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I was thinking along these ( http://www.steptoe.com/publica... ) lines. If companies can incur liability for not applying patches in a timely manner, then Microsoft can conceivably incur liability for not providing them. That was in 2003.

Microsoft have been actively considering the issue. Even if their legal department is doing a good job of keeping would-be plaintiffs at arms length. See also here: (https://www.ft.com/content/4569a00e-c272-11e4-ad89-00144feab7de) [note: paywall].

I am not a lawyer of course, but I have a lively interest in many things legal ... especially insofar as they pertain to liability.

If I were in Microsoft's position, I'd probably listen to legal counsel as they advised me to minimise my exposure to potential claims, simply by showing due dilligence in providing patches. Regardless of the quality of the underlying software and the quality of the patches, being able to show due dilligence to a jury will make it that much more difficult for any claimant to strike paydirt. Plus it's good to keep control over your product. If you can do maintenance, you can do telemetry.You never know when it comes in handy.

I haven't heard of any cases where a piece of software has been banned from use in a country because of that country's political policies

Huh? A tonn of software — mostly having to do with encryption — can not (or at some point could not) be exported to places like Iran, for example. You "haven't heard" of it?!

The publication is under an undue burden if it has to comply with a license restricting it from doing certain business in countries it otherwise does business with

Not at all. The publication does not need to comply with the software's license, because it does not need to conduct the research. It is already completed research, which was published 11 years ago! People wishing to verify the study's results — reproducibility being a key of scientific method — can do so in another country.

For example, there is a whole list of medical studies currently considered unethical or even illegal. They can not be recreated for this reason, but their but we can still read the results — as well as cite and discuss them.

almost certainly taken on legal grounds

Nope, by all appearances — including the "fuck this Nazi" reaction of many Slashdotters right here — it was political at least in part.

Hence my question of whether this "software availability" policy has ever been applied before by the same publication.

Due diligence is a blank cheque for companies to lie. The due diligence, if done ... diligently... is supposed to catch these things. There is a whole discipline in the business world that focuses on these transactions.

Here is just one example of how common due diligence is...

http://www.steptoe.com/assets/htmldocuments/Jeffrey%20Weiner%20Chapter%20Business%20Due%20Diligence%20Strategies%202010.pdf

If the executives were doing their job, they would be assuming that whomever they are trying to acquire is going to lie to them and is going to do everything that they can to inflate the value of their company. The more I deal with lawyers, the more I realize that the laws are there because everyone is trying to screw everyone else. If someone is a CEO and has not realized that yet, they need to be fired. The corporate world is an evil, predatory place where con artists are paid big money to deceive, lie, cheat and steal to get ahead.

Every single major consulting firm (Deloitte, KPMG, etc) all have extensive M&A practices. Presumably whomever HP engaged to handle the M&A work dropped the ball in a major way.

This is the kind of thing that is likely going to result in a shareholder lawsuit. This is just the first inning. HP is doing what they can to get out ahead of the problem. I would not be surprised if they end up going after their auditors, or whoever they hired to do the M&A. If their own internal legal team handled it, they are screwed.

The DMCA requires that you have looked at the file to determine that it in fact is a copyright to which you own

No, it actually doesn't. See the court's opinion in Rossi v. MPAA, no. 03-16034 (December 1, 2004) (http://www.steptoe.com/assets/attachments/1740.pdf), where the proprietor of InternetMovies.com "urge[d the 9th Circuit] to adopt a rule that in order to have 'a good faith belief' of infringement, the copy- right owner is required to conduct a reasonable investigation into the allegedly offending" material. The appeals court declined Rossi's invitation. The example I chose wasn't the best, and it's obvious to you and me that it's a pre-release copy of Windows NT 5. But it's not inconceivable that there are more ambiguous filenames etc. out there that a less geekily informed admin might, with a good faith belief, interpret as being a copy of a copyrighted work s/he was authorized to act on.

Nor have they read this advice.

So no, the FCPA is practically on-paper only. Corporations obviously thumb their collective noses at it if they plainly justify it in their orientation PowerPoint slides.

It is all in comparision... Other Western countries don't have an FCPA-like law even on paper. And no, it is not an "on-paper only" law — there were and are prosecutions under the act. Here are some lawyers describing themselves as experts on defending against such prosecutions, for example...

If you receive one, you need to get legal advice before complying.

The proposed legislation to criminalize NSL noncompliance, S.1680, has no cosponsors and isn't going anywhere.

The FBI can still go before a judge and get a subpoena, but that requires judicial authorization, and you can fight a subpoena in court if it's overreaching.

Watch out for those "always" and "never" statements. A couple of states did pass UCITA and a few court decisions have upheld parts of EULAs. On the other hand, some states passed laws making EULAs non-binding and New York courts rejected them as contract. It all depends on what state you're in -- most of them haven't adjudicated the issue yet.

1. Minors can enter into contracts, but in most cases they also have the right to cancel them (therefore, few people will sign a contract with a minor). Cancelling a contract means the minor must return the property.

2. Amending terms of sale can be legal if it's part of a contract, though all sorts of interesting "consideration" issues come up. It's really remarkable how many "rights" you can sign away in a contract.

3. The consideration for the EULA is the use of the software/music itself. This is the "you own the media but we own the code" model. Most courts will look at the opportunity for the purchaser to know the license terms prior to sale -- ie printing them on the box is better than making them available on a website is better than hiding them on the CD itself. Still, courts can be remarkably business-friendly places.

4. Again, some courts have ruled that click-through agreements are valid. A four-year-old summary of prior cases is available online.

5. This is an interesting scenario, and in all the cases of which I'm aware, there were other issues that resolved the case without forcing the judge to reach a decision about circumventing the EULA.

The Fourth Amendment is only as strong as the judges who are asked to approve the warrants.

If you have good and decent people serving as judges, you have nothing to worry about.

For that matter, if you have good and decent people serving as police, you have nothing to worry about.

Abstractions like the Fourth Amendment are only as good as the people who are sworn to uphold them, i.e. our constitution is really a state of heart, not a state of semantics.

PS: The FBI's request is available here, in PDF format:

http://www.steptoe.com/publications/FBI_Petition_f or_Rulemaking_on_CALEA.pdf

One of the reasons that CALEA-compliant solutions for packet-mode technologies are perceived to be unavailable is that manufacturers have been reluctant to develop them until clear standards have emerged. This has permitted carriers to claim that their extension requests are based on an absence of technology, rather than the absence of an industry standard. As a result, carriers mistakenly qualify for extensions of time based on their own inaction in developing standardized and nonstandardized CALEA solutions. CALEA was never intended to countenance such trends of indefinite compliance. There are alternative solutions for packet-mode technologies currently available that would allow carriers to meet their CALEA Section 103 obligations. As the Commission has previously acknowledged in evaluating extension requests, the absence of standards versus the absence of technology are separable issues.

The CALEA implementation process (both with respect to packet-mode technologies and generally) is not working because there is no specific, concrete implementation and compliance plan.

I also don't think the lawyers at the FBI realize just how much larger digital communications are than analog communications. For instance, a child molester can sit at his computer and download several gigabytes of child porn every night - it's conceivable that he could be downloading on the order of several hundred gigabytes [i.e. non-trivial fractions of terabytes] of child porn every month. If an ISP is served with a warrant to monitor his activities, then somebody [the ISP? the FBI? the NSA/Echelon?] will have to have a repository to store those hundreds of gigabytes [terabytes?] of child porn that he's downloading. This is not at all a trivial problem in and of itself, especially when you think of the excess storage capacity that will be needed so as to have the capability to monitor this sort of activity in a nation of 300 million people.