February 2010: Microsoft blinked in the Civil action 3:08CV1602 in Federal District Court, Hartford, Connecticut in their action against me, an individual d/b/a (“doing business as”) Compatible Computers. We settled and they walked away. But I am not finished yet.
Against everyone’s advice, often it felt like it was against the world, I stood up alone, with no lawyer or anyone else at the defense table and only reason on my side. And now I want to tell my story.
One year ago a Microsoft investigator asked me to build her two computers with Microsoft Windows XP and Microsoft Office 2003 on them. Microsoft did not sell those products, wanting the world to move to newer Windows Vista and the Office 2007 so I offered to buy the products she wanted for her on eBay and install them for her. According to Microsoft’s expert testimony what I bought from eBay was pirated but the software looked alright to me.
In October of last year I received a large packet from a legal firm in a big city and at the same time my local newspaper ran a full banner headline “Microsoft Sues Local Shop” above the fold line on the front page. It wasn’t until six months later I learned this July 2007 sale was the alleged “piracy”.
If you are thinking, as I did, that this is just a mistake, that Microsoft did not intend to prosecute me for such a thing you are wrong. They did, and they prosecute people all over the world with new cases regularly. I talked to at least five different Perkins Coie and Microsoft lawyers and they expected people like me to pay scores of thousands of dollars for software piracy like mine. I do not know the merits of many of their cases against others, but I know my case and they are serious professionals.
I have every right to name names, to tell you who said what, where and when. I negotiated that right because Microsoft wanted total confidentiality. What was filed in the case is accessible through the Federal courts system, and I can supply hundreds of pages of letters, email, and supporting documents as well. I am writing this because I have a willingness to help others in similar situations. Only the specific terms of the settlement document itself, at Microsoft’s insistence, are secret.
If you are a computer dealer Microsoft can and will ask you to buy their software from an eBay or like vendor and sell it to them on terms of your choosing. If it is counterfeit, and it is very difficult to tell, they will prosecute you. In my case they claimed I was liable for nearly two million dollars on this one purchase, but they would settle quickly for $35k so long as I agreed not to do it again.
This should be screamed from the mountaintops, published in Newsweek, it should be common knowledge that buying eBay software makes one a pirate and liable for millions of dollars in penalties.
And, again, Microsoft is serious about this, but curiously secretive about it as well. The most senior Microsoft legal representative I met explained to the judge the he did not want to be a principle in a book I might write. They called the ability to tell the “forensics”, the differences between genuine and pirated software a “trade secret”. Their lawyers answered with silence when I suggested, on several occasions, they should publish a warning somewhere. I believe this is an effort to enrich their legal department, a money making venture and spin-off industry when the software development side of their business falters.
When I was accused of piracy everyone, except my employees who knew better, just assumed there was truth to the charges. Although I did not know the specifics of the allegations for six months, business declined, people asked me about it, and I had nothing to say except to express confusion. Even members of my family mused there must be something to the charges
Lawyers wanted $20k retainers to help me and I certainly don’t blame them. What I did was complicated and time consuming. I started a web site, www.againstgoliath.com and quickly realized that it is very difficult to simply state the issues. I believe I could have won lost income from Microsoft in a counterclaim for damages if I had hired a lawyer but I prefer to earn my money helping my customers. I decided it is more important to let others know what is going on.
Motions were filed, discovery progressed, we accused each other of withholding information, but eventually it became clear what Microsoft intended, what information they had and what they did not have. We met twice with a Magistrate Judge who encouraged us to settle but Microsoft wanted secrecy and I wanted to be able to tell my story.
We settled and I got what I wanted and now we will we never know if laws are violated when Microsoft asks a computer dealer to buy their software from eBay and install it on a computer for them. The court does not have to decide if Microsoft is wrong to call such a computer dealer a “pirate”. I have walked away from claiming a decline in business is a damage caused my Microsoft public allegations of that what I did was piracy.
And there are many other the unanswered questions, like why Microsoft does not want their actions to be common knowledge. My livelihood was on the line and Microsoft along with everyone else assumed was guilty even though they had very little against me to present to the court.
I fought for the ability to publicize my plight, to let you and everyone else know what happened in my case. Only you, who are reading this now, can decide whether or not it was worth the fight.
Copyright 2010 Kent Johnson
