[free-sklyarov] Adobe wipes their hands clean of Skylarov

[Jeme A Brelin]

On Wed, 5 Sep 2001, David Haworth wrote:
> 1. Are there any laws against making provable false statements in
> advertising materials (or even better, against making statements that
> can't be backed up by evidence, like we have in the UK)?

There are "truth in advertising" laws.  Generally, the laws (which can
vary from state to state) are against making provably false statements.

I know there are laws in some states specifically regarding making
statements of a health/medicinal nature that are not supported by the Food
and Drug Administration (or at least a requirement to note that such
claims are not supported by the FDA).

> 2. Are these laws criminal laws, or merely civil laws (ie to whom do
> you make the complaint)?

Generally, civil.  There are a few exceptions, but I couldn't tell you
what they are.

> 3. Have Adobe made any false claims about the security of their eBook
> reader (similar to the "100% burglarproof" claim by another vendor
> whose name I forget right now)?

Well, certainly they haven't told the WHOLE truth, have they?  I mean,
publishers are actually using the thing.

> 5. Does the old chestnut "I refuse to give evidence on the grounds
> that I might incriminate myself" actually exist as a right, or is it
> just something from the movies?

This is one application (supported by the Supreme Court) of the Fifth
Amendment to our Constitution.  (The first ten Amendments to the
Constitution of the United States were an adaptation of Thomas Jefferson's
Constitution of the State of Virginia adopted as federal law in an attempt
to ensure that the rights of the people are not infringed.  Collectively,
the first ten Amendments are known as the Bill of Rights.)

Amendment V.
No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a grand jury, except in
cases arising in the land or naval forces, or in the militia, when in
actual service in time of war or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use,
without just compensation.

So, you see, a person cannot be compelled to be a witness against himself
in a criminal case.  That's why it's not legal for a prosecutor to call a
defendant to witness at trial.  If the defendant does take the witness
stand, it must be in his own defense, though the prosecutor may, at that
point, cross-examine.  Cross-examination is limited only to questions
pertaining to information revealed in direct examination and the defendant
may choose not to provide any information to the prosecution in court.  
Such exemption does NOT exist in a civil case, however.

> My line of reasoning is that if Adobe were threatened with a suit for
> false advertising, they might be reluctant to testify in the Sklyarov
> case on grounds that they might incriminate themselves. Without
> Adobe's testimony, the DoJ's case would surely fall apart in their own
> hands.

There's one of the thousand reasons why a corporation shouldn't be
considered a "person" in the eyes of the law (which they ARE in the US...
which is the root of MANY of our problems).

I don't think there's a criminal act to which Adobe might be exposing
themselves for criminal prosecution (except, perhaps, misleading the
FBI... but I don't have any evidence that happened).

I'm not sure how the self-incrimination clause of the Fifth Amendment
applies to corporations.  Certainly any employee or owner of the
corporation can be compelled to testify against the corporation.  I'm not
sure what it would mean to have a corporation testify against itself.

J.
-- 
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     Jeme A Brelin
    jeme at brelin.net
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