Actually if microsoft was complicit in planting a patent infringement bomb in anyone's code, then agency theory might have something to say about that. I'm saying IF. Considering the shenanigans they pulled in the past, I wouldn't be completely surprised.
If not, patent licensing or even forfeiture may be an equitable remedy.
IANAL, but it seems to make sense. Proving it is something else.
Actually, the TOS is one of those boilerplate "XYZ corp reserves the right to ban anyone in its sole and final discretion" ones.
All of the rules are just convenient excuses for when microsoft wants to ban you, and as far as your rights go, there's no difference between you actually breaking a rule and Microsoft wanting to get rid of you just because they feel like it.
And HR and legal BOTH put up with it instead of investigating?
Ok, your manager is a shithead, and HR and legal both either got their heads up their butts, or are in on it.
Since it's a publicly traded company, you may also want to escalate this internally. Tell the board of directors about BOTH the embezzling AND the fact that HR and legal didn't do squat about it.
Lastly, if it's not past the statute of limitations for embezzling, I would suggest you report this as a criminal offense to the local DA or SEC.
You need to get copies of your performance reviews, pronto.
If you get booted or axed, they seem spiteful enough to deny you evidence of your good behavior, that and they'd really hate to be called on their "bad term" markdown.
I'd start covering my ass now, rather than later. Once you're out, you may find evidence hard to come by.
I think the low percentage of cases appealed to SCOTUS that actually review is a symptom of how overworked the court system is.
We need to implement a loser pays system.
For those of you say that would put a burden on the little guy, I disagree for the following reasons
1. Big companies that use lawyers to squash people usually win a settlement anyway, so at worst, all you'd have is a guy bankrupting out of a set of attorney's fees that he would have skipped in the first place. 2. The truly innocent won't be afraid to stand their ground when wrongly sued, because their legal bills will evaporate if they win. 3. Vexatious litigants will have more to lose from filing a bad lawsuit, and the legal system's caseload will evaporate as a result because, owing to the potential for elevated jeopardy, people won't be so eager to sue at the drop of a hat. 4. Judges, now with the load of crap taken off their backs, can take the time to review the cases they preside over more thoroughly, and accordingly, do a much better job. 5. With the courts at the bottom rung getting the breathing space they need to focus and do the job correctly, the appeals system will have fewer screwups to process, especially if appeals are limited to actual errors and not just someone hoping to reroll the dice.
Except for GNU's philosophical rhetoric, the GPL is the perfect license to use in general. Anyone wanting to contribute to a GPL project has to give up
On other notes...wouldn't waiting for the market to get critical before surfacing with a submarine patent be considered "laches"? Why are the courts letting them get away with being lazy poachers?
If rambus really wanted to enforce its patent rights they'd have brought up their patents right then and there.
I mean, come on, there's gotta be some sort of estoppel or whatever that says rambus slept on its rights by waiting for ripeness.
An employee keeping money they didn't earn is plain dishonest no matter what the amount. In fact, I read of a guy at a restaurant who worked at a bank. Some execs were there, and they witnessed him palming a pat of butter and not pay for it. They were so shocked that, instead of giving him a promotion, they fired him. He lost his job over a small pat of butter. "He who is unfaitful in little is unfaithful in much" and all of that jazz.
MS may be reaping bad karma, but any crooked workers ripping them off in the process are sowing bad karma of their own.
I think the problem is that people in general love it when they get something that isn't theirs. The thrill of a windfall, I suppose, plus the entitlement mentality binding to any odd thing that happens to plop into your lap whether it's yours or not.
Add to that MS's bad reputation and you get Nelson saying "Ha ha".
Legally, here's how I think it will work, assuming the letter of the law is followed, no courtroom drama gets things twisted, and lawyers don't try to extort people (some pretty iffy assumptions at that, mind you):
1. If the settlement agreements have the correct amount
The employees received income they were not LEGALLY entitled to, and have a fiduciary obligation to return it. And MS owes any underpayments.
Simple as that, the error isn't binding since it never made it to the "meeting of the minds".
2. If the settlement agreements reflect the actual amount
the legal agreement stands as valid, the employees get to keep it as agreed as it was a unilateral mistake by MS that the employee had no way of knowing about. Who can expect a simple peon to be on the lookout for an accounting blunder like that? They'll probably just trust the beancounters not to give legal a screwed up figure in the first place.
Anyone who did see the overage probably wouldn't pipe up about it unless they were Honest Abe (tm), though technically, finding out about it and keeping mum would give them a mens rea culpability for conversion. However, orwellian technology being as absent as it is, fat chance proving it.
Unfortunately, if someone got shorted, they're out of luck here, since the legal document SIGNED by the employee prevails, and only pure ethics by MS would matter, ethics that are both legally forbidden by shareholder fiduciary duties AND also notably absent on any employees that got a windfall.
The errant legal agreement would prevail and force the accounting records to be amended.
Either way, the schmuck in the payroll department would also be on the hook for any losses he caused microsoft as a result of his blunder that didn't get recovered, since making this sort of blunder may constitute negligence and/or professional malpractice.
I'd call you an honorless piece of scum exploiting a blunder on MS's part to keep money you have no legal right to, and sneering with a protruded tongue at the fact that MS can't do squat about it now that the ship has sailed.
Shame on you, because honest people don't need to be leveraged to do what's right.
Yes. Anyone who keeps something that doesn't belong to them is an honorless cheating scumbag.
Will they?
Probably not. What possible leverage does MS have to make the employees do what they should? The ex-employees have no reason, other than honor, to give it back. MS has no leverage, they shot themselves in the foot.
Personally, I think that all the workers who don't cough up the dough are just exploiting microsoft's blunder to advantage themselves.
However, since MS has exploited weakness to make itself stronger and stabbed its competitors in the soft underbelly (netscape anyone?), I think this is nothing more than a bit of bad karma biting them in the arse.
They really have no choice but to write it off as a blunder. Expecting the ex employees to be honest? Hah, they're lying cheating human beings! What do you expect them to do?
The only way I see MS coming out ahead is by taking people to court over it and tacking on punitive damages for a breach of constructive trust. Knowingly keeping or disposing of property that isn't yours is called conversion.
MS screwed itself over and needs to let it go because of the bad PR that fighting karma will create. But those folks who kept the overpayment for themselves are a bunch of dirty rotten cheaters and should be ashamed of themselves.
And the nincompoop in the payroll department? A ripe target for both a canning and a negligence suit owing to breach of fiduciary duty. This is really the only person I see MS able to go after without a major karmic backlash. If the action was deliberate, then it's embezzling and he/she deserves jail time.
Usually, when a government agency makes insanely stupid decisions in the face of overwhelming evidence, someone's got a knife to their back or their pocketbook.
I think you meant to say flak, but I agree with slack.
Companies that use their market power as an excuse to be lazy with standards compliance should be spanked. And MS doesn't get ENOUGH bashing about that, IMO.
Yes, them doing something right is commendable. Whoopdedoo, they finally saw the light and started following the rules. Which I commend.
I say not "congratulations" but "it's about damn time".
Kudos? Sure! But they're already in the hole far enough as it is to receive net praise.
I'll start cheering when they make doing right things a habit.
Slashdot Mirror
Ok why the hell is slashdot running an ad for "report piracy" by the BSA?
And in the YRO section of all places?
The irony...
ob Microsoft Antitrust: Reminds me of why the BSA's power needs to be trimmed in some way.
Actually if microsoft was complicit in planting a patent infringement bomb in anyone's code, then agency theory might have something to say about that. I'm saying IF. Considering the shenanigans they pulled in the past, I wouldn't be completely surprised.
If not, patent licensing or even forfeiture may be an equitable remedy.
IANAL, but it seems to make sense. Proving it is something else.
If MS takes it to court and gets its way, then we're screwed.
We need prior art and we need it soon.
Actually, the TOS is one of those boilerplate "XYZ corp reserves the right to ban anyone in its sole and final discretion" ones.
All of the rules are just convenient excuses for when microsoft wants to ban you, and as far as your rights go, there's no difference between you actually breaking a rule and Microsoft wanting to get rid of you just because they feel like it.
If that is true I think it would constitute an implicit patent license.
You caught your manager committing a crime?
And HR and legal BOTH put up with it instead of investigating?
Ok, your manager is a shithead, and HR and legal both either got their heads up their butts, or are in on it.
Since it's a publicly traded company, you may also want to escalate this internally. Tell the board of directors about BOTH the embezzling AND the fact that HR and legal didn't do squat about it.
Lastly, if it's not past the statute of limitations for embezzling, I would suggest you report this as a criminal offense to the local DA or SEC.
Which reminds me:
You need to get copies of your performance reviews, pronto.
If you get booted or axed, they seem spiteful enough to deny you evidence of your good behavior, that and they'd really hate to be called on their "bad term" markdown.
I'd start covering my ass now, rather than later. Once you're out, you may find evidence hard to come by.
I think the low percentage of cases appealed to SCOTUS that actually review is a symptom of how overworked the court system is.
We need to implement a loser pays system.
For those of you say that would put a burden on the little guy, I disagree for the following reasons
1. Big companies that use lawyers to squash people usually win a settlement anyway, so at worst, all you'd have is a guy bankrupting out of a set of attorney's fees that he would have skipped in the first place.
2. The truly innocent won't be afraid to stand their ground when wrongly sued, because their legal bills will evaporate if they win.
3. Vexatious litigants will have more to lose from filing a bad lawsuit, and the legal system's caseload will evaporate as a result because, owing to the potential for elevated jeopardy, people won't be so eager to sue at the drop of a hat.
4. Judges, now with the load of crap taken off their backs, can take the time to review the cases they preside over more thoroughly, and accordingly, do a much better job.
5. With the courts at the bottom rung getting the breathing space they need to focus and do the job correctly, the appeals system will have fewer screwups to process, especially if appeals are limited to actual errors and not just someone hoping to reroll the dice.
Most providers call that a TOS violation.
They don't want you saving money, so they forbid you to modify your phone.
We call that the v3 GPL :)
Except for GNU's philosophical rhetoric, the GPL is the perfect license to use in general. Anyone wanting to contribute to a GPL project has to give up
On other notes...wouldn't waiting for the market to get critical before surfacing with a submarine patent be considered "laches"? Why are the courts letting them get away with being lazy poachers?
If rambus really wanted to enforce its patent rights they'd have brought up their patents right then and there.
I mean, come on, there's gotta be some sort of estoppel or whatever that says rambus slept on its rights by waiting for ripeness.
Two wrongs don't make a right in my book either, and the whole logic of "the pot calling the kettle black" doesn't make the kettle any cleaner.
Honestly, I think it's principle.
An employee keeping money they didn't earn is plain dishonest no matter what the amount. In fact, I read of a guy at a restaurant who worked at a bank. Some execs were there, and they witnessed him palming a pat of butter and not pay for it. They were so shocked that, instead of giving him a promotion, they fired him. He lost his job over a small pat of butter. "He who is unfaitful in little is unfaithful in much" and all of that jazz.
MS may be reaping bad karma, but any crooked workers ripping them off in the process are sowing bad karma of their own.
I think the problem is that people in general love it when they get something that isn't theirs. The thrill of a windfall, I suppose, plus the entitlement mentality binding to any odd thing that happens to plop into your lap whether it's yours or not.
Add to that MS's bad reputation and you get Nelson saying "Ha ha".
Legally, here's how I think it will work, assuming the letter of the law is followed, no courtroom drama gets things twisted, and lawyers don't try to extort people (some pretty iffy assumptions at that, mind you):
1. If the settlement agreements have the correct amount
The employees received income they were not LEGALLY entitled to, and have a fiduciary obligation to return it.
And MS owes any underpayments.
Simple as that, the error isn't binding since it never made it to the "meeting of the minds".
2. If the settlement agreements reflect the actual amount
the legal agreement stands as valid, the employees get to keep it as agreed as it was a unilateral mistake by MS that the employee had no way of knowing about. Who can expect a simple peon to be on the lookout for an accounting blunder like that? They'll probably just trust the beancounters not to give legal a screwed up figure in the first place.
Anyone who did see the overage probably wouldn't pipe up about it unless they were Honest Abe (tm), though technically, finding out about it and keeping mum would give them a mens rea culpability for conversion. However, orwellian technology being as absent as it is, fat chance proving it.
Unfortunately, if someone got shorted, they're out of luck here, since the legal document SIGNED by the employee prevails, and only pure ethics by MS would matter, ethics that are both legally forbidden by shareholder fiduciary duties AND also notably absent on any employees that got a windfall.
The errant legal agreement would prevail and force the accounting records to be amended.
Either way, the schmuck in the payroll department would also be on the hook for any losses he caused microsoft as a result of his blunder that didn't get recovered, since making this sort of blunder may constitute negligence and/or professional malpractice.
I'd call you an honorless piece of scum exploiting a blunder on MS's part to keep money you have no legal right to, and sneering with a protruded tongue at the fact that MS can't do squat about it now that the ship has sailed.
Shame on you, because honest people don't need to be leveraged to do what's right.
I think MS got what they deserved here.
Should the employees give it back?
Yes. Anyone who keeps something that doesn't belong to them is an honorless cheating scumbag.
Will they?
Probably not. What possible leverage does MS have to make the employees do what they should? The ex-employees have no reason, other than honor, to give it back. MS has no leverage, they shot themselves in the foot.
Personally, I think that all the workers who don't cough up the dough are just exploiting microsoft's blunder to advantage themselves.
However, since MS has exploited weakness to make itself stronger and stabbed its competitors in the soft underbelly (netscape anyone?), I think this is nothing more than a bit of bad karma biting them in the arse.
They really have no choice but to write it off as a blunder. Expecting the ex employees to be honest? Hah, they're lying cheating human beings! What do you expect them to do?
The only way I see MS coming out ahead is by taking people to court over it and tacking on punitive damages for a breach of constructive trust. Knowingly keeping or disposing of property that isn't yours is called conversion.
MS screwed itself over and needs to let it go because of the bad PR that fighting karma will create. But those folks who kept the overpayment for themselves are a bunch of dirty rotten cheaters and should be ashamed of themselves.
And the nincompoop in the payroll department? A ripe target for both a canning and a negligence suit owing to breach of fiduciary duty. This is really the only person I see MS able to go after without a major karmic backlash. If the action was deliberate, then it's embezzling and he/she deserves jail time.
Does anyone else besides me think a two-party system absolutely sucks?
Both parties are nothing but rubber stamps for special interest groups that use the iron triangle to get what they want.
Maybe whoever regged it got it from godaddy and just never assigned it an IP address.
The problem with "opt out" is it makes "yes" the default. If something happens and the "user override" gets konked, you're stuck.
Principle of Least Surprise.
Or are:
1. On the payroll of patent whores
2. Working under congressional oversight by congress people who are on the payroll of patent whores
I wouldn't be surprised if the infamous http://en.wikipedia.org/Iron_Triangle has anything to do with this.
Usually, when a government agency makes insanely stupid decisions in the face of overwhelming evidence, someone's got a knife to their back or their pocketbook.
I think it says something not that they use apps, but that they are passing up itunes.
What about itunes don't they like so much that they have to use apps as a workaround for?
Which is just fine...it's open source anyway.
I think you meant to say flak, but I agree with slack.
Companies that use their market power as an excuse to be lazy with standards compliance should be spanked. And MS doesn't get ENOUGH bashing about that, IMO.
Yes, them doing something right is commendable. Whoopdedoo, they finally saw the light and started following the rules. Which I commend.
I say not "congratulations" but "it's about damn time".
Kudos? Sure! But they're already in the hole far enough as it is to receive net praise.
I'll start cheering when they make doing right things a habit.
It's not /.'s fault if the target of their previous story did an about face and changed their position before everyone got their gripes out.
Actually, it doesn't follow.
You don't get to fine someone for penalties because you don't have governmental power.
Unfortunately, if this guy was looking to mess with you, you just painted a big fat target on a weak spot.
When dealing with asses, never show weakness.
Otherwise, sad to say, people who enjoy causing pain will know exactly where to hit you for maximum damage.