Pirated software used to create help content in Microsoft's Windows XP
By Wolfgang Gruener, Senior Editor
November 15, 2004 - 13:54 EST
Chicago (IL) - Members of a former software cracking group have discovered that audio files created with one of its cracked programs are distributed with each copy of the Windows XP operating system, possibly exposing Microsoft to a large-scale copyright infringement lawsuit.
The content in question can be found on every computer with Windows XP as operating system installed. Nine WAV audio files located in the folder " "Help\Tours\WindowsMediaPlayer\Audio\Wav" in the Windows installation directory include a signature of "Deepz0ne", a member of former cracking group "Radium". If the files are opened not with an audio player, but with a HEX editor or simply in Windows' own text editor Notepad, the last line displays as "000-04-06 IENG Deepz0ne ISFT Sound Forge 4.5".
A source confirmed to Tom's Hardware Guide, that the signature is "authentic for the cracked version of Sound Forge 4.5" and relates to the cracker Deepz0ne. "The Radium group has been dissolved about four years ago, but still meets every week in a casual manner," the source said. "One of the members circulated the information at a birthday part last weekend and then pitched the story apparently to Germany's PC Welt magazine," he said. PC Welt published the story the same day.
Sound Forge is a professional audio editing software popular among audio enthusiasts. Sony recently has purchased the intellectual property of the product from Sonic Foundry, which developed and sold version 4.5.
According to Benjamin Kern, attorney at Chicago-based law firm Gordon & Glickson LLC, the use of a pirated version of Sound Forge can result in a copyright infringement claim: "Other legal issues, such as patent infringement, trade secret misappropriation and contract breach may also be relevant, but copyright infringement is the most prominent," Kern said. It is unclear at this time, if the current owner Sony or the orginal developer Sound Forge have the right to bring legal action against Microsoft.
When software is transferred from one party to another, the transfer agreement often also includes the transfer of a right to bring an action for infringement, according to Kern. "In this case, if Sound Forge transferred its copyright in the software to Sony, it is not clear whether Sound Forge or Sony owned the copyright at the time the infringement was committed," Kern said.
At this time, liability also appears to be unclear. "Ultimate financial responsibility depends on whether a copyrighted work was provided to Microsoft by a third party, who may be responsible to Microsoft, by contract or otherwise, for any liability Microsoft could face," Kern explained.
Potential remedies for a copyright infringement include actual damages plus profits of the infringer, or set statutory damages. Given the profits Microsoft rakes in with Windows XP, even a small percentage of the profits could result in an unexpected windfall for Sony.
Sony and the Business Software Alliance were contacted by Tom's Hardware Guide but so far have not yet responded to the accusations. Microsoft declined to comment "at this time".
