The Constitutional Attack on Shareware and the Internet...

Enclosed Below is an open letter to Senators, Congressmen, The President and The Vice-President. This letter was written by Richard Stallman of the Free Software Foundation (FSF).

Letter follows:

[This is an announcement from the Free Software Foundation and a request for your help. Please forward widely.]

Everyone who writes or supports free software needs to be concerned about the "loser pays" tort reform proposal. This change would make it much more dangerous for an individual to sue a business for any reason--including enforcement of free software distribution terms. This applies to any free software distribution terms, not just the GNU GPL. Even the Free Software Foundation, though its resources exceed those of most free software authors, would face increased difficulty.

For the sake of free software, and for the sake of equal justice in general, please read the following article, which explains the problem and proposes a new approach.

 
 		   Making Lawsuit Reform Fair
 			-- Richard Stallman
 
 Americans sue too often.  Frivolous lawsuits clog our courts, drive up
 expenses for everyone, and are used for intimidation.  It is a real
 problem.
 
 Speaker Gingrich proposes a "solution" which is supposed to discourage
 frivolous lawsuits; but its real effect is to penalize whichever side
 has less money to spend on lawyers.  This change would make it harder
 for you to sue a business--and easier for a business to sue you.
 
 Gingrich's proposal is that whoever loses a lawsuit should pay all the
 legal fees of the winner--no matter how large or small.  There is no
 limit on how much the other side can make you pay.  If you are in a
 lawsuit with a business on the other side, the business can spend a
 lot on legal fees.  And that means they can make you pay a lot if you
 lose.  You can't do the same to them unless you are rich.
 
 This causes a problem whenever an individual sues a business.  No
 matter how strong your case is, there is a chance you will lose.  If
 the business spends a million dollars on legal fees, you must pay a
 million dollars if you lose.  If you can't take this risk, you can't
 sue.
 
 What about when a business sues you?  Once again, loser-pays favors
 the business.  If you can't afford the risk of paying the legal fees
 the business spends, you must give it whatever settlement it demands.
 
 Businesses often file frivolous lawsuits against individuals to
 harrass them for political activity they do not like.  (These suits
 are called SLAPPs--Strategic Lawsuits Against Political
 Participation.)  The loser-pays plan will actually encourage SLAPPs.
 If the business spends a million dollars on lawyers' bills, that adds
 a million dollars to the size of the threat.  With a larger threat,
 more people will decide they don't dare defend themselves, SLAPPs will
 be more effective, and that will encourage them.
 
 The unlimited loser-pays system forces the two parties in the suit to
 make a side bet over legal fees.  But it's not an equal bet.  Suppose
 your legal bill is 100,000 dollars and the business's bill is a
 million.  Then you must bet a million dollars while the business only
 bets 100,000 dollars.  That means you give the business 10-to-1 odds!
 If you have an 80% chance of winning the suit--that's a fairly good
 case--you stand to lose at those odds.
 
 Our justice system already gives a large advantage to whoever has more
 money.  The unfair bet on legal fees would add to this unfair
 advantage.
 
 To make loser-pays fair, we must put a cap on what the loser has to
 pay toward the winner's legal fees: no more than what the loser
 *spent* on legal fees.  Capped fees make the bet on legal fees a fair
 bet: the amount you collect for legal fees if you win the suit always
 equals the amount you pay for legal fees if you lose the suit.  This
 is true for both sides, with no exceptions.
 
 With the unlimited-fees system, you would have to pay the business a
 million dollars if it wins the suit.  With the capped-fees system, you
 would only have to pay a hundred thousand if you lose (the amount you
 yourself spent on legal fees).  Doubling your legal bill if you lose
 is painful enough, but not unbearable.
 
 Most Americans cannot afford even their own legal fees in a lawsuit.
 To sue, you need a lawyer who is willing to work on a contingency
 basis, being paid only if you win.
 
 How would the capped-fees system apply to contingency fees?  If you
 lose the case, your legal bill is zero, so zero is how much you have
 to pay towards the winner's legal fees.  For fairness, the other side
 should pay zero toward your legal fees if you win.  Thus, the
 capped-fees system has no effect on contingency fee lawsuits.  This is
 acceptable, because the contingency fee itself discourages frivolous
 lawsuits--lawyers won't take a case if they expect not to get paid.
 
 Contingency fees lead to abuse today when combined with other problems
 in civil law--especially the "deep pockets" rule.  But there is a plan
 to change this rule, so there is no need to attack the contingency fee
 system.  The contingency fee is the only way the ordinary citizen can
 go to court, and we must not take it away.
 
 Pro-bono legal services would not count for the capped-fees system; if
 your lawyer doesn't charge you for the case, you won't have to pay for
 the opponent's legal bill.  That is acceptable, for we need not fear
 lawyers will clog our courts by taking many cases with no fee.
 
 The unlimited loser-pays proposal is an unfair "solution" to a real
 problem.  Instead of simply saying "no", we must insist on a real,
 honest, fair solution--such as the capped-fees solution.
 
 How can you help?  By contacting your US senators and President
 Clinton.  Ask them to reject the unlimited-fees loser-pays proposal,
 and tell them what you want them to do instead.
 
 A paper letter is more effective than a telegram; a telegram is more
 effective than a phone call; a phone call is more effective than
 email; email is more effective than nothing at all.  There's no need
 to write more than 15 lines, so it won't take long.  If you like the
 capped-fees proposal, you can explain it by copying the above
 paragraph which starts with "To make..."
 
        Senator So and So
        United States Senate
        Washington DC 20510
 
 	President Clinton
 	The White House
 	Washington DC 20500
 

Thank you. Comments? EMAIL? magicman@webb.com

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