Mail Fraud? (Score 1)

Well, just to throw some wood on the fire, how about thinking of this in terms of fraud on the market by Microsoft. Sure, all those poor fools who bought Windows XP are restricted from pursuing pretty much ANY civil remedy by the egregious license terms dreamed up by armies of MS in house counsel. (Although someone should think about an action under California Consumers Legal Remedies Act, Civil Code Sections 1750 et seq.) Maybe those lawyers weren't thinking about the criminal laws. After their antitrust turn, you'd think they would. Maybe they think their iron clad EULA will protect them. How about this one:

Federal Mail Fraud - Title 18, Section 1341 (Frauds and Swindles) (has a nice ring doesn't it.) (Or Federal Wire Fraud for that matter - Title 18, Section 1343 - elements only slightly different.)
"Whoever" - That would include Microsoft ? a corporate entity under U.S. law, and certainly a company that has generously availed itself of U.S. criminal and civil law in pursuing its business. (Live by the sword, Die by the sword - paraphrasing Matthew)

"having devised or intending to devise any scheme or artifice to defraud"

Knowingly:
"flaws, discovered five weeks ago by independent security researchers" MS has known for five weeks, or perhaps slightly less. Easily established by the testimony of the "independent security researchers"
Or even Scott Culp - Head of Microsoft Security (Public statement against interest - not hearsay)
"This is the first network-based, remote compromise that I'm aware of for Windows desktop systems,"
Who cares whether it is the first. It is enough that he, a lawful and selected representative of Microsoft clearly speaking on behalf of the company, is and was aware of it. Certainly during the time it took to write a patch. But there was a better remedy that would have avoided defrauding hundreds of thousands of customers. Suspension of all sales.

Makes a false statement:
This one is easy. Copious statements representing the adequacy of security of this product. Millions upon millions on advertising to convince us all what a secure OS XP is. Maybe we are all too used to being lied to. But the fraud is not against the /. user, it is against the poor rubes that MS tells to "fly."
Causing another to change position:
Sales may be a bit below 95 or 98, but we are still talking a large number of victims here.

And obtaining money as a consequence of the misrepresentation:

Well, they are selling it. Who in their right mind would pirate it? You could readily prove this element with their quarterly SEC filings. Official business records/legally required disclosure.

As far as the scheme to defraud, - start with the web page and work your way down. The represented reason for withholding this information is that it "threatened to undermine widespread adoption of Microsoft's latest Windows software." This is classic. They are admitting that they knew that if they told the truth, people would not buy it. Even if they didn't say this "on the record," and it is considered hyperbole on the part of the reporter, it is easily proven by the circumstances. Now editorial comment that MS is somehow anticipated to be a "catalyst for the sagging" industry is really no defense. Microsoft wanted to cause people to buy software that has a "very serious vulnerability" in order to accelerate their business.

Sounds like most mail fraud operations I've ever heard of.

"or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises,"

MS Web page: "Now Windows XP offers strong security to home computer users through Internet Connection Firewall protection, which makes your information, computers, and family data safer from intruders as soon as you start using Windows XP."

MS Web page: "Enjoy the new standard in dependability and simplicity ... Secure and private...

"places in any post office or authorized depository for mail matter or thing"

Microsoft Website - buy XP by mail -

http://www.microsoft.com/windowsxp/home/howtobuy/p urchase.asp

"Shall be fined not more than $1,000 or imprisoned not more than five years, or both."
Don't you wonder how many they sold by mail? X = n * $1,000. Y = n * 5 years.

"If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both?

Hmm? Any banks buy a copy? More than one? You do the math.

One more crime, just for good measure. (Given a couple hours I could find half a dozen more) Under California Law, Theft of Computer Services (Title 13, Section 502) includes: a) "Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network." And
b) "Knowingly introduces any computer contaminant into any computer computer system, or computer network."

Call it a bug, or after they knew about it, call it a virus. Whichever, it certainly looks like a "computer contaminant."

And now the punch line.

18 U.S.C.A. 981

981. Civil forfeiture

(a)(1) The following property is subject to forfeiture to the United States:

"(D) Any property, real or personal, which represents or is traceable to the gross receipts obtained, directly or indirectly, from a violation of--
(v) section 1341 (relating to mail fraud);
Let that one percolate, and then move on to the one I think someone ought to be working on:

18 U.S.C.A. 1961

Racketeer Influenced and Corrupt Organizations ?- RICO

As used in this chapter [18 USCS Sections 1961 et seq.] (1) "racketeering activity" means ... (B) any act which is indictable under ... section 1341 (mail fraud), "

And if the underlying facts in the Antitrust suit being upheld through ALL appeals is not sufficient to establish a "Corrupt Organization," what is?

The Attorney General must take action against Microsoft. Nothing else will amend their standard of care!