It’s second nature to avoid legal problems like the plague in our society. People know that this natural aversion to attorneys and lawsuits exist, and there are some on the web that would use that fear to their advantage.
If you ever find yourself in a situation that has the potential to turn into a legal problem, here is how my company handles it on the web. My way might not be the best for everyone (I am certainly not a lawyer) but we are 2-0 following this advice to date.
I received an email yesterday from Alexander Peter Kowalski. He was upset that a program he created was identified as a malicious piece of spyware by the Schrock Innovations Maintenance Checkup Home Edition anti-spyware software as well as by Computer Associates.
Here is the email he sent me, edited for length:
<My program> was not written for any malicious purpose -> apkapp2backgrounddaemonprocessengine.exe
(it was in fact, written so folks with older versions of Apache Webserver
could lanuch it & not see it onscreen.
So – answer me this:
What is it doing there in your tools under “Threat Details”. Above all else, why didn’t you write me, & ask me about it – as I am easily found online, since my program has “resource strings” that are visible showing my name?
Remove my program from your lists as a malicious tool, as it associates me in a “threat details” list.
My reputation as a professional in this field clearly shows in multiple publications in this field in written print, & also online in various GOOD capacities since 1996 to present day. This has happened since I was first published in Windows NT Magazine in 1996 & others to present day, with helpful tools online in programs, & professionally sold wares that were finalists @ Microsoft Tech Ed 2000-2002 for EEC Systems.
It’s rather insulting. Please remove it as a “threat”, it is NOT one, not by a long shot & smears MY GOOD NAME.
Alexander Peter Kowalski
My first impression of this email was to think, ok so he has a program that is being detected falsely by our software. It’s Sunday and I am at Platte River State Park watching my son and his cousin play. I will have Adam look into it on Monday morning. He sounded pretty upset, so I replied to let him know we were on it. Here’s what I said:
The MCHE is designed for home use and not enterprise or server use. Your program makes it on our list if at least 2 of 3 independent sources deem it a threat.
Send me the names of the files in question, and we will double check their detection status.
Sent from my iPhone.
LESSON ONE: Be very nice in your first email if you want to get what you want. If I trusted every jerk who emailed me about why his spyware application is detected by our software I would go blue in the face. Even though this guy’s email was poorly written and rambled about things that were of no consequence to his question, he was well on the path of getting what he wanted.
After I was home from the park and my son was down for his nap, I got this email from the same man:
1 site has already responded, & has removed apkapp2backgrounddaemonprocessengine.exe already! Write he to verify if need be, here: <Media Bit Design email removed>
I am giving you every opportunity to do this in a nice quiet way, & I’d appreciate that, as I feel you may have been misled. Here is why:
CA (Computer Associates) will be contacted in the a.m…. & if it is not removed by they, I am suing for libel. In fact, I feel that they intentionally misprinted my name (missing my first name & listing it under Peter Kowalski only, here:
Listing ONLY “Peter Kowalski” not my full name, easily apparent in the program itself, as Alexander Peter Kowalski. Thus, I’d never find it online) & this would be part of the grunds I am suing on if need be for libelling me online since 2004. This is not an idle threat, it is a certainty. I am rather insulted & furious regarding this incident that has long been hidden from myself via what I feel are nefarious means.
This is libel, no questions asked.
LESSON TWO: Don’t threaten in your email, and definitely don’t use words you don’t understand. The fastest way to destroy any goodwill when you are asking for cooperation is to threaten someone. If for one second Pete thinks I care about the other company that removed his software or the fact that he is calling Computer Associates in the morning he is mistaken. This email from him accomplished nothing and actually put me on guard that this might become a legal situation.
Again, I am not a lawyer, but on a point of reference for something to be libel there has to be an intentional and malicious intent to harm another person in print. Pete feels slighted that Computer Associates listed his problem as malware and then had the audacity not to use his proper name in the threat database.
You can’t have it both ways Pete. Either they wanted to harm you (and therefore would have identified you properly) or they spent 30 seconds reading the documentation in your code and slapped it in the detections. The latter is more likely.
I did not always understand these “get it done” concepts myself completely in the past. If I had, I might be 1-0 instead of 2-0 in my company’s legal battles. I decided to give Pete some advice for his call with Computer Associates the next morning. Here is what I told him:
Once again, I would warn you not to threaten a lawsuit. Our corporate policy is to let people who threaten go ahead and spend the thousands of dollars in Federal court to sue us. In fact once you threaten to sue you are actually breaking the law if you don’t follow through.
I have to admit, I was a little surprised by his reply:
My attorney will be met with by myself tomorrow in regards to this & we shall see what is what, in regards to Computer Associates, Spybot, AdAware, or any others involved at this point, including yourself apparently. I was fair about this to you in asking nicely that you remove it. Now, it is time to do what I have to.
(Trust me, I intend to follow thru on consulting her in this matter since you are now apparently involving yourself in this as well in refusing to remove my wares from your lists)
No need for reply.
LESSON THREE: Once someone threatens to call their lawyer, take it to court, says “we’ll see you in court,” or anything of the like, CALL THE BLUFF every time.
It costs money to sue someone, it costs money to have a lawyer send a letter, and in this case I would bet my breakfast that his attorney will tell him since there are no monetary damages he has little hope for a financially viable outcome even if he wins in court.
I don’t know where Pete is, but chances are he is not in Nebraska. That means he will have to sue Schrock Innovations in Federal Court which is a very expensive, time consuming, and LENGTHY legal process. How many thousands of dollars is the person threatening you willing to spend on a suit that will result in little to no monetary gain after nearly 5 years in the court system? Again, call the bluff. You will probably never hear from the person’s attorney, and if you do just tel their attorney to call your attorney. They will apologize, hang up and call your attorney instead. It’s pretty simple.
LESSON FOUR: Attorneys work via certified postal mail and constables of the court. That means if there is anything worth your time or attention going on you will get a certified letter from an attorney or you will get served by a constable of the court when a law suit is filed against you.
Attorneys do not do anything too serious through email, over the phone, or through standard first class mail. Typically if they do it is an attempt to request your compliance or intimidate.
So here’s my overall summary of my situation with Pete:
Pete is mad because a piece of software he has written to help some people was classified as a threat by others. Because he is recognized in his field he feels that Computer Associates practiced super double secret reverse psychology by libeling him even though they did not print his real name, or anything negative about him that was intended to harm his reputation.
Pete is mad at me because our software also detects his software as a threat. He has threatened to sue my company now.
LESSON FIVE: When someone threatens to sue you SHUT UP, refuse to communicate except for attorney to attorney communications. This keeps you from saying anything dumb in the heat of the moment and it also makes the other party step back and think. Nine times out of ten, they come back and say, ok ok ok, I’m not REALLY going to sue you…. I just wanted your attention.
There are so many ways to solve things in life outside of the legal system, so don’t be to quick to threaten to pull the trigger when you are mad. You might just find the other guy doesn’t think you have any bullets in your gun.