there are some lawyers on the forum who might know how plausible this maybe.

--
"As we open our newspapers or watch our television screens, we seem to be continually assaulted by the fruits of Mankind's stupidity."
-Roger Penrose

[troymcdavis]

Could microsoft be sued for slander of ANY kind for making claims about Open Source products without supporting evidence?

In short, yes, but don't expect it to go far. IANAL, but at least in America, it's really hard to get someone convicted of slander, even if what they are saying is not true. Also, who would be filing the suit? Linux users? The Linux trademark owner? The corporations who sell Linux and Linux products? The court might not recognize any of these groups to have legal standing in this case due to the nebulous nature of Linux. On top of that, Microsoft's claims probably are true, so it would be next to impossible to get anything further than off the ground (the problem is that the patent system allows this sort of thing). Throw Microsoft's seemingly limitless financial resources (which could be spent on some serious legal representation) into the equation, and you'd have to have a serious tolerance for humiliation if you're still thinking about putting up that fight.

America is a very litigious society where you can sue just about anyone for just about any thing. But slander, libel, and defamation cases have a long history of precedents that would not bode well for the case you propose.

[Ireclan]

Well, I don't remember much from my law class (it primarily delt with business law but had a small section on personal law), but from what I DO remember, slander lawsuits are by their very nature hard to win, because you must prove definitively that Microsoft's claims have damaged OSS in some way. This is often difficult. Then there's the fact that you can't bring ANY slander lawsuits if you're a "public figure" (ie your job or lifestyle already renders you vulnerable to slander). I believe the OSS community would fall into the classification of a "public figure". Then we get into the question of whether a group entity can sue for libel or not...

Edit: Dangit, someone beat me to it!

[cantormath]

who would be filing the suit? Linux users? The Linux trademark owner? The corporations who sell Linux and Linux products?
I would think the EFF could file the suite on behalf of all of the Open Source Projects involved with the Linux Project. I do believe that since Microsoft is not saying who or what the infringments are, everyone could be part of the suite.



The court might not recognize any of these groups to have legal standing in this case due to the nebulous nature of Linux.
I think the courts would consider any valid arguement from anyone, at least a citizen, as long as the grounds are filed correctly. Again, I do not know.



On top of that, Microsoft's claims probably are true, so it would be next to impossible to get anything further than off the ground (the problem is that the patent system allows this sort of thing).

If they are true, it would be great for the FOSS community to know what they are so we could all program around them and end the claims. MS is not, IMO, making claims of infringment because they are true, I believe, as the evidence has shown, IMO, MS is doing it to scare the public out of using Open Source. At least the arguement could me made.
The point of the suite would be to find out what the infringments are.....