Success is relative. It is what we can make of the mess we have made of things. - T. S. Eliot
Microsoft Corporation v. Testking
August 14, 2007
New Follow-up below!
Microsoft Comments! See the WebCast here! https://www.livemeeting.com/cc/lmevents/view?id=msft052307lm_pm&pw=ATT0900&cn=.
August 8th, 2006, The Microsoft Corporation filed a Civil lawsuit in the United States District Court, Western District of Washington, against "1-20 (at the time unnamed) John Does d/b/a (doing business as) Testking", notibly the largest distributor of braindumps and creator of braindump material on the Internet today.
The basis for this lawsuit according to the original complaint for case number 2:06-cv-01116-JLR - which can be accessed on Public Access to Court Electronic Records (PACER) for the US Courts - is "an action based upon violations of the The Copyright Act 17 U.S.C §101, et seq. and the Digital Millennium Copyright Act U.S.C §1201. All claims herein arise out of [the] Defendants' unlawful copying and distribution of Microsoft's Certification Exams. Plaintiff [Microsoft] seeks injunctive relief; monetary damages; an award of attorney's fees and costs; and such additional relief as this Court deems appropriate." If you'd like to see all allegations brought forth by Microsoft, check the link which states the legalities involved on why and how Testking would be charged. Summarized, it is a violation of Copyright.
Later stated in the Complaint it is stated that "Microsoft is unaware of the true names and capacities of defendants sued herein as John Does 1-20, inclusive, and therefore sues these defendants by such fictitious names. Microsoft will amend this complaint to allege their true names and capacities when ascertained."
As I have done more extensive research than the press would like to add to this, and we at CertGuard are extremely interested in this case, I have found that it was later amended to show "SHAHZAD SHAHNAWAD [SIC], an individual; OVE LUNDBERG, an individual; CERTIFICATION TRENDZ, LTD., a foreign corporation, and JOHN DOES 4-20 d/b/a 'Testking,'" are now named.
One of the first things that I personally find interesting is that Shahzad Shahnawad, as stated in Defendant Shahnawaz's to Dismiss for Lack of Personal Jurisdiction filed by his attorney for the newly named parties listed above, has, as the document states, "Microsoft carries the burden of demonstrating that this Court has personal jurisdiction over Mr. Shahnawad.". Further, "Asserting personal jurisdiction over Mr. Shahnawad violates federal due process. The personal jurisdiction analysis begins with the forum state's long-arm statute." and, "An assessment of Mr. Shahnawad in his personal capacity reveals that he has not purposefully availed himself of the benefits of Washington. Mr. Shahnawad resides in and is a citizen of Pakistan. Mr. Shahnawad has never been to Washington or any other part of the United States; he owns no property or investments in Washington; he pays no taxes or maintains any bank accounts in Washington; he has never called or sent mail to purchasers of test preparation materials in Washington; he has never sent advertisements or shipped any products to Washington; and he is neither employed by a Washington company nor has agents in Washington.". Take note that he has not been in the United States for this any of this proceeding, but rather his attorneys are representing him from Pakistan.
Even though it is later stated that he has had minimal contact with individuals in Washington in regards to "[t]wo of Certification Trendz's independent contractors in Washington perform[ing] third-party product integration and website and database housecleaning, program templates, and prepar[ing] advertisements for general use by Certification Trendz.", that it is "[s]imply put, Mr. Shahnawad has absolutely no contacts with Washington sufficient to establish personal jurisdiction in his individual capacity".
The point that I am getting at is that I have to agree with Mr. Shahnawad's attorney that Microsoft has no legal jurisdiction in Washington over this case and that "[a]ll factors balance in favor of Mr. Shahnawad. He has therefore made an exceptionally compelling case that any exercise of personal jurisdiction by this Court would be unreasonable and violate federal due process. Id. ('[W]here the plaintiff is an international corporation and where the defendants are individual citizens of a foreign country who lack connections to the United States and whose purposeful interjection into the forum state has been very limited, the [state's interest] must give way'). Accordingly, he should be dismissed from this case."
Also, it should be noted that "[c]onsidering that Microsoft is a large international corporation with worldwide offices and distribution of its products, litigating in Pakistan, Sweden, or the United Kingdom would not burden it [to seek adjudication in these countries' courts]. And while Microsoft bears the burden of proving the unavailability of an alternative forum...Microsoft has not shown that it is precluded from bringing suit in any of these alternate forums."
Regardless, I am not condoning or agreeing that Mr. Shahnawad or his associates are without fault as they are the proprietors of Testking and its websites. I am also not condoning or agreeing to the use, distribution, production of braindumps by any company or individual. Either way, the listed "John Does" are most likely the individuals who will take the fall as I predict that Microsoft will, in fact, 'make a deal with the Devil' and settle out of court. This, in turn, dismisses the charges against Mr. Shahnawad and his associates, as they are not legally able to pursue them in a United States Federal Court. The reason I get this feeling is due to four Motions of Dismissal which can be found on the Docket Report, Document #34 - Minute Order Setting Trial Date And Related Dates - which states that civil mediation is set to occur, and the last document shown on the docket, the Second Amended Notice of Hearing which is the final document submitted and listed on January 30th, 2007, as another Motion to Dismiss.
Will Microsoft settle? It would appear I think that even considering trying to sue someone outside of the country who has never even been here, done business here (Internet again does not count), and had little to no contact with individuals here is silly enough. Why isn't Microsoft pursuing Certification Trendz in Pakistan, the United Kingdom, and Sweden?
Now, I've had my own personal theories. One is that biggest way that Testking got the exam material that it has is by corrupt test proctors using high quality cameras and monitoring the tests and not the individual. Rogue testing centers, per se. CertGuard's thoughts are that the testing centers are illegally gaining access to the Questions and Answers database directly from the computers in the centers, possibly after hours, or even during hours when individuals are testing. Frankly, I think they can see the questions on a monitor in the back room. It's not difficult. Or, you could take that idea and say that both the examinee and the proctor were culprits and the examinee was paid to fail the test, or pass, intentionally in exchange for a payment of some sort. Then again, it could solely have been the examinee that had devices on their persons that were cameras "pen-sized" or smaller that wouldn't have been noticed unless they revealed that fact. Either way, unless a testing center was under a constant attack or somewhat known intrusion by corrupt staff, ignoring the guidelines for a testing environment's security, these are the only ways that I could see Testking existing and continuing to produce braindumps. With that in mind, this does not make Mr. Shahnawad irrefutably innocent. Someone who states in open court that they did not believe that they were causing Microsoft any harm, and yet sees what their company has become, is only focused on monetary gain.
What wouldn't Microsoft gain from not taking out the name servers that are registered for Certification Trendz in Virginia, Washington, Illinois, and California to continue to allow the IT Industry in the United States to fill with illegitimate MCP's? This baffles me and the rest of the team at CertGuard. There is more that they could do, yet they take on trivial matters here that a legal consultant could have easily told them to pursue, and most likely win, in another country.
Further more, this leads me to believe that since Microsoft could not have their way, the actions taken against India, Pakistan, and China starting April 1, 2007 are in spite of a failed legal process. Although I do agree that the actions taken will be effective, I believe that the measures will only be effective for a short period of time. This may prevent 'gunmen' from functioning in these countries temporarily, but forgery is as old a practice as the documents themselves. Even though the statistics show that these countries hold certifications 10:1 to the United States, and that 80% of tests taken in India were not by Indian residents, the 'gunmen' and creators of these tests will make themselves vulnerable for a short period of time by new marketing and then find an even more underground method of distributing trade secrets.
Yet, this raises even more interesting questions:
In closing, I have made several attempts to contact the legal defense for TestKing for a statement and I have made several attempts to contact Microsoft's legal department for a response to the simple questions: "What is happening now that mediation is a factor in your case and are you planning to allow the case to dismiss". Also, I am neither a lawyer nor a paralegal. I have I never served as one of the two, but I have done extensive research on law - specifically the DMCA. Maybe my perspective of what I have cited is incorrect, however there is no finality to this case as of yet. Even if Microsoft were not able to bring Testking and its associates to justice, this is still a problem and it would by no means legalize the use of Testking's material for "study guide" purposes. I urge Microsoft to take further action on not only the current International and United States violators, but themselves as well.
Microsoft has released an unofficial statement as of recent: "Microsoft has reached a settlement with Testking to immediately cease illegal use of Microsoft Certification exam content. Companies like TestKing provide a "shortcut" to IT certifications by helping people with limited product knowledge and expertise pass IT exams. Ultimately, this devalues the achievements of the many individuals who legitimately passed exams thanks to in-depth study and hands-on technology experience. Under the terms of this settlement, Testking has agreed to immediately cease marketing, selling, distributing, publishing, reproducing, disseminating, offering or otherwise knowingly transferring in any way any actual Microsoft Certification Exams content." Also, unofficially, Testking has by early June 2007 to be in full compliance with the court order.
This was decided on, ironically, April 5th, 2007. If you wish to see the legal documentation on the Microsoft and Testking Settlement, you can find it here. Many of these questions were answered in the webcast on Exam Security and Integrity which CertGuard paricipated in at the top of this page. Either way, the webcast is still being broadcasted and you can find more information here on Trika's Blog.
Ultimately, this does NOT make TestKing legitimate for other Certification Vendors, nor does it make them legitimate as a Practice Test Provider. If you're looking for a legitimate Practice Test Provider, please check our our reviews page. If you are searching for a legitimate Practice Test Provider, please check our search page to see if you're getting quality and braindump free training.
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