Microsoft Should Be Liable For Shoddy Security, Suit Says

If she gets what she wants, the lawsuit could be disastrous for Microsoft. But an intellectual property attorney said that the law appears to be on Microsoft's side, and the plaintiff will find her case to be extremely difficult.

At issue is an accusation against Microsoft that's commonplace among the company's opponents. Plaintiff Marcy Hamliton, 50, a film editor living in Los Angeles, charges that shoddy workmanship by Microsoft allowed criminals to commit identity theft against her. She says her social security number and bank information were stolen online, and she was required to do significant work to fix the problems caused by thieves. "This is a typical case where identity theft turns your life upside down," said Hamilton's attorney, Dana Taschner, of Newport Beach, California. "Her financial information was compromised, and bank accounts were compromised or seized to the extent that law enforcement became involved."

Taschner declined to specify what Microsoft software was used, how Hamilton's information was stolen, and the extent of the damage she suffered, saying she would make that information public during trial.

The lawsuit was filed Tuesday, Sept. 30, in Los Angeles Superior Court.

Microsoft said it will fight the lawsuit vigorously.

"We will actively defend ourselves against the proposed causes of action, as well as the proposed class action certification," said company spokesman Sean Sundwall. "The complaint misses the bigger point, which is that the problems caused by viruses and other attacks are caused by criminal acts by the people writing the viruses." Microsoft is cooperating with law enforcement to bring computer criminals to justice, Sundwall said.

He added, "I want to make sure people understand that we certainly take responsibility for our software and we recognize the need to build more secure software. Security is a top priority for us and we are making it a priority to build the most secure software possible."

The fact that the damage is done by criminal activity, and not by Microsoft itself, is one of the elements that will make Hamilton's lawsuit a tough one to win, said intellectual property lawyer Mark Radcliffe, of the firm Gray, Cary, Ware & Freidenrich.

"Generally, you are not responsible in court for somebody who has acted criminally," he said.

Additionally, Microsoft will be protected by the shrinkwrap licenses on its software.

"Obviously, there is a reservoir of sympathy among computer users. But shrinkwrap license agreements have been reviewed and upheld in virtually all circumstances."

Consumers are provided a greater degree of protection; a business attempting to sue Microsoft over security would find it even more difficult to win, Radcliffe said.

"The law provides a greater degree of protection for consumers or people using it for home use, but I don't think that is going to be enough to overcome the way the courts have interpreted software licenses," Radcliffe said.

Microsoft advertising could also work in the plaintiffs' favor. If Microsoft advertised that its software is extremely secure, then it could be held liable for successful attacks against it.

This story courtesy of Internetweek.