Lawyers in the "Windows Vista Capable" class-action lawsuit against Microsoft have asked a federal judge to force the company to use its Windows Update service to notify potential class members, court documents filed Thursday revealed.
In a motion submitted to US District Judge Marsha Pechman, lawyers for the plaintiffs laid out a notification plan that would include print ads in publications such as USA Today, banner ads on sites including Yahoo.com and MSN, and a message that would be delivered to Windows users by Microsoft's automatic update service.
Noting that Microsoft has repeatedly said it cannot identify the people who bought PCs under its Vista Capable marketing campaign in 2006 and early 2007, the plaintiffs' attorneys pitched Pechman on the idea of using Windows Update to reach them. "Although Microsoft cannot identify class members, it can communicate to them through its Windows Update program," the motion filed Thursday said.
Windows Update is the mechanism best known for delivering security patches to Windows users on the second Tuesday of each month. However, the service also is used by Microsoft to push non-security updates, and in some cases has been used to patch third-party products.
It has not, however, been used for legal messages such as the one proposed by the plaintiffs' lawyers.
The attorneys argued that Windows Update would be a "low-cost" and "efficient" way to reach potential class members. One of the plaintiffs' expert witnesses, independent IT consultant Ronald Aelpin, said that the Windows Update notification would "cost little more than the amount necessary to write, test, and implement the small piece of software code necessary to provide the notice."
Tom Horn, a second expert used by the plaintiffs' lawyers, was even more concise, estimating that it would take Microsoft just "one to two man hours to complete the program, address quality assurance issues, tag and upload the Update as ready for distribution."
Supporting documents also filed yesterday with Pechman spelled out the exact wording the notice would use: "Court Ordered Notice Regarding Windows Vista Capable Class Action. If you purchased a computer certified as 'Windows Vista Capable' and not also bearing the 'Premium Ready' designation, your rights may be affected by a class action lawsuit. Click here for more detailed information."
A link in the notice would lead users to a specially-crafted site with more information on the case.
Andrew Storms, director of security operations at security vendor nCircle Network Security, who has been critical of Microsoft in the past for using Windows Update to push non-security updates to users, isn't keen on the lawyers' idea. "Where do we draw the line for using Windows Update?" Storms asked. "I don't feel comfortable using Windows Update for this; it just doesn't seem like the right method for communication."
In any case, he argued, the tactic may backfire. "Windows Update's primary purpose is software updates, so this would probably be viewed as a spam message," he said. "And who is going to read it? Users click through legal notices all the time, so this may not even be worthwhile."
Microsoft did not respond to a request for comment on whether it believes using Windows Update for a legal notification is appropriate.
The Vista Capable lawsuit charges Microsoft with deceptive practices in letting PC makers slap a "Vista Capable" sticker on PCs when it allegedly knew that many of those systems could run only Vista Home Basic, the entry-level version. The suit, which began in 2007 and was granted class-action status in February 2008, claims that Home Basic is not representative of the Vista that Microsoft marketed to consumers.
The case is perhaps best known for the hundreds of internal Microsoft emails Pechman made public earlier this year. The messages detailed top Microsoft executives' problems with Vista shortly after it was released, and included comments from Steven Sinofsky, the head of Windows development, who complained about his printer. "My home multi-function printer did not have drivers until 2/2 and even then [they] pulled their 1/30 drivers and released them (Brother)," Sinofsky in an email dated a month after Vista's retail release.
Normally, plaintiffs pay for any class member notification campaign, but the motion also asked Judge Pechman to reverse the charges, and make Microsoft pay if it loses a pending partial summary judgment motion.
According to the plaintiffs, the class member pool number about 15 million people, and the proposed notification campaign will cost just over US$187,000.
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