Against the backdrop of all the vendors who've been indemnifying their customers against this, that, or the other lawsuit, I keep telling people that it's highly unlikely that vendors are going to sue you if the software you got from someone else (eg: Red Hat) infringes on a patent that belongs to someone else (eg: Microsoft). You could argue that using software that infringes on someone else's patent is no different a form of misappropriation of intellectual property than outright piracy. But in the end, most IT vendors can't afford the bad public relations that goes along with suing customers.
Although SCO tried to pass them off as plain old suing of Linux users because of how Linux allegedly infringes on its copyrights (the basis of the suits was nothing of the sort), when it filed suits against Daimler-Chrysler and Autozone for license violations, a lot of business technology customers I talked to were left with a sour taste in their mouths. It just ain't good for business. Just supposing SCO is able to continue operating after its current legal engagements with IBM and others, will you really want to do business with such a litigious company?
In fact, even if you're closer to purposeful infringement -- for example, you're running 100 copies of Office where you only paid for 50 -- vendors more often than not prefer to stay at arms length by having the Business Software Alliance act on their behalf in "resolving" the problem (rather than approach the users directly).
But there is one type of transgression that will cause Microsoft's legal eagles to descend directly upon you like a ton of bricks and thankfully so. It's the transgression where you deceive Microsoft's customers into divulging information that they wouldn't otherwise divulge (through techniques like spyware) or you purposefully cause harm to the normal operation of their computers through phishing, spam, viruses, trojan horses and the like.
Yesterday, a US District Court shut down the Web operations of ERG Ventures LLC after the Federal Trade Commission discovered the company was violating the FTC Act which makes unfair and deceptive practices unlawful. ERG was allegedly loading spyware of the worst kind on users computers. Not only did the spyware "phone home" and change end users' settings like their browser's default homeÂ page and antivirus configurations, it downloaded other malware. In hopes of preventing any repetition of ERG's transgressions, in the lawsuit it filed, the FTC is seeking a permanent injunction against ERG and its affiliates. According to an IDG News Service story:
A U.S. district court has shut down a Web operation that is accused of secretly loading spyware and other malevolent software onto millions of computers after promising users free screensavers and video files, the Federal Trade Commission (FTC) said Monday.....The FTC accused ERG Ventures and an affiliate with tricking consumers into downloading a piece of spyware called Media Motor, which installs itself and downloads other malware.
In its suit, the FTC also wants the defendants to surrender all of their gains from the illegal practices. It's not the "proverbial" slap on the wrist, but you know how this story ends. When the dust settles, the people involved will find a way to do it again. They'll do business under some other name in some other state (or maybe off shore) and someone's sister-in-law will have a cousin that agrees to be the chief executive. Unless of course, they're too broke to even afford a tin cup in search of handouts (seed capital). So, if there's a time you want someone to kick these miscreants while they're down, now is that time. Enter Bill Gates.
The ink from the US District Court's findings was still drying when Microsoft filed it's own suit against the people involved with ERG. According to Microsoft's press release:
Microsoft Corp today followed the Federal Trade Commission's lead in fighting deceptive spyware operations by filing an action against persons allegedly distributing a notorious spyware program, against which the FTC recently took action. Microsoft's suit alleges that Timothy P. Taylor and others used screen savers and other seemingly benign programs as "Trojan horses" to surreptitiously install unwanted software on consumers' computers. Microsoft seeks damages from defendants on the grounds that their installation practices violate the Washington Computer Spyware Act and the Washington Consumer Protection Act.
"We commend the FTC for exposing this spyware operation," said Scott Stein, senior attorney with the Internet Safety Enforcement Team at Microsoft. "Microsoft was proud to provide technical assistance to the FTC and also to take legal action against one part of the operation targeted by the FTC.".....
...."We have a responsibility to help protect our customers and to do whatever we can to prevent this kind of practice."
Responsibility? OK, that's a little self-aggrandizing. But let's allow it. Because what other company has stepped up to the plate the way Microsoft has, sending a very clear message that if you mess with its customers, it will not only help the government track you down and punish you, it will unleash it's own Ivy-league legal fire and brimstone of its own upon you.
Although I can't remember exactly when it was, a few years back, I saw Microsoft chairman Bill Gates talking about malware -- spam in particular -- and it was quite obvious from the expression on his face that it was one subject that, for him, was like fingernails on a chalkboard.
How many times have you thought to yourself "If only I could afford an army of lawyers, I'd put that guy out of business for the good of mankind." Or, "if only I was a lawyer..." I routinely think this when telemarketers refuse to stop hounding me. I fantasize about setting a legal trap where I tell them that their calls are being recorded and I inform them that if they call me again, I will sue their company for some ungodly sum of money. Then, after they call me again and I capture it on tape, and we go to court, they can't say I didn't warn them of the exact consequences should they not respect my privacy. My fantasy includes pulling-in the best lawyers to help me set the trap in a way that they can't get out. I picture a sympathetic judge and jury, both of whom have been victimized themselves and who have no compunctions about throwing "the book" at the defendant. Can you tell? These folks make me angry. So much so that if I was so ridiculously wealthy that I could afford to legally pursue them to the end of the earth, I would do it in a heartbeat.
Not only do these miscreants apparently make Bill Gates that angry, Gates has the resources to realize the fantasy that you and I can't. And he is. Last year, after Microsoft had already established quite a track record for legally pursuing the malware community to the end of the Earth, I asked Aaron Kornblum (Microsoft’s Internet safety enforcement attorney at the time, I'm not sure if he's still the guy) who inside Microsoft was the muscle behind his legal pursuits? Who's idea was it to go after these guys and who was authorizing the expenditure of Microsoft's resources to do it. Answer? Bill Gates himself.
Microsoft has always been quick to commend federal agencies for doing their part in clamping down on malware. But federal agencies can only do so much and don't have nearly the resources nor the resolve that Microsoft has when someone like its chairman decides to go on a personal vendetta. So, say what you will about Microsoft's products, services, business practices, and so on. And I'm sure there are those who will argue that Microsoft doesn't do anything unless it serves its own purposes -- drawing a line from legal clampdowns to eased burden on its support lines (or something like that). We all have our opinions and in many cases, they are not very flattering. But, in this case, while Microsoft is handing out pats on the back to the FTC, let us give our own thanks to Microsoft and Bill Gates for burning its cash to do something we'd do too, if only we could afford it.
You go Bill. You go.